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+0,94045,1,1,"During the term of his service he made a detailed report monthly to the Secretary of the Treasury of his services and the fees provided by law, with a full, exact, and itemized account of receipts and expenditures. For the months of December, 1889, and January and February, 1890, his returns were as follows: Fees provided by law. December, 1889, paid salary of clerk, $25 ....................... $262 75 January, 1890, paid salary of clerk, $25 ........................ 311 75 February, 1890, paid salary of clerk, $25 ....................... 284 50 On each of said accounts the Secretary made and signed the following endorsement: `Approved in the sum of one hundred dollars, ($100,) and respectfully referred to the First Auditor, who will please state an account in favor of the U.S. shipping commissioner for the amount found due, payable from the appropriation for Salaries, shipping service. `The services enumerated within appear to have been necessarily rendered.' The account was stated by the Auditor, admitted and certified by the Comptroller, and paid to claimant in accordance therewith, except that the services of the clerk were wholly omitted from the account. II. Previously to that time the Secretary of the Treasury had fixed the compensation of said claimant not to exceed the sum of $100 a month by a letter addressed to him, as follows: `WASHINGTON, D.C., November 23, 1889. ` U.S. Shipping Commissioner, Mobile, Ala. `SIR: From and after the 1st proximo the compensation allowed you under section 1 of the act of June 19, 1886, will not exceed the sum of one hundred dollars ($100) in any one month. If the services performed by you in any month do not warrant the payment of one hundred dollars under the existing regulations, your compensation for that month will remain as heretofore fixed. No pay additional to the monthly compensation herein mentioned will be allowed for your services as shipping commissioner. `Respectfully yours, `C.S. FAIRCHILD, Secretary. ' The law governing the compensation of shipping commissioners is found in the Act of June 26, 1884, c. 121, § 27, 23 Stat. 53, 59, and of June 19, 1886, c. 421, § 1, 24 Stat. 79. By the first of these statutes (that of June, 1884) it is provided that — Shipping commissioners shall monthly render a full, exact, and itemized account of their receipts and expenditures to the Secretary of the Treasury, who shall determine their compensation, and shall, from time to time, determine the number and compensation of the clerks appointed by such commissioner, with the approval of the Secretary of the Treasury, subject to the limitations now fixed by law. And also that — All fees of shipping commissioners shall be paid into the Treasury of the United States, and shall constitute a fund which shall be used under the direction of the Secretary of the Treasury to pay the compensation of said commissioners and their clerks, and such other expenses as he may find necessary to insure the proper administration of their duties. By the second statute (June 19, 1886) it is provided that — Shipping commissioners who are paid wholly or partly by fees shall make a detailed report of such services and the fees provided by law to the Secretary of the Treasury, under such regulations as that officer may prescribe; and the Secretary of the Treasury shall allow and pay from any money in the Treasury, not otherwise appropriated, said officers such compensation for said services as each would have received prior to the passage of this act; also such compensation to clerks of shipping commissioners as would have been paid them had this act not passed: Provided, That such services have, in the opinion of the Secretary of the Treasury, been necessarily rendered. We think it clear that the right of a shipping commissioner to employ clerks under these provisions depends on the sanction of the Secretary of the Treasury. Indeed, the act of 1884 expressly so says. The act of 1886, while making some changes as to the method of compensating the commissioners, specifically provides that the clerks of such commissioners shall receive such compensation as would have been paid to them if that act had not passed. If the last act did not repeal the act of 1884, the plaintiff could not recover without the endorsement of the Secretary of the Treasury, since that act gives him the right to determine the number and the compensation of clerks to be appointed by the commissioner. If the act of 1884 was repealed by the act of 1886, the plaintiff was equally without the right to recover clerk hire, because under the act of 1886 the amount of compensation to be paid to the commissioner or his clerk depends altogether on the judgment of the Secretary of the Treasury, who is required by that act to certify that such services appeared to have been necessarily rendered. The Secretary formally notified the shipping commissioner in November, 1889, previous to the month for which clerk hire was claimed, that his compensation would be limited to $100 per month, and that no additional compensation would be allowed. When the vouchers were presented, including the items of clerk hire, the Secretary approved them only for $100 per month. This allowance necessarily excluded the clerk hire. The court below based its ruling upon the fact that, in approving the vouchers up to the amount of $100, the Secretary made the statement that the services enumerated appear to have been necessarily rendered. But this language of the Secretary was that which the statute required him to use in affixing his approval. As he only approved up to $100, which excluded the clerk's pay, the language must necessarily be applied only to the services which he approved, and not to those which he disapproved. To hold otherwise would be to say that, although the Secretary rejected the items for clerk hire, he yet approved them. The error below results from considering the Secretary's certificate as referring to other services than those which he approved. Judgment reversed, and case remanded with directions to render judgment for the United States.","The claimant was a shipping commissioner at the port of Mobile, Ala."
+1,89094,1,1,"(The Clarita.) I. Vessels engaged in commerce are held liable for damage occasioned by collision on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel. [] Whenever, therefore, a fault is committed whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. Consequences of the kind, however, do not follow when the person committing the fault does not in fact or by implication of law stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel sustain in some way towards each other the relation of principal and agent the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one place to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service, as they neither appoint the master of the tug nor employ the crew, nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master of the tug, is, in legal contemplation, made with the owners of the vessel employed, and the master of the tug continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation and management. Apply those rules to the case before the court, and it is clear that the owners of the burning ferry-boat are not liable for the consequences of the collision, as the evidence shows to a demonstration that the steam-tug was in the charge of her own master and crew, and that those in charge of her undertook, in the usual and ordinary course of her employment, to transport the burning ferry-boat from one place to another over waters where such accessory motive power is usually employed, and consequently that the steam-tug, in the absence of the officers and crew of the tow, must be held responsible for the proper navigation of both vessels, and that third persons suffering damage through the fault of those in charge of such motive power must, under such circumstances, look to the steam-tug, her master or owners, for the recompense which they are entitled to claim on account of any injuries that their vessel or cargo may receive by such means. Whether the party charged ought to be held liable is made to depend, in all cases of the kind, upon his relation to the wrong-doer. Where the wrongful act is done by the party charged, or was occasioned by his negligence, of course he is liable, and he is equally so if it was done by one towards whom he bears the relation of principal, but the liability ceases, in such a case, where the relation of principal and agent entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged. Grant that and it follows, beyond peradventure, that the owners of the ferry-boat are not responsible for the consequences of the collision, as it is clear that the officers and crew of the steam-tug were the agents of the owners of their own vessel and not of the burning ferry-boat. II. Suppose that is so, still it is insisted by the respondents that those in charge of the steam-tug were without fault; that the collision, as far as they are concerned, was the result of inevitable accident, though they insist that it might have been prevented by proper care on the part of those in charge of the schooner. Obviously the defence of inevitable accident finds no support in the evidence, even upon the theory assumed by the respondents, as they insist that the collision was occasioned by the fault of the schooner. Such a defence can never be sustained where it appears that the disaster was caused by negligence, for if the fault was committed by the respondent alone then the libellant is entitled to recover, or if by the libellant then the libel must be dismissed, or if both parties were in fault then the damages must be apportioned equally between the offending vessels. [] Unless it appears that both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the collision, the defence of inevitable accident is inapplicable to the case. None of the circumstances given in evidence favor such a theory, as the collision occurred on a fair, clear evening and in the open harbor, and inasmuch as the primary cause that led to it was one which ought to have been foreseen and removed by the employment of other means to attach the two vessels together it is plain that the case is one of fault. [†] III. Two faults are imputed to the schooner: (1.) That she was anchored in an improper place. (2.) That she had no watch on deck. 1. Argument to show that the collision occurred is unnecessary, as the fact is admitted, and it is equally clear that the schooner was lying at anchor with the signal light displayed required by the act of Congress, and under those circumstances the rule is well settled that the burden of proof is upon the respondents to show either that the steam-tug was without fault or that the collision was occasioned by the fault of the schooner, or that it was the result of inevitable accident. [‡] Neither rain nor the darkness of the night nor even the absence of a light from a vessel at anchor, said this court, nor the fact that the moving vessel was well manned and furnished and conducted with caution will excuse such moving vessel for coming in collision with the vessel at anchor in a thoroughfare out of the usual track of navigation. [] Mr. Parsons lays down the rule that if a ship at anchor and one in motion come into collision, the presumption is that it is the fault of the ship in motion, unless the anchored vessel was where she should not have been. [†] Undoubtedly if a vessel anchors in an improper place she must take the consequences of her own improper act. [‡] But whether she be in a proper place or not, and whether properly or improperly anchored, the other vessel must avoid her if it be reasonably practicable and consistent with her own safety. [§] Attempt is made in argument to show that the schooner was anchored in an improper place, but both the subordinate courts were of a different opinion, and the court here, in view of the whole evidence, concurs in the conclusion that that defence is not sustained. 2. Concede all that, and still it is contended by the respondents that the schooner was in fault because she did not have a sufficient watch, but the act of Congress contains no such requirement, and inasmuch as the evidence shows that the schooner was anchored in a proper place and that one of her crew was on deck, the court is of the opinion that the charge of fault made against the schooner in the answer is not sustained. IV. Plenary evidence is exhibited that all the parties present on the occasion expected that the flames would presently burst through the decks of the ferry-boat at the time the steam-tug made fast to her in order to drag her from the slip where she lay, and to move the vessel into the stream, and both parties agree that it was in view of that expectation that the decision was made to move the ferry-boat from her resting-place, nor is it questioned by either party that if those in charge of the steam-tug had used a chain instead of a manilla hawser, the object contemplated might have been safely and successfully carried into effect. Even ordinary experience and prudence would have suggested that the part of the hawser made fast to the burning ferry-boat should be chain, and that it would be unsafe to use a hawser made of manilla. Where the danger is great the greater should be the precaution, as prudent men in great emergencies employ their best exertions to ward off the danger. Whether they had a chain hawser on board or not does not appear, but sufficient does appear to satisfy the court that one of sufficient length to have prevented the disaster might easily have been procured, even if they were not supplied with such an appliance. All of these matters were fully considered by the district judge, and the same conclusions at which he arrived were reached by the Circuit Court. In those conclusions the court here concurs.",in the claim for damages.
+2,89094,1,2,"(The Clara.) In this case the owners of the schooner admit that the steam-tug ultimately succeeded in dragging the ferry-boat clear of the schooner, and that she returned to the schooner after the ferry-boat sunk, and that she rendered service in subduing the flames and saving the schooner from complete destruction, but they deny, in the most positive form, that the libellants are entitled to salvage, or to any compensation by the way of salvage on account of the services rendered, for the following reasons: (1.) Because the schooner would not have caught fire if those in charge of the steam-tug had exercised due and proper care in their attempts to tow the burning ferry-boat from her slip up the river. (2.) Because the schooner was run into and set on fire by the carelessness, negligence, and inattention of those who rendered the alleged salvage service, and not from any accident, nor from any fault or neglect of duty on the part of the schooner. Further discussion of the matters of fact involved in those propositions is unnecessary, as they have all been conclusively determined in favor of the owners of the schooner in what precedes, which leaves nothing for decision in the case before the court, except the question whether the claim for salvage compensation can be sustained in view of the facts set forth in the propositions submitted by the respondents. Salvage is well defined as the compensation allowed to persons by whose assistance a ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict capture, or other marine misadventures. [] Other jurists define it as the service which volunteer adventurers spontaneously render to the owners, in the recovery of property from loss or damage at sea under the responsibility of making restitution and with a lien for their reward. [†] Persons who render such service are called salvors, and a salvor is defined to be a person who, without any particular relation to the ship in distress, proffers useful service and gives it as a volunteer adventurer without any pre-existing contract that connected him with the duty of employing himself for the preservation of the vessel. Enough appears in those definitions to show that the elements necessary to constitute a valid salvage claim are as follows: (1.) A marine peril to the property to be rescued. (2.) Voluntary service not owed to the property as matter of duty. (3.) Success in saving the property or some portion of it from the impending peril. Public policy encourages the hardy and industrious mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to dishonesty the law allows him, in case he is successful, a liberal compensation. Those liberal rules as to remuneration were adopted and are administered not only as an inducement to the daring to embark in such enterprises, but to withdraw from the salvors as far as possible every motive to depredate upon the property of the unfortunate owner. [] Such compensation, however, is not claimable in every case in which work and labor are done for the preservation of a ship and cargo. Suitors, in order to support such a claim, must be prepared to show that the property was exposed to peril and that the undertaking involved risk and enterprise, and that they were successful in securing the property and saving it to the owner, and that the service was voluntary and that it was not rendered in pursuance of any duty owed to the owner or to the property. Conditions of the kind are inherent in the very nature of the undertaking, and salvors, in consideration of the large reward allowed to them for their services, are required to be vigilant in preventing, detecting, and exposing every act of plunder upon the property saved, for the reason that the right to salvage compensation presupposes good faith, meritorious service, complete restoration, and incorruptible vigilance, so far as the property is within the reach or under the control of the salvors. Seamen belonging to the ship in peril cannot, as a general rule, claim a salvage compensation, not only because it is their duty to save both ship and cargo, if it is in their power, but because it would be unwise to tempt them to let the ship and cargo get into a position of danger in order that by extreme exertion they might claim salvage compensation. [†] Pilots, also, are excluded from such compensation for any exertions or services rendered while acting within the line of their duty, but like other persons they may become salvors in legal contemplation, if they perform extraordinary services outside of the line of their duty. [] Neither can passengers claim salvage unless they perform extraordinary service. [†] Persons otherwise entitled as salvors cannot be defeated in making their claim because the vessel was fraudulently imperilled by the master, unless it appears that they were parties to the fraud, or were cognizant of it while it was going on and did not interfere to prevent it as far as they could, or unless they endeavored to conceal the master's misconduct and screen him from detection. [‡] Where two vessels come in collision, if one is not disabled she is bound to render all possible assistance to the other, even though the other may be wholly in fault. [§] Authorities to support that proposition are quite numerous, and it is very clear that if the vessel in fault renders assistance to the one not in fault, the former cannot make any claim for salvage either from the other vessel or the cargo on board, as it is her duty to render every assistance in her power. [†] Services of the kind, when required by duty, do not constitute a claim for salvage, and it is expressly decided that salvors are not entitled to reward for saving property which they had by their own wrongful acts contributed to place in jeopardy, and the court here fully concurs in that proposition. [¶] Text writers, also, of high repute adopt the rule that persons who have contributed to place property in danger cannot be allowed to claim reward for rescuing it from the consequences of their own wrongful acts, which is a principle applicable in all respects to the case before the court. [] Cases may be found in which it is held that when one ship has rendered assistance to another ship belonging to the same owner that the ship rendering such assistance cannot claim a salvage reward, but the better opinion is that the rule laid down in those cases admits of exceptions, as where the services rendered were of an extraordinary character and were entirely outside of the contract duties of those by whom they were rendered. [†] Exceptions also exist to the rule that a steam-tug engaged in towing may not, in case she performs extraordinary services outside of her contract, be entitled to salvage compensation, if it appears that the services were meritorious and saved the property from an impending peril which supervened subsequent to the original undertaking. [‡] None of these exceptional cases, however, can benefit the libellants in this case, for the reason that the insuperable objection to their right of recovery is that the peril to which the schooner was exposed was caused by those who rendered the alleged salvage service, and to the rule that such libellants are not entitled to recover there are no exceptions when it appears that the suit is prosecuted in behalf of the wrongdoers. DECREE AFFIRMED IN BOTH CASES.",in the claim for salvage.
+3,107160,1,1,"(a). No. 11, Graham v. John Deere Co., an infringement suit by petitioners, presents a conflict between two Circuits over the validity of a single patent on a Clamp for vibrating Shank Plows. The invention, a combination of old mechanical elements, involves a device designed to absorb shock from plow shanks as they plow through rocky soil and thus to prevent damage to the plow. In 1955, the Fifth Circuit had held the patent valid under its rule that when a combination produces an old result in a cheaper and otherwise more advantageous way, it is patentable. Jeoffroy Mfg., Inc. v. Graham, 219 F. 2d 511, cert. denied, 350 U. S. 826. In 1964, the Eighth Circuit held, in the case at bar, that there was no new result in the patented combination and that the patent was, therefore, not valid. 333 F. 2d 529, reversing 216 F. Supp. 272. We granted certiorari, 379 U. S. 956. Although we have determined that neither Circuit applied the correct test, we conclude that the patent is invalid under § 103 and, therefore, we affirm the judgment of the Eighth Circuit. (b). No. 37, Calmar, Inc. v. Cook Chemical Co., and No. 43, Colgate-Palmolive Co. v. Cook Chemical Co., both from the Eighth Circuit, were separate declaratory judgment actions, but were filed contemporaneously. Petitioner in Calmar is the manufacturer of a finger-operated sprayer with a hold-down cap of the type commonly seen on grocers' shelves inserted in bottles of insecticides and other liquids prior to shipment. Petitioner in Colgate-Palmolive is a purchaser of the sprayers and uses them in the distribution of its products. Each action sought a declaration of invalidity and noninfringement of a patent on similar sprayers issued to Cook Chemical as assignee of Baxter I. Scoggin, Jr., the inventor. By cross-action, Cook Chemical claimed infringement. The actions were consolidated for trial and the patent was sustained by the District Court. 220 F. Supp. 414. The Court of Appeals affirmed, 336 F. 2d 110, and we granted certiorari, 380 U. S. 949. We reverse. Manifestly, the validity of each of these patents turns on the facts. The basic problems, however, are the same in each case and require initially a discussion of the constitutional and statutory provisions covering the patentability of the inventions.",The Cases.
+4,107160,1,4,"The Act sets out the conditions of patentability in three sections. An analysis of the structure of these three sections indicates that patentability is dependent upon three explicit conditions: novelty and utility as articulated and defined in § 101 and § 102, and nonobviousness, the new statutory formulation, as set out in § 103. The first two sections, which trace closely the 1874 codification, express the new and useful tests which have always existed in the statutory scheme and, for our purposes here, need no clarification. [5] The pivotal section around which the present controversy centers is § 103. It provides: § 103. Conditions for patentability; non-obvious subject matter A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. The section is cast in relatively unambiguous terms. Patentability is to depend, in addition to novelty and utility, upon the non-obvious nature of the subject matter sought to be patented to a person having ordinary skill in the pertinent art. The first sentence of this section is strongly reminiscent of the language in Hotchkiss. Both formulations place emphasis on the pertinent art existing at the time the invention was made and both are implicitly tied to advances in that art. The major distinction is that Congress has emphasized nonobviousness as the operative test of the section, rather than the less definite invention language of Hotchkiss that Congress thought had led to a large variety of expressions in decisions and writings. In the title itself the Congress used the phrase Conditions for patentability; non-obvious subject matter  (italics added), thus focusing upon nonobviousness rather than invention. [6] The Senate and House Reports, S. Rep. No. 1979, 82d Cong., 2d Sess. (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess. (1952), reflect this emphasis in these terms: Section 103, for the first time in our statute, provides a condition which exists in the law and has existed for more than 100 years, but only by reason of decisions of the courts. An invention which has been made, and which is new in the sense that the same thing has not been made before, may still not be patentable if the difference between the new thing and what was known before is not considered sufficiently great to warrant a patent. That has been expressed in a large variety of ways in decisions of the courts and in writings. Section 103 states this requirement in the title. It refers to the difference between the subject matter sought to be patented and the prior art, meaning what was known before as described in section 102. If this difference is such that the subject matter as a whole would have been obvious at the time to a person skilled in the art, then the subject matter cannot be patented. That provision paraphrases language which has often been used in decisions of the courts, and the section is added to the statute for uniformity and definiteness. This section should have a stabilizing effect and minimize great departures which have appeared in some cases. H. R. Rep., supra, at 7; S. Rep., supra, at 6. It is undisputed that this section was, for the first time, a statutory expression of an additional requirement for patentability, originally expressed in Hotchkiss. It also seems apparent that Congress intended by the last sentence of § 103 to abolish the test it believed this Court announced in the controversial phrase flash of creative genius, used in Cuno Corp. v. Automatic Devices Corp., 314 U. S. 84 (1941). [7] It is contended, however, by some of the parties and by several of the amici that the first sentence of § 103 was intended to sweep away judicial precedents and to lower the level of patentability. Others contend that the Congress intended to codify the essential purpose reflected in existing judicial precedents—the rejection of insignificant variations and innovations of a commonplace sort—and also to focus inquiries under § 103 upon nonobviousness, rather than upon invention, as a means of achieving more stability and predictability in determining patentability and validity. The Reviser's Note to this section, [8] with apparent reference to Hotchkiss, recognizes that judicial requirements as to lack of patentable novelty [have] been followed since at least as early as 1850. The note indicates that the section was inserted because it may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out. To this same effect are the reports of both Houses, supra, which state that the first sentence of the section paraphrases language which has often been used in decisions of the courts, and the section is added to the statute for uniformity and definiteness. We believe that this legislative history, as well as other sources, [9] shows that the revision was not intended by Congress to change the general level of patentable invention. We conclude that the section was intended merely as a codification of judicial precedents embracing the Hotchkiss condition, with congressional directions that inquiries into the obviousness of the subject matter sought to be patented are a prerequisite to patentability.",The 1952 Patent Act.
+5,103736,1,1,"There is confided to the Court only the power to resolve constitutional questions raised by these divorce procedures, and not moral, religious, or social questions as to divorce itself. I do not know with any certainty whether in the long run strict or easy divorce is best for society or whether either has much effect on moral conduct. It is enough for judicial purposes that to each state is reserved constitutional power to determine its own divorce policy. It follows that a federal court should uphold impartially the right of Nevada to adopt easy divorce laws and the right of North Carolina to enact severe ones. No difficulties arise so long as each state applies its laws to its own permanent inhabitants. The complications begin when one state opens its courts and extends the privileges of its laws to persons who never were domiciled there and attempts to visit disadvantages therefrom upon persons who have never lived there, have never submitted to the jurisdiction of its courts, and have never been lawfully summoned by personal service of process. This strikes at the orderly functioning of our federal constitutional system, and raises questions for us. The prevailing opinion rests upon a line of cases of which Christmas v. Russell, 5 Wall. 290, is typical. There it was said that If a judgment is conclusive in the state where it was pronounced, it is equally conclusive everywhere. Id. at 302. This rule was uttered long ago in very different circumstances. The judgment there in question was on a promissory note, and the Court also said that: Nothing can be plainer than the proposition is, that the judgment . . . was a valid judgment in the State where it was rendered. Jurisdiction of the case was undeniable, and the defendant being found in that jurisdiction, was duly served with process, and appeared and made full defense. Id. at 301. But the same defendant tried to relitigate his lost cause when it was sought to give that judgment effect in his home state. This Court properly held that it was not competent for the courts of any other state to reopen the merits of the cause. This very wise rule against collateral impeachment of an ordinary judgment based upon personal jurisdiction is now made to support the theory that we must enforce these very different Nevada judgments without more than formal inquiry into the jurisdiction of the court that rendered them. The effect of the Court's decision today — that we must give extraterritorial effect to any judgment that a state honors for its own purposes — is to deprive this Court of control over the operation of the full faith and credit and the due process clauses of the Federal Constitution in cases of contested jurisdiction and to vest it in the first state to pass on the facts necessary to jurisdiction. It is for this Court, I think, not for state courts, to implement these great but general clauses by defining those judgments which are to be forced upon other states. Conflict between policies, laws, and judgments of constituent states of our federal system is an old, persistent, and increasingly complex problem. The right of each state to experiment with rules of its own choice for governing matrimonial and social life is greatly impaired if its own authority is overlapped and its own policy is overridden by judgments of other states forced on it by the power of this Federal Court. If we are to extend protection to the orderly exercise of the right of each state to make its own policy, we must find some way of confining each state's authority to matters and persons that are by some standard its own. The framers of the Constitution did not lay down rules to guide us in selecting which of two conflicting state judgments or public acts would receive federal aid in its extraterritorial enforcement. Nor was it necessary. There was, and is, an adequate body of law, if we do not reject it, by which to test jurisdiction or power to render the judgments in question so far as faith and credit by federal command is concerned. By the application of well established rules these judgments fail to merit enforcement for two reasons.",our function in the matter.
+6,103736,1,2,"Thirty-seven years ago this Court decided that a state court, even of the plaintiff's domicile, could not render a judgment of divorce that would be entitled to federal enforcement in other states against a nonresident who did not appear, and was not personally served with process. Haddock v. Haddock, 201 U.S. 562 (1905 Term). The opinion was much criticized, particularly in academic circles. [1] Until today, however, it has been regarded as law, to be accepted and applied, for good or ill, depending on one's view of the matter. The theoretical reasons for the change are not convincing. The opinion concedes that Nevada's judgment could not be forced upon North Carolina in absence of personal service if a divorce proceeding were an action in personam. In other words, settled family relationships may be destroyed by a procedure that we would not recognize if the suit were one to collect a grocery bill. [2] We have been told that this is because divorce is a proceeding in rem. The marriage relation is to be reified and treated as a res. Then it seems that this res follows a fugitive from matrimony into a state of easy divorce, although the other party to it remains at home where the res was contracted and where years of cohabitation would seem to give it local situs. Would it be less logical to hold that the continued presence of one party to a marriage gives North Carolina power to protect the res, the marriage relation, than to hold that the transitory presence of one gives Nevada power to destroy it? Counsel at the bar met this dilemma by suggesting that the res exists in duplicate — one for each party to the marriage. But this seems fatal to the decree, for if that is true the dissolution of the res in transit would hardly operate to dissolve the res that stayed in North Carolina. Of course this discussion is only to reveal the artificial and fictional character of the whole doctrine of a res as applied to a divorce action. I doubt that it promotes clarity of thinking to deal with marriage in terms of a res, like a piece of land or a chattel. It might be more helpful to think of marriage as just marriage — a relationship out of which spring duties to both spouse and society and from which are derived rights, — such as the right to society and services and to conjugal love and affection — rights which generally prove to be either priceless or worthless, but which none the less the law sometimes attempts to evaluate in terms of money when one is deprived of them by the negligence or design of a third party. It does not seem consistent with our legal system that one who has these continuing rights should be deprived of them without a hearing. Neither does it seem that he or she should be summoned by mail, publication, or otherwise to a remote jurisdiction chosen by the other party and there be obliged to submit marital rights to adjudication under a state policy at odds with that of the state under which the marriage was contracted and the matrimonial domicile was established. Marriage is often dealt with as a contract. Of course a personal judgment could not be rendered against an absent party on a cause of action arising out of an ordinary commercial contract, without personal service of process. I see no reason why the marriage contract, if such it be considered, should be discriminated against, nor why a party to a marriage contract should be more vulnerable to a foreign judgment without process than a party to any other contract. I agree that the marriage contract is different, but I should think the difference would be in its favor. The Court thinks the difference is the other way: we are told that divorce is not a mere in personam action since Haddock v. Haddock, supra , held that domicile is necessary to jurisdiction for divorce. But to hold that a state cannot have divorce jurisdiction unless it is the domicile is not to hold that it must have such jurisdiction if it is the domicile, as Haddock v. Haddock itself demonstrates. Further support for this view seems to be seen in Maynard v. Hill, 125 U.S. 190, and in the Court's subsequent approval of that case in Haddock v. Haddock, supra, at 569, 572, 574, 575, 579. All that Maynard v. Hill decided was that the Territory of Washington had jurisdiction to cut off any interest of an absent spouse in land within its borders. But protection of land in the jurisdiction and protection against bigamy prosecutions out of the jurisdiction are plainly different matters. [3] Although the Court concedes that its present decision would be insupportable if divorce were a mere in personam action, it relies for support on opinions that the state where one is domiciled has the power to enter valid criminal, tax, and simple money judgments against — not for — him. [4] Those opinions are wholly inapposite unless they mean that Nevada has jurisdiction to nullify contract rights of a person never in the state or to declare that he is not liable for the commission of crime, payment of taxes, or the breach of a contract, in another state; and I am sure that nobody has ever supposed they meant that. To hold that the Nevada judgments were not binding in North Carolina because they were rendered without jurisdiction over the North Carolina spouses, it is not necessary to hold that they were without any conceivable validity. It may be, and probably is, true that Nevada has sufficient interest in the lives of those who sojourn there to free them and their spouses to take new spouses without incurring criminal penalties under Nevada law. I know of nothing in our Constitution that requires Nevada to adhere to traditional concepts of bigamous unions or the legitimacy of the fruit thereof. And the control of a state over property within its borders is so complete that I suppose that Nevada could effectively deal with it in the name of divorce as completely as in any other. [5] But it is quite a different thing to say that Nevada can dissolve the marriages of North Carolinians and dictate the incidence of the bigamy statutes of North Carolina by which North Carolina has sought to protect her own interests as well as theirs. In this case there is no conceivable basis of jurisdiction in the Nevada court over the absent spouses, [6] and, a fortiori, over North Carolina herself. I cannot but think that in its preoccupation with the full faith and credit clause the Court has slighted the due process clause.",lack of due process of law.
+7,103736,1,3,"We should, I think, require that divorce judgments asking our enforcement under the full faith and credit clause, unlike judgments arising out of commercial transactions and the like, must also be supported by good-faith domicile of one of the parties within the judgment state. [7] Such is certainly a reasonable requirement. A state can have no legitimate concern with the matrimonial status of two persons, neither of whom lives within its territory. The Court would seem, indeed, to pay lip service to this principle. I understand the holding to be that it is domicile in Nevada that gave power to proceed without personal service of process. That being the course of reasoning, I do not see how we avoid the issue concerning the existence of the domicile which the facts on the face of this record put to us. Certainly we cannot, as the Court would, by-pass the matter by saying that we must treat the present case for the purpose of the limited issue before us precisely the same as if petitioners had resided in Nevada for a term of years and had long ago acquired a permanent abode there. I think we should treat it as if they had done just what they have done. The only suggestion of a domicile within Nevada was a stay of about six weeks at the Alamo Auto Court, an address hardly suggestive of permanence. Mrs. Hendrix testified in her case (the evidence in Williams' case is not before us) that her residence in Nevada was indefinite permanent in character. The Nevada court made no finding that the parties had a domicile there. It only found a residence — sometimes, but not necessarily, an equivalent. [8] It is this Court that accepts these facts as enough to establish domicile. While a state can no doubt set up its own standards of domicile as to its internal concerns, I do not think it can require us to accept and in the name of the Constitution impose them on other states. If Nevada may prescribe six weeks of indefinite-permanent abode in a motor court as constituting domicile, she may as readily prescribe six days. Indeed, if the Court's opinion is carried to its logical conclusion, a state could grant a constructive domicile for divorce purposes upon the filing of some sort of declaration of intention. Then it would follow that we would be required to accept it as sufficient and to force all states to recognize mail-order divorces as well as tourist divorces. Indeed, the difference is in the bother and expense — not in the principle of the thing. The concept of domicile as a controlling factor in choice of law to govern many relations of the individual was well known to the framers of the Constitution. It was hardly contemplated that a person should be subject at once to two conflicting state policies, such as those of Nevada and North Carolina. It was undoubtedly expected that the Court would in many cases of conflict use one's domicile as an appropriate guide in selecting the law to govern his controversies. Domicile means a relationship between a person and a locality. It is the place, and the one place, where he has his roots and his real, permanent home. The Fourteenth Amendment, in providing that one by residence in a state becomes a citizen thereof, probably used residence as synonymous with domicile. Thus domicile fixes the place where one belongs in our federal system. In some instances the existence of this relationship between the state and an individual may be a federal question, although this Court has been reluctant to accept that view. [9] If in testing this judgment to determine whether it qualifies for federal enforcement we should apply the doctrine of domicile to interpretation of the full faith and credit clause, Nevada would be held to a duty to respect the statutes of North Carolina and not to interfere with their application to those whose individual as well as matrimonial domicile is within that State unless and until that domicile has been terminated. And North Carolina would not be required to yield its policy as to persons resident there except upon a showing that Nevada had acquired a domiciliary right to redefine the matrimonial status. However, the trend of recent decision has been to break down the rigid concept of domicile as a test of the right of a state to deal with important relations of life. This trend has been particularly apparent in cases where the Court has authorized, if not indeed encouraged, the several states to set up their own standards of domicile and to make conflicting findings of domicile for the purpose of taxing the right of succession. Worcester County Trust Co. v. Riley, 302 U.S. 292. The Court has completely repudiated domicile as the measure of a state's right to tax intangible property. State Tax Commission v. Aldrich, 316 U.S. 174, 185. The present decision extends the trend to the field of matrimonial legislation. This direction is contrary to what I believe to be the purpose of our Constitution to prevent overlapping and conflict of authority between the states. In the application of the full faith and credit clause to the variety of circumstances that arise when families break up and separate domiciles are established, there are, I grant, many areas of great difficulty. But I cannot believe that we are justified in making a demoralizing decision in order to avoid making difficult ones.",lack of domicile.
+8,103736,1,4,"The Court says that its judgment is part of the price of our federal system. It is a price that we did not have to pay yesterday and that we will have to pay tomorrow, only because this Court has willed it to be so today. This Court may follow precedents, irrespective of their merits, as a matter of obedience to the rule of stare decisis. Consistency and stability may be so served. They are ends desirable in themselves, for only thereby can the law be predictable to those who must shape their conduct by it and to lower courts which must apply it. But we can break with established law, overrule precedents, and start a new cluster of leading cases to define what we mean, only as a matter of deliberate policy. We therefore search a judicial pronouncement that ushers in a new order of matrimonial confusion and irresponsibility for some hint of the countervailing public good that is believed to be served by the change. Little justification is offered. And it is difficult to believe that what is offered is intended seriously. The Court advances two intensely practical considerations in support of its present decision. One is the complicated and serious condition if one is lawfully divorced and remarried in Nevada and still married to the first spouse in North Carolina. This of course begs the question, for the divorces were completely ineffectual for any purpose relevant to this case. I agree that it is serious if a Nevada court without jurisdiction for divorce purports to say that the sojourn of two spouses gives four spouses rights to acquire four more, but I think it far more serious to force North Carolina to acquiesce in any such proposition. The other consideration advanced is that if the Court doesn't enforce divorces such as these it will, as it puts it, bastardize children of the divorcees. When thirty-seven years ago Mr. Justice Holmes perpetrated this quip, it had point, for the Court was then holding divorces invalid which many, due to the confused state of the law, had thought to be good. It is difficult to find that it has point now that the shoe is on the other foot. In any event, I had supposed that our judicial responsibility is for the regularity of the law, not for the regularity of pedigrees.",practical considerations.
+9,106534,1,2,"At the threshold in Mendoza-Martinez' case is the question whether the proceeding should have been heard by a three-judge District Court convened pursuant to 28 U. S. C. § 2282, which requires such a tribunal as a prerequisite to the granting of any interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States . . . . If § 2282 governs this litigation, we are once again faced with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however, satisfied that the case was properly heard by a single district judge, as both parties urge. In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge that defendants herein are enjoined and restrained henceforth from enforcing all deportation orders against him. However, it is abundantly clear from the amended trial stipulation which was entered into by the parties and approved by the judge to govern the course of the trial, that the issues were framed so as not to contemplate any injunctive relief. The first question was articulated only in terms of whether the Government was herein estopped by reason of the indictment and conviction of plaintiff for [draft evasion] . . . from denying that the plaintiff is now a national and citizen of the United States. The second question asked only for a declaration as to whether § 401 (j) was unconstitutional, either on its face or as applied to the plaintiff herein. The conclusion that no request for injunctive relief nor even any contemplation of it attended the case as it went to trial is borne out by the total lack of reference to injunctive relief in the District Court's memorandum opinion, findings of fact and conclusions of law, and judgment. See 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment is unconstitutional, both on its face and as applied to the plaintiff herein, and [t]hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States. Thus, despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401 (j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court. Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2282, [6] requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 was a means of protecting the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. . . . The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress. . . . Phillips v. United States, 312 U. S. 246, 250-251. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong. Rec. 479-481, 2142-2143 (1937). The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought and the order entered affected an Act of Congress in a totally noncoercive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. Thus there was no reason whatever in this case to invoke the special and extraordinary procedure of a three-judge court. Compare Schneider v. Rusk, post, p. 224, decided this day.",the three-judge court issue.
+10,106534,1,3,"Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this Court earlier that year, charged that the government of the United States has admitted the fact of his United States citizenship by virtue of the indictment and judgment of conviction [in 1947 for draft evasion] . . . and is therefore collaterally estopped now to deny such citizenship . . . . The District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for upholding the judgment entered below That the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States. 192 F. Supp., at 3. We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as follows: The Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained in Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country. [7] For the period from September 27, 1944, when § 401 (j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the Government must be taken to have admitted that he did not lose his citizenship by remaining outside the country after September 27, 1944, because it charged him with draft evasion for that period as well as for the period preceding that date. It is true that as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered, Cromwell v. County of Sac, 94 U. S. 351, 353, the findings in a prior criminal proceeding may estop a party in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 568-569, and that the United States may be estopped to deny even an erroneous prior determination of status, United States v. Moser, 266 U. S. 236. However, Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was not litigated and thereby without more preclude his assertion of estoppel, [8] the basic flaw in his argument is in the assertion that he was charged with a continuing violation of the draft laws while he remained in Mexico, particularly after September 27, 1944, the date on which § 401 (j) became effective. He was in fact charged with a violation on or about November 15, 1942, because he did knowingly evade service . . . in that he did knowingly depart from the United States and go to a foreign country, namely: Mexico, for the purpose of evading service . . . . This constituted the alleged violation. The additional language that he did there remain until on or about November 1, 1946, was merely surplusage in relation to the substantive offense, although it might, for example, serve a purpose in relation to problems connected with the tolling of the statute of limitations. No language appears charging the elements of violation—knowledge and purpose to evade—in connection with it. The only crime charged is what happened on or about November 15, 1942, and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date, [9] in nowise estopped the Government with reference to his status after September 27, 1944. The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of: Having on or about November 15th 1942, knowingly departed from the United States to Mexico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946. Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27, 1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in the present proceedings.",the collateral-estoppel issue.
+11,106534,2,1,"Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is the gravest and most delicate duty that this Court is called upon to perform. Blodgett v. Holden, 275 U. S. 142, 148 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution. We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. [10] The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. [11] While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, [12] for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government. [13] These principles, stemming on the one hand from the precious nature of the constitutionally guaranteed rights of citizenship, and on the other from the powers of Congress and the related obligations of individual citizens, are urged upon us by the parties here. The Government argues that §§ 401 (j) and 349 (a) (10) are valid as an exercise of Congress' power over foreign affairs, of its was power, and of the inherent sovereignty of the Government. Appellees urge the provisions' invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment. We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship —particularly American citizenship, which is one of the most valuable rights in the world today, Report of the President's Commission on Immigration and Naturalization (1953), 235—has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person—a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever. Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty . . . no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals. 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), § 291, at 640. [14] The calamity is [n]to the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever . . . . Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him, [15] or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship. [16]",Basic Principles.
+12,106534,2,2,"The basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. Brownell, 356 U. S. 44, and Trop v. Dulles, 356 U. S. 86. In Perez, § 401 (e), which imposes loss of nationality for [v]oting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory, was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate foreign affairs. The Court reasoned that since withdrawal of citizenship of Americans who vote in foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Since the Court sustained the application of § 401 (e) to denationalize Perez, it did not have to deal with § 401 (j), upon which the Government had also relied, and it expressly declined to rule on the constitutionality of that section, 356 U. S., at 62. There were three opinions written in dissent. The principal one, that of THE CHIEF JUSTICE, recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country, id., at 68, but concluded that [t]he mere act of voting in a foreign election, however, without regard to the circumstances attending the participation, is not sufficient to show a voluntary abandonment of citizenship, id., at 78. In Trop, § 401 (g), forfeiting the citizenship of any American who is guilty of [d]eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged. . . , was declared unconstitutional. There was no opinion of the Court. THE CHIEF JUSTICE wrote an opinion for four members of the Court, concluding that § 401 (g) was invalid for the same reason that he had urged as to § 401 (e) in his dissent in Perez, and that it was also invalid as a cruel and unusual punishment imposed in violation of the Eighth Amendment. JUSTICE BRENNAN conceded that it is paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war, 356 U. S., at 105. Notwithstanding, he concurred because the requisite rational relation between this statute and the war power does not appear . . . , id., at 114. Justice Frankfurter, joined by three other Justices, dissented on the ground that § 401 (g) did not impose punishment at all, let alone cruel and unusual punishment, and was within the war powers of Congress.",The Perez and Trop Cases.
+13,106534,3,1,"The subsections here in question have their origin in part of a Civil War Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes. Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters and draft evaders, was in terms punitive, providing that in addition to the other lawful penalties of the crime of desertion, persons guilty thereof shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens . . . and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section. [31] The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not accidental. The section as originally proposed inflicted loss of rights of citizenship only on deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the country to avoid the draft, stating, I do not see why the same principle should not extend to those who leave the country to avoid the draft. Cong. Globe, 38th Cong., 2d Sess. 642 (1865). This same principle was punitive, because Senator Morrill was also worried that insofar as the section as originally proposed provides for a penalty to be imposed on persons who had theretofore deserted, there was question whether it is not an ex post facto law, whether it is not fixing a penalty for an act already done. Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress. Ibid. This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to convince his colleagues of the bill's ex post facto nature and, even apart from that, of the excessiveness of the punishment, particularly as applied to draft evaders: It seems to me to be very clear that this section proposes to punish desertions which have already taken place, with a penalty which the law does not already prescribe. In other words it is an ex post facto criminal law which I think we cannot pass. . . . One of the penalties known very well to the criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust or profit. It seems to me this objection to the section is very clear, but I desire to suggest further that this section punishes desertions that may hereafter take place in the same manner, and it is known to Senators that one desertion recently created is not reporting when notified of the draft. . . . I submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his pride and honor, from the mere fact that he has been unable to report upon the day specified after being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It extends now from the denial of pay up to death; that entire compass is given for the punishment of this offense. Why add this other? It cannot do any good. Id., at 643. In the House, the motion of New York's Representative Townsend to strike the section as a despotic measure which would have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges, was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that Here is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters. Id., at 1155. After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the enacted version of the bill, extending the draft-evasion portion to apply to persons leaving the district in which they are enrolled in addition to those leaving the country, Representative J. C. Allen of Illinois raised the ex post facto objection to the section as a whole. Id., at 1155-1156. Representative Schenck answered him much as Senator Johnson had replied in the Senate: The gentleman from Illinois [Mr. J. C. ALLEN] misapprehends this section from not having looked carefully, as I think, into its language. He thinks it retroactive. It is not so. It does not provide for punishing those who have deserted in their character of deserters acquired by having gone before the passage of the law, but of those only, who, being deserters, shall not return and report themselves for duty within sixty days. If the gentleman looks at the language of the section, he will find that we have carefully avoided making it retroactive. We give those who have deserted their country and their flag sixty days for repentance and return. Mr. J. C. ALLEN. Will not the infliction of this penalty on those who have failed to return to the Army be an additional penalty that did not exist at the time they deserted? Mr. SCHENCK. Yes, sir. Mr. J. C. ALLEN. Does not that make the law retroactive? Mr. SCHENCK. They are deserters now. We take them up in their present status and character as deserters, and punish them for continuing in that character. The gentleman refers to lawyers here. I believe he is a good lawyer himself. Does he not know that if a man steals a horse and runs away with it to the next county it is a continual act of larceny until he delivers up the horse? Id., at 1156. The significance of these debates is, as these excerpts plainly show, that while there was a difference in both Houses as to whether the statute would be an ex post facto law, there was agreement among all the speakers on both sides of that issue, as well as on both sides of the merits of the bill generally, that deprivation of rights of citizenship for leaving the country to evade the draft was a penalty and punishment for a crime and an offense and a violation of a criminal law. A number of state court judicial decisions rendered shortly after the Civil War lend impressive support to the conclusion that the predecessor of §§ 401 (j) and 349 (a) (10), § 21 of the 1865 statute, was a criminal statute imposing an additional punishment for desertion and draft evasion. The first and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which, as in most of the cases which followed, [32] the plaintiff had brought an action against the election judge of his home township, alleging that the defendant had refused to receive his ballot on the ground that plaintiff was a deserter and thereby disenfranchised under § 21, and that such refusal was wrongful because § 21 was unconstitutional. The asserted grounds of invalidity were that § 21 was an ex post facto law, that it was an attempt by Congress to regulate suffrage in the States and therefore outside Congress' sphere of power, and that it proposed to inflict pains and penalties without a trial and conviction, and was therefore prohibited by the Bill of Rights. In an opinion by Justice Strong, later a member of this Court, the Pennsylvania Supreme Court first characterized the statute in a way which compelled discussion of the asserted grounds of unconstitutionality: The Act of Congress is highly penal. It imposes forfeiture of citizenship and deprivation of the rights of citizenship as penalties for the commission of a crime. Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties. 53 Pa., at 114-115. It then answered the ex post facto argument as it had been answered on the floor of Congress, that the offense could as well be in the continued refusal to render service as in the original desertion. The second contention was met with the statement that The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime. Id., at 116. The third objection, the court continued, would be a very grave one if the act does in reality impose pains and penalties before and without a conviction by due process of law. Id., at 116-117. The court then summarized the protections guaranteed by the Fifth and Sixth Amendments, and concluded that it was not consistent with these rights to empower a judge of elections or a board of election officers constituted under state laws . . . to adjudge the guilt or innocence of an alleged violator of the laws of the United States. Id., at 117. However, the court decided that since the penalty contemplated by § 21 is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine, it must have been intended that it should be incurred in the same way, and imposed by the same tribunal that was authorized to impose the other penalties for the offence. Id., at 119. [T]he forfeiture which it prescribes, like all other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved. For the conviction and sentence of such a court there can be no substitute. Id., at 120. (Emphasis in original.) Accordingly, since the plaintiff had not been so convicted, the court held that he was not disenfranchised. Subsequent state court decisions in the post-Civil War period followed Huber v. Reily, both in result and reasoning. State v. Symonds, 57 Me. 148 (1869); Severance v. Healey, 50 N. H. 448 (1870); Gotcheus v. Matheson, 58 Barb. (N. Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868). Ultimately and significantly, in Kurtz v. Moffitt, 115 U. S. 487, a case dealing with the question whether a city police officer had the power to arrest a military deserter, this Court recognized both the nature of the sanction imposed by § 21 and the attendant necessity of procedural safeguards, approvingly citing the above decisions: The provisions of §§ 1996 and 1998, which re-enact the act of March 3, 1865, ch. 79, § 21, 13 Stat. 490, and subject every person deserting the military service of the United States to additional penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr. Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn. St. 112, and has been uniformly held by the civil courts as well as by the military authorities. State v. Symonds, 57 Maine, 148; Severance v. Healey, 50 N. H. 448; Goetcheus v. Matthewson, 61 N. Y. 420; Winthrop's Digest of Judge Advocate General's Opinions, 225. 115 U. S., at 501-502. Section 21 remained on the books unchanged, except for being distributed in the Revised Statutes as §§ 1996 and 1998, until 1912, when Congress re-enacted it with an amendment making it inapplicable to peacetime violations and giving the President power to mitigate or remit punishment previously imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The legislative history of that amendment is also instructive for our present inquiry. The discussion in both Houses had reference only to the penalties as operative on deserters, no doubt because there was no peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be any less applicable to the latter type of misconduct. The House Committee Report, H. R. Rep. No. 335, 62d Cong., 2d Sess. (1912), which was quoted in its entirety in the Senate Committee Report, S. Rep. No. 910, 62d Cong., 2d Sess. 3-6 (1912), stated that In addition to the service penalty imposed by the court-martial, the law, as it now stands, imposes the further and most drastic punishment of loss of rights of citizenship . . . . There are in the United States to-day thousands of men who are literally men without a country and their numbers will be constantly added to until the drastic civil-war measure which adds this heavy penalty to an already severe punishment imposed by military law, is repealed. H. R. Rep. No. 335, supra, at 2. In reporting the bill out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated that the bill now under consideration is intended to remove one of the harshest penalties that can be imposed upon a man for an offense, to wit, the loss of rights of citizenship. . . . [S]uch a drastic penalty was entirely too severe to be imposed upon an American citizen in time of peace. He detailed the penalties meted out by court-martial for desertion, and then referred to the additional penalty of loss of citizenship, which, he concluded, is a barbarous punishment. 48 Cong. Rec. 2903 (1912). Senator Bristow of Kansas, a member of his chamber's Committee on Military Affairs, also referred in discussing the bill to the forfeiture of rights of citizenship as a penalty, and said that there is no reason why a peacetime offender should be punished so severely. 48 Cong. Rec. 9542 (1912). A somewhat similar amendment had been passed by both Houses of Congress in 1908 but vetoed by the President. [33] The House Committee Report on that occasion, H. R. Rep. No. 1340, 60th Cong., 1st Sess. (1908), consisted mainly of a letter from the Secretary of the Navy to the Congress, and of his annual report. In both documents he referred to loss of citizenship as a punishment, and as one of the penalties for desertion. Representative Roberts spoke in 1908, as he was to do once more in 1912, of the enormity of the punishment and the horrible punishment, and said, Conviction itself under the existing law forfeits citizenship. That is the monstrosity of the law. 43 Cong. Rec. 111 (1908). The entire discussion, id., at 110-114, was based on the premise that loss of citizenship is a punishment for desertion, the point at issue, as in 1912, being whether it was too severe a punishment for peacetime imposition. At one point Representative Roberts said, Loss of citizenship is a punishment, to which Representative Hull of Iowa replied, Certainly. Id., at 114. Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the portion of the 1865 statute which dealt with flight from the jurisdiction to avoid the draft. However, in connection with the provision governing loss of citizenship for desertion, which was enacted as § 401 (g) and declared unconstitutional in Trop v. Dulles, supra , the President's committee of advisers reported that the provisions of the 1865 Act had been distinctly penal in character, and concluded that They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial. [34] Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68 (Comm. Print 1939). Section 401 (g) was therefore worded so that loss of nationality could only occur upon conviction for desertion by court-martial. When, however, § 401 (j) was enacted in 1944, no such procedural safeguards were built in. See Trop v. Dulles, supra, at 93-94. Thus, whereas for JUSTICE BRENNAN concurring in Trop the conclusion that expatriation under § 401 (g) was punishment was but the beginning of critical inquiry, 356 U. S., at 110, a similar conclusion with reference to §§ 401 (j) and 349 (a) (10) is sufficient to sustain the holding that they are unconstitutional.",The Predecessor Statute and Judicial Construction.
+14,106534,3,2,"The immediate legislative history of § 401 (j) confirms the conclusion, based upon study of the earlier legislative and judicial history, [35] that it is punitive in nature. The language of the section was, to begin with, quite obviously patterned on that of its predecessor, an understandable fact since the draft of the bill was submitted to the Congress by Attorney General Biddle along with a letter to Chairman Russell of the Senate Immigration Committee, in which the Attorney General referred for precedent to the 1912 reenactment of the 1865 statute. This letter, which was the impetus for the enactment of the bill, was quoted in full text in support of it in both the House and Senate Committee Reports, H. R. Rep. No. 1229, 78th Cong., 2d Sess. 2-3 (1944); S. Rep. No. 1075, 78th Cong., 2d Sess. 2 (1944), and is set out in the margin. [36] The Senate Report stated that it fully explains the purpose of the bill. S. Rep. No. 1075, supra, at 1. The letter was couched entirely in terms of an argument that citizens who had left the country in order to escape military service should be dealt with, and that loss of citizenship was a proper way to deal with them. There was no reference to the societal good that would be wrought by the legislation, nor to any improvement in soldier morale or in the conduct of war generally that would be gained by the passage of the statute. The House Committee Report and the sponsors of the bill endorsed it on the same basis. The report referred for support to the fact that the FBI files showed over 800 draft delinquents in the EI Paso area alone who had crossed to Mexico to evade the draft. H. R. Rep. No. 1229, supra, at 2. The obvious inference to be drawn from the report, the example it contained, and the lack of mention of any broader purpose is that Congress was concerned solely with inflicting effective retribution upon this class of draft evaders and, no doubt, on others similarly situated. Thus, on the floor of the House, Representative Dickstein of New York, the Chairman of the House Committee on Immigration and Naturalization, explained the bill solely as a means of dealing with draft dodgers who left this country knowing that there was a possibility that they might be drafted in this war and that they might have to serve in the armed forces . . . . He implied that the bill was necessary to frustrate their idea of evading military service and of returning after the war is over, and taking their old places in our society. 90 Cong. Rec. 3261 (1944). Senator Russell, who was manager of the bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms: Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure.. . . Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. This bill would merely impose a similar penalty on those who are not subject to the jurisdiction of our courts, the penalty being the same as would result in the case of those who are subject to the jurisdiction of our courts. 90 Cong. Rec. 7629 (1944). [37] The Senate and House debates, together with Attorney General Biddle's letter, brought to light no alternative purpose to differentiate the new statute from its predecessor. Indeed, as indicated, the Attorney General's letter specifically relied on the predecessor statute as precedent for this enactment, and both the letter and the debates, consistent with the character of the predecessor statute, referred to reasons for the enactment of the bill which were fundamentally retributive in nature. When all of these considerations are weighed, as they must be, in the context of the incontestibly punitive nature of the predecessor statute, the conclusion that § 401 (j) was itself dominantly punitive becomes inescapable. The legislative history of § 349 (a) (10) of the Immigration and Nationality Act of 1952, which re-enacted § 401 (j), adds nothing to disturb that result. [38] Our conclusion from the legislative and judicial history is, therefore, that Congress in these sections decreed an additional punishment for the crime of draft avoidance in the special category of cases wherein the evader leaves the country. It cannot do this without providing the safeguards which must attend a criminal prosecution. [39]",The Present Statutes.
+15,109964,1,1,"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. The history of the Seventh Amendment has been amply documented by this Court and by legal scholars, [2] and it would serve no useful purpose to attempt here to repeat all that has been written on the subject. Nonetheless, the decision of this case turns on the scope and effect of the Seventh Amendment, which, perhaps more than with any other provision of the Constitution, are determined by reference to the historical setting in which the Amendment was adopted. See Colgrove v. Battin, 413 U. S. 149, 152 (1973). It therefore is appropriate to pause to review, albeit briefly, the circumstances preceding and attending the adoption of the Seventh Amendment as a guide in ascertaining its application to the case at hand.
+It is perhaps easy to forget, now more than 200 years removed from the events, that the right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England. See Sources and Documents Illustrating the American Revolution 1764-1788 and the Formation of the Federal Constitution 94 (S. Morison 2d ed. 1929); R. Pound, The Development of Constitutional Guarantees of Liberty 69-72 (1957); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 208-211 (1960). The extensive use of vice-admiralty courts by colonial administrators to eliminate the colonists' right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence. [3] And after war had broken out, all of the 13 newly formed States restored the institution of civil jury trial to its prior prominence; 10 expressly guaranteed the right in their state constitutions and the 3 others recognized it by statute or by common practice. [4] Indeed, [t]he right to trial by jury was probably the only one universally secured by the first American state constitutions . . . . L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960). [5] One might justly wonder then why no mention of the right of jury trial in civil cases should have found its way into the Constitution that emerged from the Philadelphia Convention in 1787. Article III, § 2, cl. 3, merely provides that The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. The omission of a clause protective of the civil jury right was not for lack of trying, however. Messrs. Pinckney and Gerry proposed to provide a clause securing the right of jury trial in civil cases, but their efforts failed. [6] Several reasons have been advanced for this failure. The Federalists argued that the practice of civil juries among the several States varied so much that it was too difficult to draft constitutional language to accommodate the different state practices. See Colgrove v. Battin, supra, at 153. [7] Whatever the reason for the omission, however, it is clear that even before the delegates had left Philadelphia, plans were under way to attack the proposed Constitution on the ground that it failed to contain a guarantee of civil jury trial in the new federal courts. See R. Rutland, George Mason 91 (1961); Wolfram 662. The virtually complete absence of a bill of rights in the proposed Constitution was the principal focus of the Anti-Federalists' attack on the Constitution, and the lack of a provision for civil juries featured prominently in their arguments. See Parsons v. Bedford, 3 Pet. 433, 445 (1830). Their pleas struck a responsive chord in the populace, and the price exacted in many States for approval of the Constitution was the appending of a list of recommended amendments, chief among them a clause securing the right of jury trial in civil cases. [8] Responding to the pressures for a civil jury guarantee generated during the ratification debates, the first Congress under the new Constitution at its first session in 1789 proposed to amend the Constitution by adding the following language: In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. 1 Annals of Cong. 435 (1789). That provision, altered in language to what became the Seventh Amendment, was proposed by the Congress in 1789 to the legislatures of the several States and became effective with its ratification by Virginia on December 15, 1791. [9] The foregoing sketch is meant to suggest what many of those who oppose the use of juries in civil trials seem to ignore. The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary. [10] Those who passionately advocated the right to a civil jury trial did not do so because they considered the jury a familiar procedural device that should be continued; the concerns for the institution of jury trial that led to the passages of the Declaration of Independence and to the Seventh Amendment were not animated by a belief that use of juries would lead to more efficient judicial administration. Trial by a jury of laymen rather than by the sovereign's judges was important to the founders because juries represent the layman's common sense, the passional elements in our nature, and thus keep the administration of law in accord with the wishes and feelings of the community. O. Holmes, Collected Legal Papers 237 (1920). Those who favored juries believed that a jury would reach a result that a judge either could not or would not reach. [11] It is with these values that underlie the Seventh Amendment in mind that the Court should, but obviously does not, approach the decision of this case.
+The Seventh Amendment requires that the right of trial by jury be preserved. Because the Seventh Amendment demands preservation of the jury trial right, our cases have uniformly held that the content of the right must be judged by historical standards. E. g., Curtis v. Loether, 415 U. S. 189, 193 (1974); Colgrove v. Battin, 413 U. S., at 155-156; Ross v. Bernhard, 396 U. S. 531, 533 (1970); Capital Traction Co. v. Hof, 174 U. S. 1,8-9 (1899); Parsons v. Bedford, supra, at 446. Thus, in Baltimore & Carolina Line v. Redman, 295 U. S. 654, 657 (1935), the Court stated that [t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted. And in Dimick v. Schiedt, 293 U. S. 474, 476 (1935), the Court held: In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791. [12] If a jury would have been impaneled in a particular kind of case in 1791, then the Seventh Amendment requires a jury trial today, if either party so desires. To be sure, it is the substance of the right of jury trial that is preserved, not the incidental or collateral effects of common-law practice in 1791. Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 596 (1897). The aim of the Amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury. . . . Baltimore & Carolina Line v. Redman, supra, at 657. Accord, Colgrove v. Battin, supra, at 156-157; Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 498 (1931); Ex parte Peterson, 253 U. S. 300, 309 (1920). The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law of 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing. Galloway v. United States, 319 U. S., at 390. To say that the Seventh Amendment does not tie federal courts to the exact procedure of the common law in 1791 does not imply, however, that any nominally procedural change can be implemented, regardless of its impact on the functions of the jury. For to sanction creation of procedural devices which limit the province of the jury to a greater degree than permitted at common law in 1791 is in direct contravention of the Seventh Amendment. See Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 322 (1967); Galloway v. United States, supra, at 395; Dimick v. Schiedt, supra, at 487; Ex parte Peterson, supra, at 309-310. And since we deal here not with the common law qua common law but with the Constitution, no amount of argument that the device provides for more efficiency or more accuracy or is fairer will save it if the degree of invasion of the jury's province is greater than allowed in 1791. To rule otherwise would effectively permit judicial repeal of the Seventh Amendment because nearly any change in the province of the jury, no matter how drastic the diminution of its functions, can always be denominated procedural reform. The guarantees of the Seventh Amendment will prove burdensome in some instances; the civil jury surely was a burden to the English governors who, in its stead, substituted the vice-admiralty court. But, as with other provisions of the Bill of Rights, the onerous nature of the protection is no license for contracting the rights secured by the Amendment. Because  `[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence . . . any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'  Dimick v. Schiedt, supra, at 486, quoted in Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 501 (1959).
+Judged by the foregoing principles, I think it is clear that petitioners were denied their Seventh Amendment right to a jury trial in this case. Neither respondent nor the Court doubts that at common law as it existed in 1791, petitioners would have been entitled in the private action to have a jury determine whether the proxy statement was false and misleading in the respects alleged. The reason is that at common law in 1791, collateral estoppel was permitted only where the parties in the first action were identical to, or in privity with, the parties to the subsequent action. [13] It was not until 1971 that the doctrine of mutuality was abrogated by this Court in certain limited circumstances. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313. [14] But developments in the judge-made doctrine of collateral estoppel, however salutary, cannot, consistent with the Seventh Amendment, contract in any material fashion the right to a jury trial that a defendant would have enjoyed in 1791. In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: It eliminates the right entirely and therefore contravenes the Seventh Amendment. The Court responds, however, that at common law a litigant was not entitled to have a jury [in a subsequent action at law between the same parties] determine issues that had been previously adjudicated by a chancellor in equity, and that petitioners have advanced no persuasive reason . . . why the meaning of the Seventh Amendment should depend on whether or not mutuality of parties is present. Ante, at 333, 335. But that is tantamount to saying that since a party would not be entitled to a jury trial if he brought an equitable action, there is no persuasive reason why he should receive a jury trial on virtually the same issues if instead he chooses to bring his lawsuit in the nature of a legal action. The persuasive reason is that the Seventh Amendment requires that a party's right to jury trial which existed at common law be preserved from incursions by the government or the judiciary. Whether this Court believes that use of a jury trial in a particular instance is necessary, or fair or repetitive is simply irrelevant. If that view is rigid, it is the Constitution which commands that rigidity. To hold otherwise is to rewrite the Seventh Amendment so that a party is guaranteed a jury trial in civil cases unless this Court thinks that a jury trial would be inappropriate. No doubt parallel procedural reforms could be instituted in the area of criminal jurisprudence, which would accomplish much the same sort of expedition of court calendars and conservation of judicial resources as would the extension of collateral estoppel in civil litigation. Government motions for summary judgment, or for a directed verdict in favor of the prosecution at the close of the evidence, would presumably save countless hours of judges' and jurors' time. It can scarcely be doubted, though, that such procedural reforms would not survive constitutional scrutiny under the jury trial guarantee of the Sixth Amendment. Just as the principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government, the right to a jury trial was not guaranteed in order to facilitate prompt and accurate decision of lawsuits. The essence of that right lies in its insistence that a body of laymen not permanently attached to the sovereign participate along with the judge in the factfinding necessitated by a lawsuit. And that essence is as much a part of the Seventh Amendment's guarantee in civil cases as it is of the Sixth Amendment's guarantee in criminal prosecutions. Cf. Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946). Relying on Galloway v. United States , Gasoline Products Co. v. Champlin Refining Co ., and Fidelity & Deposit Co. v. United States, 187 U. S. 315 (1902), the Court seems to suggest that the offensive use of collateral estoppel in this case is permissible under the limited principle set forth above that a mere procedural change that does not invade the province of the jury and a defendant's right thereto to a greater extent than authorized by the common law is permissible. But the Court's actions today constitute a far greater infringement of the defendant's rights than it ever before has sanctioned. In Galloway, the Court upheld the modern form of directed verdict against a Seventh Amendment challenge, but it is clear that a similar form of directed verdict existed at common law in 1791. E. g., Beauchamp v. Borret, Peake 148, 170 Eng. Rep. 110 (N. P. 1792); Coupey v. Henley, 2 Esp. 540, 542, 170 Eng. Rep. 448, 449 (C. P. 1797). [15] The modern form did not materially alter the function of the jury. Similarly, the modern device of summary judgment was found not to violate the Seventh Amendment because in 1791 a demurrer to the evidence, a procedural device substantially similar to summary judgment, was a common practice. E. g., Pawling v. United States, 4 Cranch 219, 221-222 (1808). [16] The procedural devices of summary judgment and directed verdict are direct descendants of their common-law antecedents. They accomplish nothing more than could have been done at common law, albeit by a more cumbersome procedure. See also Montgomery Ward & Co. v. Duncan, 311 U. S. 243, 250 (1940). And while at common law there apparently was no practice of setting aside a verdict in part, [17] the Court in Gasoline Products permitted a partial retrial of distinct and separable issues because the change in procedure would not impair the substance of the right to jury trial. 283 U. S., at 498. The parties in Gasoline Products still enjoyed the right to have a jury determine all issues of fact. By contrast, the development of nonmutual estoppel is a substantial departure from the common law and its use in this case completely deprives petitioners of their right to have a jury determine contested issues of fact. I am simply unwilling to accept the Court's presumption that the complete extinguishment of petitioners' right to trial by jury can be justified as a mere change in procedural incident or detail. Over 40 years ago, Mr. Justice Sutherland observed in a not dissimilar case: [T]his court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land. Dimick v. Schiedt, 293 U. S., at 485.",The Seventh Amendment provides:
+16,91420,1,1,"DEAR SIR: We have this day bought of you, as representative of the New Brunswick & Canada R.R. Co., one thousand tons old rails, for delivery in New York or New Haven (at our option), at $30, without duty, and delivery to be before Aug. 1st; and also two (2) to six hundred tons, for delivery in New York or New Haven, between August 1st and October 1st, at $28, without duty. Terms in each case cash ag'st B.L. and insurance policy in satisfactory company. Very resp'y, E.S. WHEELER & CO. NEW HAVEN, Jan'y 31, '80. S. WHEELER & Co., New Haven. We hereby accept your order of this date, and will deliver rails at place and on terms named. Resp. NEW BRUNSWICK & CANADA R.R. Co., JAMES MURCHIE, V. Pres't.  There was a tender of the rails by the railroad company, and a refusal to receive or pay for them by Wheeler & Co. The court finds as a matter of fact that the contract was a valid contract, and that Murchie had authority to make it on behalf of the company. The controversy in the case grows out of the following correspondence subsequent to the making of the contract by the execution and delivery of the foregoing papers: ST. STEPHEN, Feb. 17 th, 1880. MESS. E.S. WHEELER & CO., New Haven. Dear Sirs: I herewith enclose a copy of resolution passed at our meeting of directors yesterday. This confirmed the sale `made by me to you' by the company, which was done on my arrival home. The car-wheels and chains that we had on hand were sold before I came home. We will have a large quantity by the time we ship our rails. Please acknowledge the above. Yours, truly, JAMES MURCHIE. New Brunswick & Canada Railroad Company. Minute of a resolution passed at a directors' meeting February 16, 1880. Resolved, That the following sale of old rails, made by Mr. James Murchie to Messrs. E.S. Wheeler & Co., New Haven, Conn., be confirmed: Sold Messrs. E.S. Wheeler & Co. one thousand tons of old rails, for delivery in New York or New Haven, at their option, before August the 1st next, at thirty dollars ($30) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co., and also two hundred to six hundred tons, for delivery in New York or New Haven between August 1st and October 1st, at twenty-eight ($28) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co. In each case cash against invoice bill of lading. Insurance policy in satisfactory company. True copy: F.H. TODD, Pres. NEW HAVEN, Feb. 28, 1880. JAMES MURCHIE, ESQ., Vice Pres't New Brunswick & Canada R.R. Co., St. Stephens, Canada. DEAR SIR: We received duly your favor of the 17th inst., enclosing what purports to be a certified copy of a resolution adopted by the directors of the N.B. & C.R.R. Co. in reference to the sale of old rails made by you on behalf of that company to us on the 31st ult. We assume that this resolution was passed merely as a matter of form, and a copy has been sent to us for our information solely, as no mention was made at the time of the negotiations that you acted subject to any approval by your company. We understood then, and understand now, that the sale made at that time on behalf of your company was an absolute and final unconditional sale. We do not understand, further, that this resolution was forwarded to us with the view of in any way modifying that sale in any of its terms. Furthermore, we understood at the time, and now understand, that the number of pounds in each ton of this contract, there being no contrary specification when the contract was made, was not 2,000 but 2,240. Old rails, like other scrap and like pig-iron, are bought and sold by the gross ton, not only in this market but in every foreign market. The custom of the trade fixing 2,240 as the standard number of pounds in a ton of old rails is universal, and can be excluded from operating on contracts only by distinct conditions fixing some other quantity. No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your company, and in `gross' not `net' tons. We make no doubt but that your understanding of that contract is in accord with ours, and that in so far as this resolution fixes a different number of pounds for each ton, that it so fixes them by an oversight on the part of the directors. We hope to hear from you at your early convenience. Very truly yours, E.S. WHEELER. No answer was made to this letter, nor was any further correspondence had until June 14, when the railroad company notified Wheeler & Co. by letter that they had the 1,000 tons of old rails ready for delivery, and added — In your letter to James Murchie, as vice-president of our company, of February 28, last, you construe the contract as meaning that the ton of rails specified in that contract is 2,240 lbs., or the gross ton; now, without waiving any of our rights under that contract, but to avoid dispute, we tender you the delivery of the thousand tons at gross weight of 2,240 lbs. to the ton, and ask your determination whether the delivery shall be made at New Haven or New York. NEW BRUNSWICK & CANADA RAILROAD Co. By F.A. PIKE, Special Agent.  To which reply was made by the plaintiffs in error as follows: NEW HAVEN, June 15, 1880. NEW BRUNSWICK & CANADA RAILROAD Co. GENTLEMEN: Your letter of yesterday, advising us that you are ready to deliver to us 1,000 tons of old rails, and asking us to designate a port of delivery, is received. As we do not recognize the existence of any such contract of sale as your letter contemplates, we have no instructions to offer upon the subject. It is true that we tried last winter to buy of you 1,000 gross tons of old rails at a price which would have netted us a large profit; but this we had to lose, as your company insisted that they were selling net tons, and no contract resulted upon which we could base our sales. Very truly yours, E.S. WHEELER & Co. A similar correspondence took place between the parties in August, in reference to the six hundred tons tendered by the railroad company under the clause of the contract for two to six hundred tons to be delivered in that month. The court finds as a fact that each of the parties, at the time the contract was made, understood that the word tons meant tons of 2,240 pounds, and there was no misunderstanding between said persons (Wheeler and Murchie) as to the true intent and meaning of the contract. The court also finds that Murchie was duly authorized to make the contract on behalf of his company, and it rendered judgment for the plaintiff. 1. It is assigned for error that no legal contract between the parties to the action was established. 2. That, if any contract existed at any time, the defendant in error was estopped from setting it up as against the plaintiffs in error by the pleadings and by the facts proved. 3. If such contract existed, it was repudiated and terminated by the defendant in error in such manner as to discharge the plaintiffs in error from further obligation. 4. Damages were more than plaintiff was entitled to recover. As regards the first of these propositions, it is sufficient to say that the Circuit Court finds as a fact that there was a contract made. It also finds other facts which establish that proposition beyond controversy, namely, that Murchie and Wheeler, who signed and delivered the papers which constituted the written agreement, had authority to do so and to bind the parties to their action. The agreement, on its face, makes a contract. The court finds that there was no mistake or misunderstanding between Wheeler and Murchie as to the number of pounds which the ton should contain. It is, therefore, to be taken, as the foundation of the whole case, that when these papers were signed and delivered at New Haven, January 31, a valid and completed contract, the one on which the suit was brought, existed between the parties to the suit. The second and third grounds of error may be considered together. What was done by the railroad company which repudiated and terminated the contract and discharged Wheeler & Co. from its obligation, or estopped the railroad company from setting it up against them? It is to be observed that to annul or set aside this contract, fairly made, requires the consent of both parties to it, as it did to make it. There must have been the same meeting of minds, the same agreement to modify or abandon it, that was necessary to make it. All that was said or done, on which reliance is placed, for that purpose, is in the two letters, one written seventeen days after the contract was completed and the other twenty-eight days afterwards. The first of these, that of Murchie to Wheeler & Co., enclosing the resolutions of the directors of the railroad company, so far from repudiating the contract or denying its force and validity, by this resolution, in express terms, affirms it. Though the contract needed no ratification to make it binding, the company here ratifies what its vice-president had done. In doing this, it thought proper to place its own construction on the word ton, as used in the contract; but neither in the resolution of the directors nor in the letter of Mr. Murchie is there the slightest intimation that a difference of opinion on this matter would be relied on as impairing the obligation of the contract. If they believed that their construction was the right one, it was the simplest piece of justice and precaution to suggest it, leaving the question, as by law it must be left, to a court to construe, if the difference was insisted on by either party. Finding that Wheeler & Co. did not concur in this construction, the railroad company waived their view of it, and tendered performance in accordance with the view of the other party. Looking now to what was said by Wheeler & Co. in reply to this, it is still clearer that they did not entertain for a moment the idea of an abandonment or rescission of the contract; but, on the contrary, that they insisted on its continued existence and on performance of it according to their understanding of its meaning. After stating that they did not understand that the contract needed the ratification of the company to make it valid, they say: We understood then, and understand now, that the sale made at that time on behalf of your company was an absolute, and final, unconditional sale. We do not understand, further, that this resolution was forwarded to us with the view of in any way modifying that sale in any of its terms. Certainly this was a fair construction of the resolution. Then, after commenting on the commercial meaning of the word tons, which could only be varied by express conditions in the contract, they say: No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your company, and in `gross' not `net' tons. They then add their belief that Murchie, to whom the letter was addressed, understood the contract as Wheeler did as to the number of pounds to the ton. The correspondence ceased here until the time for delivery of the rails arrived. Nothing more was said or done by either party during this time. The last word from each to the other was a clear assertion of the existence of a valid contract, and the very last words of the correspondence was the assertion of Wheeler & Co. that we look for the delivery of the rails within the dates named in the contract. When, therefore, on the 14th of June, the railroad company notified Wheeler & Co. that they were ready to comply with the contract by delivering tons of 2,240 pounds, and requested to know whether it should be made at New York or New Haven, they must have been surprised by the letter of Wheeler & Co., denying the existence of the contract, and treating the matter as a negotiation from which no contract resulted. The contrast between this and their last letter of February 28th is indeed remarkable. By this letter of June 14th Wheeler & Co. do not place their refusal to receive on the ground now set up by counsel, namely, that though a contract was made, it had been waived or abandoned by the parties, or by the railroad company, or that the company was estopped from enforcing it; but on the broad ground that the negotiations for the sale and purchase of the iron had failed, and had never become a contract because of the disagreement as to the difference between net and gross tons. As there was a contract, as neither party had abandoned it, or expressed any purpose to do so, Wheeler & Co. were bound to accept and pay for the rails when tendered, unless they have some other good reason for not doing so. It is said such reason is to be found in the silence of the railroad company after the receipt of the letter of Wheeler & Co. to Murchie of the 28th of February, by which the railroad company is estopped from enforcing the contract. It would be difficult to make out such an estoppel from mere silence, since nothing remained to be done by either party until the time for performance came. If the letter of Wheeler & Co. had expressed any doubt of the binding force of the contract, or had made any proposal for its modification, or had suggested a willingness to reconsider the question of weight of the tons, there might be some reason why the railroad company should have responded, and why a failure to respond might be some small evidence of want of good faith. But these letters show a determination on both sides to insist on their rights under the contract, and Wheeler & Co.'s letter left no answer to be made unless the other party should yield its construction of the contract. It was not bound to do this. It had a right to insist on the contract, and to refer its performance of it to the courts in case it became necessary. The railroad company could, when the time for delivery of the rails came, deliver the one thousand tons by either standard. If the other party accepted there was an end of the matter. If it did not, it could accept pro tanto, and sue for the balance, or it could refuse to accept at all. But in all this the contract would remain, and would be the measure of the rights of the parties in court or out of it. There was, therefore, no necessity for the railroad company to reply to the letter of Wheeler & Co. It was not bound to say any more than it had said as to the true meaning of the contract. There was no demand in the letter of Wheeler & Co. that the railroad company should accept its construction. There was no intimation that if this was not done the contract was at an end, or would be abandoned. Let us suppose that the price of iron had risen instead of declining during this three or four months, and the railroad company had failed to deliver, would Wheeler & Co. have lost their right of action by anything in their letters, or by the cessation of the correspondence? Clearly not. And yet, if that correspondence released one party, it must have released both. There remained no obligation, unless it was mutual. The right to deliver and require payment, and the right to require delivery, were correlative rights, one of which could not exist without the other. The judgment of the court that plaintiff was entitled to recover is right. The objection to the amount of the recovery rests upon the contention of defendants that they were only bound by the contract for the October delivery to accept two hundred tons, while the court held them bound for the difference in price for six hundred tons. We concur with the Circuit Court in holding that when Wheeler & Co. say we have bought of you (the railroad company) from two (2) to six hundred tons for delivery in New York or New Haven between August 1st and October 1st that they agreed to accept any amount of old rails between those limits. The company was selling old rails. It knew that by August it would have a thousand tons. It did not know how much more they would have by October 1. It intended to secure the sale of what it might have, between two hundred and six hundred tons. Besides, as it was bound to do the first act in performance of the contract by delivering the iron, the option, if there was one, was with the railroad company. The defendants were never in condition to exercise this option, if one existed. Townsend v. Wells, 3 Day, 327; Patchin v. Swift, 21 Vermont, 292; M'Nitt v. Clark, 7 Johns. 465. The judgment of the Circuit Court is Affirmed.",Pres't N. Brunswick & Canada R.R.
+17,136984,1,2,"I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. 4 U. S. C. § 4. As part of an overall effort to codify and emphasize existing rules and customs pertaining to the display and use of the flag of the United States of America, see H. R. Rep. No. 2047, 77th Cong., 2d Sess., 1 (1942); S. Rep. No. 1477, 77th Cong., 2d Sess., 1 (1942), Congress enacted the Pledge on June 22, 1942. Pub. L. 623, ch. 435, § 7, 56 Stat. 380, former 36 U. S. C. § 1972. Congress amended the Pledge to include the phrase under God in 1954. Act of June 14, 1954, ch. 297, § 7, 68 Stat. 249. The amendment's sponsor, Representative Rabaut, said its purpose was to contrast this country's belief in God with the Soviet Union's embrace of atheism. 100 Cong. Rec. 1700 (1954). We do not know what other Members of Congress thought about the purpose of the amendment. Following the decision of the Court of Appeals in this case, Congress passed legislation that made extensive findings about the historic role of religion in the political development of the Nation and reaffirmed the text of the Pledge. Act of Nov. 13, 2002, Pub. L. 107-293, §§ 1-2, 116 Stat. 2057-2060. To the millions of people who regularly recite the Pledge, and who have no access to, or concern with, such legislation or legislative history, under God might mean several different things: that God has guided the destiny of the United States, for example, or that the United States exists under God's authority. How much consideration anyone gives to the phrase probably varies, since the Pledge itself is a patriotic observance focused primarily on the flag and the Nation, and only secondarily on the description of the Nation. The phrase under God in the Pledge seems, as a historical matter, to sum up the attitude of the Nation's leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion's role in our Nation's history abound. At George Washington's first inauguration on April 30, 1789, he stepped toward the iron rail, where he was to receive the oath of office. The diminutive secretary of the Senate, Samuel Otis, squeezed between the President and Chancellor Livingston and raised up the crimson cushion with a Bible on it. Washington put his right hand on the Bible, opened to Psalm 121:1: `I raise my eyes toward the hills. Whence shall my help come.' The Chancellor proceeded with the oath: `Do you solemnly swear that you will faithfully execute the office of President of the United States and will to the best of your ability preserve, protect and defend the Constitution of the United States?' The President responded, `I solemnly swear,' and repeated the oath, adding, `So help me God.' He then bent forward and kissed the Bible before him. M. Riccards, A Republic, If You Can Keep It: The Foundation of the American Presidency, 1700-1800, pp. 73-74 (1987). Later the same year, after encouragement from Congress, [3] Washington issued his first Thanksgiving proclamation, which began: Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor—and whereas both Houses of Congress have by their joint Committee requested me `to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.' 4 Papers of George Washington 131: Presidential Series (W. Abbot & D. Twohig eds. 1993). Almost all succeeding Presidents have issued similar Thanksgiving proclamations. Later Presidents, at critical times in the Nation's history, have likewise invoked the name of God. Abraham Lincoln, concluding his masterful Gettysburg Address in 1863, used the very phrase under God: It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth. 1 Documents of American History 429 (H. Commager ed. 8th ed. 1968). Lincoln's equally well-known second inaugural address, delivered on March 4, 1865, makes repeated references to God, concluding with these famous words: With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations. Id., at 443. Woodrow Wilson appeared before Congress in April 1917, to request a declaration of war against Germany. He finished with these words: But the right is more precious than peace, and we shall fight for the things which we have always carried nearest our hearts,—for democracy, for the right of those who submit to authority to have a voice in their own Governments, for the rights and liberties of small nations, for a universal dominion of right for such a concert of free peoples as shall bring peace and safety to all nations and make the world itself at last free. To such a task we can dedicate our lives and our fortunes, everything that we are and everything that we have, with the pride of those who know that the day has come when America is privileged to spend her blood and her might for the principles that gave her birth and happiness and the peace which she has treasured. God helping her, she can do no other. 2 id., at 132. President Franklin Delano Roosevelt, taking the office of the Presidency in the depths of the Great Depression, concluded his first inaugural address with these words: In this dedication of a nation we humbly ask the blessing of God. May He protect each and every one of us! May He guide me in the days to come! 2 id., at 242. General Dwight D. Eisenhower, who would himself serve two terms as President, concluded his Order of the Day to the soldiers, sailors, and airmen of the Allied Expeditionary Force on D-Day—the day on which the Allied Forces successfully landed on the Normandy beaches in France—with these words: Good Luck! And let us all beseech the blessing of Almighty God upon this great and noble undertaking, http://www.eisenhower.archives.gov/dl/DDay/SoldiersSailorsAirmen.pdf (all Internet materials as visited June 9, 2004, and available in Clerk of Court's case file). The motto In God We Trust first appeared on the country's coins during the Civil War. Secretary of the Treasury Salmon P. Chase, acting under the authority of an Act of Congress passed in 1864, prescribed that the motto should appear on the two cent coin. The motto was placed on more and more denominations, and since 1938 all United States coins bear the motto. Paper currency followed suit at a slower pace; Federal Reserve notes were so inscribed during the decade of the 1960's. Meanwhile, in 1956, Congress declared that the motto of the United States would be In God we Trust. Act of July 30, 1956, ch. 795, 70 Stat. 732. Our Court Marshal's opening proclamation concludes with the words `God save the United States and this honorable Court.' The language goes back at least as far as 1827. O. Smith, Early Indiana Trials and Sketches: Reminiscences (1858) (quoted in 1 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926)). All of these events strongly suggest that our national culture allows public recognition of our Nation's religious history and character. In the words of the House Report that accompanied the insertion of the phrase under God in the Pledge: From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God. H. R. Rep. No. 1693, 83d Cong., 2d Sess., 2 (1954). Giving additional support to this idea is our national anthem The Star-Spangled Banner, adopted as such by Congress in 1931. 36 U. S. C. § 301 and Historical and Revision Notes. The last verse ends with these words: Then conquer we must, when our cause it is just, And this be our motto: `In God is our trust.' And the star-spangled banner in triumph shall wave O'er the land of the free and the home of the brave! http://www.bcpl.net/~etowner/anthem.html. As pointed out by the Court, California law requires public elementary schools to conduc[t] . . . appropriate patriotic exercises at the beginning of the schoolday, and notes that the giving of the Pledge of Allegiance to the Flag of the United States of America shall satisfy the requirements of this section. Cal. Educ. Code Ann. § 52720 (West 1989). The School District complies with this requirement by instructing that [e]ach elementary school class recite the [P]ledge of [A]llegiance to the [F]lag once each day. App. 149-150. Students who object on religious (or other) grounds may abstain from the recitation. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (holding that the government may not compel school students to recite the Pledge). Notwithstanding the voluntary nature of the School District policy, the Court of Appeals, by a divided vote, held that the policy violates the Establishment Clause of the First Amendment because it impermissibly coerces a religious act. Newdow v. U. S. Congress, 328 F. 3d 466, 487 (CA9 2003). To reach this result, the court relied primarily on our decision in Lee v. Weisman, 505 U. S. 577 (1992). That case arose out of a graduation ceremony for a public high school in Providence, Rhode Island. The ceremony began with an invocation and ended with a benediction, both given by a local rabbi. The Court held that even though attendance at the ceremony was voluntary, students who objected to the prayers would nonetheless feel coerced to attend and to stand during each prayer. But the Court throughout its opinion referred to the prayer as an explicit religious exercise, id., at 598, and a formal religious exercise, id., at 589. As the Court notes in its opinion, the Pledge of Allegiance evolved as a common public acknowledgment of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles. Ante, at 6. I do not believe that the phrase under God in the Pledge converts its recital into a religious exercise of the sort described in Lee. Instead, it is a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents. The phrase under God is in no sense a prayer, nor an endorsement of any religion, but a simple recognition of the fact noted in H. R. Rep. No. 1693, at 2: From the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God. Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church. [4] There is no doubt that respondent is sincere in his atheism and rejection of a belief in God. But the mere fact that he disagrees with this part of the Pledge does not give him a veto power over the decision of the public schools that willing participants should pledge allegiance to the flag in the manner prescribed by Congress. There may be others who disagree, not with the phrase under God, but with the phrase with liberty and justice for all. But surely that would not give such objectors the right to veto the holding of such a ceremony by those willing to participate. Only if it can be said that the phrase under God somehow tends to the establishment of a religion in violation of the First Amendment can respondent's claim succeed, where one based on objections to with liberty and justice for all fails. Our cases have broadly interpreted this phrase, but none have gone anywhere near as far as the decision of the Court of Appeals in this case. The recital, in a patriotic ceremony pledging allegiance to the flag and to the Nation, of the descriptive phrase under God cannot possibly lead to the establishment of a religion, or anything like it. When courts extend constitutional prohibitions beyond their previously recognized limit, they may restrict democratic choices made by public bodies. Here, Congress prescribed a Pledge of Allegiance, the State of California required patriotic observances in its schools, and the School District chose to comply by requiring teacher-led recital of the Pledge of Allegiance by willing students. Thus, we have three levels of popular government — the national, the state, and the local — collaborating to produce the Elk Grove ceremony. The Constitution only requires that schoolchildren be entitled to abstain from the ceremony if they chose to do so. To give the parent of such a child a sort of heckler's veto over a patriotic ceremony willingly participated in by other students, simply because the Pledge of Allegiance contains the descriptive phrase under God, is an unwarranted extension of the Establishment Clause, an extension which would have the unfortunate effect of prohibiting a commendable patriotic observance.",The Pledge of Allegiance reads:
+18,127916,1,1,"The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. § 1226(e) (emphasis added). There is no dispute that after respondent's release from prison in 1999, the Attorney General detained him under this section, i. e., under § 1226. And, the action of which respondent complains is one regarding the detention or release of a[n] alien or the grant, revocation, or denial of bond or parole. § 1226(e). In my view, the only plausible reading of § 1226(e) is that Congress intended to prohibit federal courts from set[ting] aside the Attorney General's decision to deem a criminal alien such as respondent ineligible for release during the limited duration of his or her removal proceedings. I recognize both the strong presumption in favor of judicial review of administrative action and our longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction. INS v. St. Cyr, 533 U. S. 289, 298 (2001). I also acknowledge that Congress will not be deemed to have repealed habeas jurisdiction in the absence of a specific and unambiguous statutory directive to that effect. See id., at 312-313; Ex parte Yerger, 8 Wall. 85, 105 (1869). Here, however, the signal sent by Congress in enacting § 1226(e) could not be clearer:  No court may set aside any action or decision ... regarding the detention or release of any alien. (Emphasis added.) There is simply no reasonable way to read this language other than as precluding all review, including habeas review, of the Attorney General's actions or decisions to detain criminal aliens pursuant to § 1226(c). In St. Cyr, the Court held that certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) do not strip federal courts of their jurisdiction to review an alien's habeas claim that he or she is eligible for a waiver of deportation. 533 U. S., at 312. I dissented in that case, and continue to believe it was wrongly decided. Nothing in St. Cyr, however, requires that we ignore the plain language and clear meaning of § 1226(e). In St. Cyr, the Court stressed the significance of Congress' use of the term judicial review in each of the jurisdictional-limiting provisions at issue. In concluding that Congress had not intended to limit habeas jurisdiction by limiting judicial review, the Court reasoned as follows: The term `judicial review' or `jurisdiction to review' is the focus of each of these three provisions. In the immigration context, `judicial review' and `habeas corpus' have historically distinct meanings. See Heikkila v. Barber, 345 U. S. 229 (1953). In Heikkila, the Court concluded that the finality provisions at issue `preclud[ed] judicial review' to the maximum extent possible under the Constitution, and thus concluded that the [Administrative Procedure Act] was inapplicable. Id., at 235. Nevertheless, the Court reaffirmed the right to habeas corpus. Ibid. Noting that the limited role played by the courts in habeas corpus proceedings was far narrower than the judicial review authorized by the APA, the Court concluded that `it is the scope of inquiry on habeas corpus that differentiates' habeas review from `judicial review.' Id., at 311-312. In this case, however, § 1226(e) does not mention any limitations on judicial review. To be sure, the first sentence of § 1226(e) precludes review of the Attorney General's discretionary judgment[s] to detain aliens under § 1226(c). But the second sentence is not so limited, and states unequivocally that [n]o court may set aside any action or decision to detain an alien under § 1226(c). It cannot seriously be maintained that the second sentence employs a term of art such that no court does not really mean no court, or that a decision of the Attorney General may not be set aside in actions filed under the Immigration and Naturalization Act but may be set aside on habeas review. Congress' use of the term Judicial review as the title of § 1226(e) does not compel a different conclusion. As the Court stated in St. Cyr, a title alone is not controlling, id., at 308, because the title of a statute has no power to give what the text of the statute takes away. Where as here the statutory text is clear, `the title of a statute ... cannot limit the plain meaning of the text.' Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947)). The Court also focused in St. Cyr on the absence of any language in the relevant statutory provisions making explicit reference to habeas review under 28 U.S.C. § 2241. See 533 U.S., at 313, n. 36. This statutory silence spoke volumes, the Court reasoned, in light of the historic use of § 2241 jurisdiction as a means of reviewing deportation and exclusion orders, ibid. In contrast, there is no analogous history of routine reliance on habeas jurisdiction to challenge the detention of aliens without bail pending the conclusion of removal proceedings. We have entertained such challenges only twice, and neither was successful on the merits. See Reno v. Flores, 507 U.S. 292 (1993); Carlson v. Landon, 342 U.S. 524 (1952). See also Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1067, n. 120 (1998) (distinguishing detention pursuant to a final order of removal from the interlocutory detention at issue here). Congress' failure to mention § 2241 in this context therefore lacks the significance that the Court accorded Congress' silence on the issue in St. Cyr. In sum, nothing in St. Cyr requires us to interpret 8 U.S.C. § 1226(e) to mean anything other than what its plain language says. I recognize that the two Courts of Appeals that have considered the issue have held that § 1226(e) does not preclude habeas claims such as respondent's. See Patel v. Zemski, 275 F. 3d 299 (CA3 2001); Parra v. Perryman, 172 F. 3d 954 (CA7 1999). In Parra, the Seventh Circuit held that § 1226(e) does not bar challenges to § 1226(c) itself, as opposed to decisions implementing that subsection. Id., at 957. Though the Court's opinion today relies heavily on this distinction, I see no basis for importing it into the plain language of the statute. The Seventh Circuit sought support from our decision in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (AADC), but our holding there supports my reading of § 1226(e). In AADC, the Court construed a statute that sharply limits review of claims arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this [Act]. 8 U.S.C. § 1252(g) (1994 ed., Supp. III). The Court concluded that this provision imposes jurisdictional limits only on claims addressing one of the three `decision[s] or action[s]' specifically enumerated in the statute. AADC, supra, at 482. Nowhere in AADC did the Court suggest, however, that the statute's jurisdictional limits might not apply depending on the particular grounds raised by an alien for challenging the Attorney General's decisions or actions in these three areas. AADC therefore provides no support for imposing artificial limitations on the broad scope of 8 U.S.C. § 1226(e).",I begin with the text of the statute:
+19,109727,1,3,"
+Last Term, in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S. 748 (1976), the Court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of unprofessional conduct if he advertised prescription drug prices. The pharmacist would then be subject to a monetary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish to report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: `I will sell you the X prescription drug at the Y price.' Id., at 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment. Our analysis began, ibid., with the observation that our cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U. S. 1 (1976); New York Times Co. v. Sullivan, 376 U. S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U. S. 147 (1959); Murdock v. Pennsylvania, 319 U. S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra ; Cantwell v. Connecticut, 310 U. S. 296 (1940). If commercial speech is to be distinguished, it must be distinguished by its content. 425 U. S., at 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction. Even though the speaker's interest is largely economic, the Court has protected such speech in certain contexts. See, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575 (1969); Thornhill v. Alabama, 310 U. S. 88 (1940). The listener's interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, 421 U. S. 809 (1975). And commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co., 386 U. S. 568, 603-604 (1967) (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decisionmaking. 425 U. S., at 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer's expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician's advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist's effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman—an image that was said to attract talent to the profession and to reinforce the good habits of those in it—to that of a mere shopkeeper. Id., at 766-768. Although acknowledging that the State had a strong interest in maintaining professionalism among pharmacists, this Court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id., at 768. And we observed that on close inspection it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. Id., at 769. But we noted the presence of a potent alternative to this highly paternalistic approach: That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. Id., at 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice that the First Amendment makes for us. Ibid. See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 97 (1977). We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona's disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. [17] In the instant case we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
+The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants' advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients—at the hospital room or the accident site, or in any other situation that breeds undue influence—by attorneys or their agents or runners. Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee's criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney's name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, in the classified section of the telephone directory. DR 2-102 (A) (6) (1976). [18] We recognize, however, that an advertising diet limited to such spartan fare would provide scant nourishment. The heart of the dispute before us today is whether lawyers also may constitutionally advertise the prices at which certain routine services will be performed. Numerous justifications are proffered for the restriction of such price advertising. We consider each in turn: 1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve. Advertising is also said to erode the client's trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client's welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession. We recognize, of course, and commend the spirit of public service with which the profession of law is practiced and to which it is dedicated. The present Members of this Court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. [19] And rare is the client, moreover, even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach a clear agreement with his client as to the basis of the fee charges to be made, and that this is to be done [a]s soon as feasible after a lawyer has been employed. Code of Professional Responsibility EC 2-19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office. Moreover, the assertion that advertising will diminish the attorney's reputation in the community is open to question. Bankers and engineers advertise, [20] and yet these professions are not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. [21] The absence of advertising may be seen to reflect the profession's failure to reach out and serve the community: Studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services [22] or because of an inability to locate a competent attorney. [23] Indeed, cynicism with regard to the profession may be created by the fact that it long has publicly eschewed advertising, while condoning the actions of the attorney who structures his social or civic associations so as to provide contacts with potential clients. It appears that the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on trade as unseemly. See H. Drinker, Legal Ethics 5, 210-211 (1953). [24] Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession. Id., at 211. But habit and tradition are not in themselves an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind. Since the belief that lawyers are somehow above trade has become an anachronism, the historical foundation for the advertising restraint has crumbled. 2. The Inherently Misleading Nature of Attorney Advertising. It is argued that advertising of legal services inevitably will be misleading (a) because such services are so individualized with regard to content and quality as to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal services is unable to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and fail to show the relevant factor of skill. We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. [25] The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like—the very services advertised by appellants. [26] Although the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price. [27] The argument that legal services are so unique that fixed rates cannot meaningfully be established is refuted by the record in this case: The appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this Court in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. [28] The second component of the argument—that advertising ignores the diagnostic role—fares little better. [29] It is unlikely that many people go to an attorney merely to ascertain if they have a clean bill of legal health. Rather, attorneys are likely to be employed to perform specific tasks. Although the client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to which advertising lends itself. The third component is not without merit: Advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an informed decision. The alternative—the prohibition of advertising—serves only to restrict the information that flows to consumers. [30] Moreover, the argument assumes that the public is not sophisticated enough to realize the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 769-770. Although, of course, the bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, the preferred remedy is more disclosure, rather than less. If the naiveté of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective. 3. The Adverse Effect on the Administration of Justice. Advertising is said to have the undesirable effect of stirring up litigation. [31] The judicial machinery is designed to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose. There is even a suggestion of barratry. See, e. g., Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674, 675-676 (1958). But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action. [32] As the bar acknowledges, the middle 70% of our population is not being reached or served adequately by the legal profession. ABA, Revised Handbook on Prepaid Legal Services 2 (1972). [33] Among the reasons for this underutilization is fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and 23, supra. Advertising can help to solve this acknowledged problem: Advertising is the traditional mechanism in a free-market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar's obligation to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available. ABA Code of Professional Responsibility EC 2-1 (1976). 4. The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar's established members. These two arguments seem dubious at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 768, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced. Although it is true that the effect of advertising on the price of services has not been demonstrated, there is revealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. [34] It is entirely possible that advertising will serve to reduce, not advance, the cost of legal services to the consumer. [35] The entry-barrier argument is equally unpersuasive. In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry-barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market. 5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given package of service at a set price, and will be inclined to provide, by indiscriminate use, the standard package regardless of whether it fits the client's needs. Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality will do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an attorney who advertises a standard fee will cut quality is substantially undermined by the fixed-fee schedule of appellee's own prepaid Legal Services Program. Even if advertising leads to the creation of legal clinics like that of appellants'—clinics that emphasize standardized procedures for routine problems—it is possible that such clinics will improve service by reducing the likelihood of error. 6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint because of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome. It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: They will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latter's interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust. In sum, we are not persuaded that any of the proffered justifications rise to the level of an acceptable reason for the suppression of all advertising by attorneys.
+In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally to suppress speech would end our analysis. In the First Amendment context, the Court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e. g., Bigelow v. Virginia, 421 U. S., at 815-816; Gooding v. Wilson, 405 U. S. 518, 521-522 (1972); Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts. The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973); United States v. Raines, 362 U. S. 17, 21 (1960); Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). The reason for the special rule in First Amendment cases is apparent: An overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button, 371 U. S. 415, 433 (1963). Indeed, such a person might choose not to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted. But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 771 n. 24, there are commonsense differences between commercial speech and other varieties. See also id., at 775-781 (concurring opinion). Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. See id., at 771-772, n. 24. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his speech is truthful and protected. Ibid. Since overbreadth has been described by this Court as strong medicine, which has been employed . . . sparingly and only as a last resort, Broadrick v. Oklahoma, 413 U. S., at 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U. S., at 817-818. Is, then, appellants' advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants' advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a legal clinic, an allegedly undefined term; (b) the advertisement claims that appellants offer services at very reasonable prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. Tr. of Oral Arg. 56-57. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term legal clinic—if, indeed, it focused on the term at all—to refer to an operation like that of appellants' that is geared to provide standardized and multiple services. In fact, in his deposition the president of the State Bar of Arizona observed that there was a committee of the bar exploring the ways in which the legal clinic concept can be properly developed. App. 375; see id., at 401. See also id., at 84-85 (testimony of appellants). And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood. As to the cost of an uncontested divorce, appellee's counsel stated at oral argument that this runs from $150 to $300 in the area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems very reasonable in light of the customary charge. Appellee's own Legal Services Program sets the rate for an uncontested divorce at $250. App. 473. Of course, advertising will permit the comparison of rates among competitors, thus revealing if the rates are reasonable. As to the final argument—the failure to disclose that a name change might be accomplished by the client without the aid of an attorney—we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California, 422 U. S. 806 (1975); ABA Code of Professional Responsibility EC 3-7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the State provides assistance for laymen. The deposition of one appellant, however, reflects that when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself. [36] App. 112. We conclude that it has not been demonstrated that the advertisement at issue could be suppressed.",The First Amendment
+20,145702,2,1,"1. Segregation, 1945 to 1956. During and just after World War II, significant numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3% of the total Seattle population in the mid-1950's, nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white. 2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle School Board reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75%) wrote the Seattle board, complaining that the `boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District . . . but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.'  In 1963, at the insistence of the National Association for the Advancement of Colored People (NAACP) and other community groups, the school board adopted a new racebased transfer policy. The new policy added an explicitly racial criterion: If a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school. At that time one high school, Garfield, was about two-thirds minority; eight high schools were virtually all white. In 1963, the transfer program's first year, 239 black students and 8 white students transferred. In 1969, about 2,200 (of 10,383 total) of the district's black students and about 400 of the district's white students took advantage of the plan. For the next decade, annual program transfers remained at approximately this level. 3. The NAACP's First Legal Challenge and Seattle's Response, 1969 to 1977. In 1969 the NAACP filed a federal lawsuit against the school board, claiming that the board had unlawfully and unconstitutionally establish[ed] and maintain[ed] a system of racially segregated public schools. The complaint said that 77% of black public elementary school students in Seattle attended 9 of the city's 86 elementary schools and that 23 of the remaining schools had no black students at all. Similarly, of the 1,461 black students enrolled in the 12 senior high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high schools, and 900 (61.6%) attended a single school, Garfield. The complaint charged that the school board had brought about this segregated system in part by mak[ing] and enforc[ing] certain rules and regulations, in part by drawing . . . boundary lines and executing school attendance policies that would create and maintain predominantly Negro or non-white schools, and in part by building schools in such a manner as to restrict the Negro plaintiffs and the class they represent to predominantly negro or non-white schools. The complaint also charged that the board discriminated in assigning teachers. The board responded to the lawsuit by introducing a plan that required race-based transfers and mandatory busing. The plan created three new middle schools at three school buildings in the predominantly white north end. It then created a mixed student body by assigning to those schools students who would otherwise attend predominantly white, or predominantly black, schools elsewhere. It used explicitly racial criteria in making these assignments ( i.e., it deliberately assigned to the new middle schools black students, not white students, from the black schools and white students, not black students, from the white schools). And it used busing to transport the students to their new assignments. The plan provoked considerable local opposition. Opponents brought a lawsuit. But eventually a state court found that the mandatory busing was lawful. In 1976-1977, the plan involved the busing of about 500 middle school students (300 black students and 200 white students). Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus about 2,000 students out of a total district population of about 60,000 students were involved in one or the other transfer program. At that time, about 20% or 12,000 of the district's students were black. And the board continued to describe 26 of its 112 schools as segregated. 4. The NAACP's Second Legal Challenge, 1977. In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfare's Office for Civil Rights (OCR). The complaint alleged that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that need-lessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts. The OCR and the school board entered into a formal settlement agreement. The agreement required the board to implement what became known as the Seattle Plan. 5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to implement the Seattle Plan in 1978. This plan labeled racially imbalanced any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. It applied that label to 26 schools, including 4 high schools—Cleveland (72.8% minority), Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9% minority). The plan paired (or triaded) imbalanced black schools with imbalanced white schools. It then placed some grades (say, third and fourth grades) at one school building and other grades (say, fifth and sixth grades) at the other school building. And it thereby required, for example, all fourth grade students from the previously black and previously white schools first to attend together what would now be a mixed fourth grade at one of the school buildings and then the next year to attend what would now be a mixed fifth grade at the other school building. At the same time, the plan provided that a previous black school would remain about 50% black, while a previous white school would remain about two-thirds white. It was consequently necessary to decide with some care which students would attend the new mixed grade. For this purpose, administrators cataloged the racial makeup of each neighborhood housing block. The school district met its percentage goals by assigning to the new mixed school an appropriate number of black housing blocks and white housing blocks. At the same time, transport from house to school involved extensive busing, with about half of all students attending a school other than the one closest to their home. The Seattle Plan achieved the school integration that it sought. Just prior to the plan's implementation, for example, 4 of Seattle's 11 high schools were imbalanced, i.e., almost exclusively black or almost exclusively white. By 1979, only two were out of balance. By 1980 only Cleveland remained out of balance (as the board defined it) and that by a mere two students. Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition within the State. See generally Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 461—466 (1982). Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. Id., at 462. The Seattle School Board challenged the constitutionality of the initiative. Id., at 464. This Court then held that the initiative—which would have prevented the Seattle Plan from taking effect—violated the Fourteenth Amendment. Id., at 470. 6. Student Choice, 1988 to 1998. By 1988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from about 100,000 to less than 50,000. The racial makeup of the school population amounted to 43% white, 24% black, and 23% Asian or Pacific Islander, with Hispanics and Native Americans making up the rest. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us. The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. In respect to high schools, for example, a student was given a list of a subset of schools, carefully selected by the board to balance racial distribution in the district by including neighborhood schools and schools in racially different neighborhoods elsewhere in the city. The student could then choose among those schools, indicating a first choice, and other choices the student found acceptable. In making an assignment to a particular high school, the district would give first preference to a student with a sibling already at the school. It gave second preference to a student whose race differed from a race that was over-represented at the school ( i.e., a race that accounted for a higher percentage of the school population than of the total district population). It gave third preference to students residing in the neighborhood. It gave fourth preference to students who received child care in the neighborhood. In a typical year, say, 1995, about 20,000 potential high school students participated. About 68% received their first choice. Another 16% received an acceptable choice. A further 16% were assigned to a school they had not listed. 7. The Current Plan, 1999 to the Present. In 1996, the school board adopted the present plan, which began in 1999. In doing so, it sought to deemphasize the use of racial criteria and to increase the likelihood that a student would receive an assignment at his first or second choice high school. The district retained a racial tiebreaker for oversubscribed schools, which takes effect only if the school's minority or majority enrollment falls outside of a 30% range centered on the minority/majority population ratio within the district. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice without regard to race. Thus, at worst, a student would have to spend one year at a high school he did not pick as a first or second choice. The new plan worked roughly as expected for the two school years during which it was in effect (1999-2000 and 2000-2001). In the 2000-2001 school year, for example, with the racial tiebreaker, the entering ninth grade class at Franklin High School had a 60% minority population; without the racial tiebreaker that same class at Franklin would have had an almost 80% minority population. (We consider only the ninth grade since only students entering that class were subject to the tiebreaker, and because the plan was not in place long enough to change the composition of an entire school.) In the year 2005-2006, by which time the racial tiebreaker had not been used for several years, Franklin's overall minority enrollment had risen to 90%. During the period the tiebreaker applied, it typically affected about 300 students per year. Between 80% and 90% of all students received their first choice assignment; between 89% and 97% received their first or second choice assignment. Petitioner Parents Involved in Community Schools objected to Seattle's most recent plan under the State and Federal Constitutions. In due course, the Washington Supreme Court, the Federal District Court, and the Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge and found Seattle's plan lawful.",Seattle
+21,145702,2,2,"1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made clear that Kentucky could no longer require racial segregation by law, the Louisville Board of Education created a geography-based student assignment plan designed to help achieve school integration. At the same time it adopted an open transfer policy under which approximately 3,000 of Louisville's 46,000 students applied for transfer. By 1972, however, the Louisville School District remained highly segregated. Approximately half the district's public school enrollment was black; about half was white. Fourteen of the district's nineteen nonvocational middle and high schools were close to totally black or totally white. Nineteen of the district's forty-six elementary schools were between 80% and 100% black. Twenty-one elementary schools were between roughly 90% and 100% white. 2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisville's schools and combined them with those of the surrounding suburbs. (For ease of exposition, I shall still use Louisville to refer to what is now the combined districts.) After preliminary rulings and an eventual victory for the plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in July 1975 entered an order requiring desegregation. The order's requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20% of whom were black. The order required the school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12% and 40% black, and for secondary schools (with one exception), between 12.5% and 35% black. The District Court also adopted a complex desegregation plan designed to achieve the order's targets. The plan required redrawing school attendance zones, closing 12 schools, and busing groups of students, selected by race and the first letter of their last names, to schools outside their immediate neighborhoods. The plan's initial busing requirements were extensive, involving the busing of 23,000 students and a transportation fleet that had to operate from early in the morning until late in the evening. For typical students, the plan meant busing for several years (several more years for typical black students than for typical white students). The following notice, published in a Louisville newspaper in 1976, gives a sense of how the district's race-based busing plan operated in practice: Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954-1978, p. 176 (1979)). The District Court monitored implementation of the plan. In 1978, it found that the plan had brought all of Louisville's schools within its `guidelines' for racial composition for at least a substantial portion of the [previous] three years. It removed the case from its active docket while stating that it expected the board to continue to implement those portions of the desegregation order which are by their nature of a continuing effect. By 1984, after several schools had fallen out of compliance with the order's racial percentages due to shifting demographics in the community, the school board revised its desegregation plan. In doing so, the board created a new racial guideline, namely a floating range of 10% above and 10% below the countywide average for the different grade levels. The board simultaneously redrew district boundaries so that middle school students could attend the same school for three years and high school students for four years. It added magnet programs at two high schools. And it adjusted its alphabet-based system for grouping and busing students. The board estimated that its new plan would lead to annual reassignment (with busing) of about 8,500 black students and about 8,000 white students. 3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the board had concluded that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentucky's newly adopted Education Reform Act. It consequently conducted a nearly year-long review of its plan. In doing so, it consulted widely with parents and other members of the local community, using public presentations, public meetings, and various other methods to obtain the public's input. At the conclusion of this review, the board adopted a new plan, called Project Renaissance, that emphasized student choice. Project Renaissance again revised the board's racial guidelines. It provided that each elementary school would have a black student population of between 15% and 50%; each middle and high school would have a black population and a white population that fell within a range, the boundaries of which were set at 15% above and 15% below the general student population percentages in the county at that grade level. The plan then drew new geographical school assignment zones designed to satisfy these guide-lines; the district could reassign students if particular schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets. In respect to elementary schools, the plan first drew a neighborhood line around each elementary school, and it then drew a second line around groups of elementary schools (called clusters). It initially assigned each student to his or her neighborhood school, but it permitted each student freely to transfer between elementary schools within each cluster provided that the transferring student (a) was black if transferring from a predominantly black school to a predominantly white school, or (b) was white if transferring from a predominantly white school to a predominantly black school. Students could also apply to attend magnet elementary schools or programs. The plan required each middle school student to be assigned to his or her neighborhood school unless the student applied for, and was accepted by, a magnet middle school. The plan provided for open high school enrollment. Every 9th or 10th grader could apply to any high school in the system, and the high school would accept applicants according to set criteria—one of which consisted of the need to attain or remain in compliance with the plan's racial guidelines. Finally, the plan created two new magnet schools, one each at the elementary and middle school levels. 4. The Current Plan: Project Renaissance Modified, 1996 to 2003. In 1995 and 1996, the Louisville School Board, with the help of a special Planning Team, community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in 1996, the board modified Project Renaissance, thereby creating the present plan. At the time, the district's public school population was approximately 30% black. The plan consequently redrew the racial guidelines, setting the boundaries at 15% to 50% black for all schools. It again redrew school assignment boundaries. And it expanded the transfer opportunities available to elementary and middle school pupils. The plan forbade transfers, however, if the transfer would lead to a school population outside the guideline range, i.e., if it would create a school where fewer than 15% or more than 50% of the students were black. The plan also established Parent Assistance Centers to help parents and students navigate the school selection and assignment process. It pledged the use of other resources in order to encourage all schools to achieve an African-American enrollment equivalent to the average district-wide African-American enrollment at the school's respective elementary, middle or high school level. And the plan continued use of magnet schools. In 1999, several parents brought a lawsuit in federal court attacking the plan's use of racial guidelines at one of the district's magnet schools. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. The board opposed dissolution, arguing that the old dual system had left a demographic imbalance that prevent[ed] dissolution. In 2000, after reviewing the present plan, the District Court dissolved the 1975 order. It wrote that there was overwhelming evidence of the Board's good faith compliance with the desegregation Decree and its underlying purposes. It added that the Louisville School Board had treated the ideal of an integrated system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education. The Court also found that the magnet programs available at the high school in question were not available at other high schools in the school district. It consequently held unconstitutional the use of race-based targets to govern admission to magnet schools. And it ordered the board not to control access to those scarce programs through the use of racial targets. 5. The Current Lawsuit, 2003 to the Present. Subsequent to the District Court's dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the court's magnet school determination. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan's unmodified portions, i.e., those portions that dealt with ordinary, not magnet, schools. Both the District Court and the Court of Appeals for the Sixth Circuit rejected Meredith's challenge and held the unmodified aspects of the plan constitutional.",Louisville
+22,145702,1,2,"A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Because of its importance, I shall repeat what this Court said about the matter in Swann. Chief Justice Burger, on behalf of a unanimous Court in a case of exceptional importance, wrote: School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities. 402 U. S., at 16. The statement was not a technical holding in the case. But the Court set forth in Swann a basic principle of constitutional law—a principle of law that has found wide acceptance in the legal culture. Dickerson v. United States, 530 U. S. 428, 443 (2000) (internal quotation marks omitted); Mitchell v. United States, 526 U. S. 314, 330 (1999); id., at 331, 332 (SCALIA, J., dissenting) (citing `wide acceptance in the legal culture' as adequate reason not to overrule prior cases). Thus, in North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 45 (1971), this Court, citing Swann, restated the point. [S]chool authorities, the Court said, have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. ThenJ-ustice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978) (opinion in chambers), making clear that he too believed that Swann 's statement reflected settled law: While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action. (Emphasis in original.) These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect. Indeed, in McDaniel, a case decided the same day as Swann, a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure—pressure Seattle also encountered). The plan required that each elementary school in the district maintain 20% to 40% enrollment of African-American students, corresponding to the racial composition of the district. See Barresi v. Browne, 226 Ga. 456, 456-459, 175 S. E. 2d 649, 650-651 (1970). This Court upheld the plan, see McDaniel, 402 U. S., at 41, rejecting the parents' argument that a person may not be included or excluded solely because he is a Negro or because he is white. Brief for Respondents in McDaniel, O. T. 1970, No. 420, p. 25. Federal authorities had claimed—as the NAACP and the OCR did in Seattle—that Clarke County schools were segregated in law, not just in fact. The plurality's claim that Seattle was never segregated by law is simply not accurate. Compare ante, at 29, with supra, at 6-9. The plurality could validly claim that no court ever found that Seattle schools were segregated in law. But that is also true of the Clarke County schools in McDaniel. Unless we believe that the Constitution enforces one legal standard for the South and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel, 402 U. S., at 41 ([S]teps will almost invariably require that students be assigned `differently because of their race.' . . . Any other approach would freeze the status quo that is the very target of all desegregation processes.). This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. In Board of Ed. of City School Dist. of New York v. Harris, 444 U. S. 130, 148-149 (1979), the Court concluded that a federal statute required school districts receiving certain federal funds to remedy faculty segregation, even though in this Court's view the racial disparities in the affected schools were purely de facto and would not have been actionable under the Equal Protection Clause. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. See id., at 152 (opinion of Stewart, J.). See also, e.g., Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 535-536 (1982) ([S]tate courts of California continue to have an obligation under state law to order segregated school districts to use voluntary desegregation techniques, whether or not there has been a finding of intentional segregation. . . . [S]chool districts themselves retain a state-law obligation to take reasonably feasible steps to desegregate, and they remain free to adopt reassignment and busing plans to effectuate desegregation  (emphasis added)); School Comm. of Boston v. Board of Education, 389 U. S. 572 (1968) (per curiam) (dismissing for want of a federal question a challenge to a voluntary statewide integration plan using express racial criteria). Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann. Indeed, in 1968, the Illinois Supreme Court rejected an equal protection challenge to a raceconscious state law seeking to undo de facto segregation: To support [their] claim, the defendants heavily rely on three Federal cases, each of which held, no State law being involved, that a local school board does not have an affirmative constitutional duty to act to alleviate racial imbalance in the schools that it did not cause. However, the question as to whether the constitution requires a local school board, or a State, to act to undo de facto school segregation is simply not here concerned. The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation. State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. Similarly, the Federal courts which have considered the issue . . . have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden. Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 597-598, 237 N. E. 2d 498, 501 (1968) (citations omitted) (citing decisions from the high courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and Sixth Circuits). See also, e.g., Offerman v. Nitkowski, 378 F. 2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. of Ed., 369 F. 2d 55, 61 (CA6 1966), cert. denied, 389 U. S. 847 (1967); Springfield School Comm. v. Barksdale, 348 F. 2d 261, 266 (CA1 1965); Pennsylvania Human Relations Comm'n v. Chester School Dist., 427 Pa. 157, 164, 233 A. 2d 290, 294 (1967); Booker v. Board of Ed. of Plainfield, Union Cty., 45 N. J. 161, 170, 212 A. 2d 1, 5 (1965); Jackson v. Pasadena City School Dist., 59 Cal. 2d 876, 881-882, 382 P. 2d 878, 881-882 (1963) (in bank). I quote the Illinois Supreme Court at length to illustrate the prevailing legal assumption at the time Swann was decided. In this respect, Swann was not a sharp or unexpected departure from prior rulings; it reflected a consensus that had already emerged among state and lower federal courts. If there were doubts before Swann was decided, they did not survive this Court's decision. Numerous state and federal courts explicitly relied upon Swann 's guidance for decades to follow. For instance, a Texas appeals court in 1986 rejected a Fourteenth Amendment challenge to a voluntary integration plan by explaining: [T]he absence of a court order to desegregate does not mean that a school board cannot exceed minimum requirements in order to promote school integration. School authorities are traditionally given broad discretionary powers to formulate and implement educational policy and may properly decide to ensure to their students the value of an integrated school experience. Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 3523-53 (Ct. App. Tex. 1986) (citing Swann and North Carolina Bd. of Ed. ), appeal dism'd for want of a substantial federal question, 484 U. S. 804 (1987). Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City Unified School Dist., 610 F. 2d 661, 662-664 (1979), the Ninth Circuit rejected a federal constitutional challenge to a school district's use of mandatory faculty transfers to ensure that each school's faculty makeup would fall within 10% of the districtwide racial composition. Like the Texas court, the Ninth Circuit relied upon Swann and North Carolina Bd. of Ed. to reject the argument that a race-conscious plan is permissible only when there has been a judicial finding of de jure segregation. 610 F. 2d, at 663-664. See also, e.g., Darville v. Dade County School Bd., 497 F. 2d 1002, 1004-1006 (CA5 1974); State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 128-129, 492 P. 2d 536, 541-542 (1972) (en banc), overruled on other grounds, Cole v. Webster, 103 Wash. 2d 280, 692 P. 2d 799 (1984) (en banc); School Comm. of Springfield v. Board of Ed., 362 Mass. 417, 428-429 287 N. E. 2d 438, 447-448 (1972). These decisions illustrate well how lower courts understood and followed Swann 's enunciation of the relevant legal principle. Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciated- i.e., that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity. See, e.g., 20 U. S. C. §6311(b)(2)(C)(v) (No Child Left Behind Act); §1067 et seq. (authorizing aid to minority institutions). In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. I have counted well over 100 state statutes that similarly employ racial classifications. Presidential administrations for the past half-century have used and supported various race-conscious measures. See, e.g., Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) (President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965) (President Johnson); Sugrue, Breaking Through: The Troubled Origins of Affirmative Action in the Workplace, in Colorlines: Affirmative Action, Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001) (describing President Nixon's lobbying for affirmative action plans, e.g., the Philadelphia Plan); White, Affirmative Action's Alamo: Gerald Ford Returns to Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting on President Ford's support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 50 (2002) (describing President Carter's support for affirmation action). And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See Welch 83-91. That Swann 's legal statement should find such broad acceptance is not surprising. For Swann is predicated upon a well-established legal view of the Fourteenth Amendment. That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases, 16 Wall. 36, 71 (1872) ([N]o one can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race); Strauder v. West Virginia, 100 U. S. 303, 306 (1879) ([The Fourteenth Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy). There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866-1904 (1996) (describing federal funding, through the Freedman's Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862-77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865-1877, pp. 111-116 (1974) (same). Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. See Gratz v. Bollinger, 539 U. S. 244, 301 (2003) (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243 (1995) (STEVENS, J., dissenting). Sometimes Members of this Court have disagreed about the degree of leniency that the Clause affords to programs designed to include. See Wygant v. Jackson Board of Education, 476 U. S. 267, 274 (1986); Fullilove v. Klutznick, 448 U. S. 448, 507 (1980). But I can find no case in which this Court has followed JUSTICE THOMAS' colorblind approach. And I have found no case that otherwise repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races. What does the plurality say in response? First, it seeks to distinguish Swann and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. As McDaniel and Harris show, that is historically untrue. See supra, at 22-24. Many school districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal order , see supra, at 19-20. See also Kennedy Report. Seattle's circumstances are not meaningfully different from those in, say, McDaniel, where this Court approved race-conscious remedies. Louisville's plan was created and initially adopted when a compulsory district court order was in place. And, in any event, the histories of Seattle and Louisville make clear that this distinction—between court-ordered and voluntary desegregation—seeks a line that sensibly cannot be drawn. Second, the plurality downplays the importance of Swann and related cases by frequently describing their relevant statements as dicta. These criticisms, however, miss the main point. Swann did not hide its understanding of the law in a corner of an obscure opinion or in a footnote, unread but by experts. It set forth its view prominently in an important opinion joined by all nine Justices, knowing that it would be read and followed throughout the Nation. The basic problem with the plurality's technical dicta-based response lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic. And statements of a legal rule set forth in a judicial opinion do not always divide neatly into holdings and dicta. (Consider the legal status of Justice Powell's separate opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).) The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance. And if the plurality now chooses to reject that principle, it cannot adequately justify its retreat simply by affixing the label dicta to reasoning with which it disagrees. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied. Third, a more important response is the plurality's claim that later cases—in particular Johnson, Adarand, and Grutter —supplanted Swann. See ante, at 11-12, 31-32, n. 16, 34-35 (citing Adarand, supra, at 227; Johnson v. California, 543 U. S. 499, 505 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003)). The plurality says that cases such as Swann and the others I have described all were decided before this Court definitively determined that `all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny.' Ante, at 31, n. 16 (quoting Adarand, 515 U. S., at 227). This Court in Adarand added that such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. Ibid. And the Court repeated this same statement in Grutter. See 539 U. S., at 326. Several of these cases were significantly more restrictive than Swann in respect to the degree of leniency the Fourteenth Amendment grants to programs designed to include people of all races. See, e.g., Adarand, supra ; Gratz, supra ; Grutter, supra . But that legal circumstance cannot make a critical difference here for two separate reasons. First, no case—not Adarand, Gratz, Grutter, or any other—has ever held that the test of strict scrutiny means that all racial classifications—no matter whether they seek to include or exclude—must in practice be treated the same. The Court did not say in Adarand or in Johnson or in Grutter that it was overturning Swann or its central constitutional principle. Indeed, in its more recent opinions, the Court recognized that the fundamental purpose of strict scrutiny review is to take relevant differences between fundamentally different situations . . . into account. Adarand, supra, at 228 (internal quotation marks omitted). The Court made clear that [s]trict scrutiny does not trea[t] dissimilar race-based decisions as though they were equally objectionable. Ibid. It added that the fact that a law treats [a person] unequally because of his or her race . . . says nothing about the ultimate validity of any particular law. Id., at 229-230 (internal quotation marks omitted). And the Court, using the very phrase that Justice Marshall had used to describe strict scrutiny's application to any exclusionary use of racial criteria, sought to  dispel the notion that strict scrutiny is as likely to condemn inclusive uses of race-conscious criteria as it is to invalidate exclusionary uses. That is, it is not in all circumstances `strict in theory, but fatal in fact.' Id., at 237 (quoting Fullilove v. Klutznick, 448 U. S., at 519 (Marshall, J., concurring in judgment)). The Court in Grutter elaborated: Strict scrutiny is not `strict in theory, but fatal in fact.' . . . Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. . . . Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot, 364 U. S. 339, 343-344 (1960) (admonishing that, `in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts'). . . . Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context. 539 U. S., at 326-327. The Court's holding in Grutter demonstrates that the Court meant what it said, for the Court upheld an elite law school's race-conscious admissions program. The upshot is that the cases to which the plurality refers, though all applying strict scrutiny, do not treat exclusive and inclusive uses the same. Rather, they apply the strict scrutiny test in a manner that is fatal in fact only to racial classifications that harmfully exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include. The plurality cannot avoid this simple fact. See ante, at 34-36. Today's opinion reveals that the plurality would rewrite this Court's prior jurisprudence, at least in practical application, transforming the strict scrutiny test into a rule that is fatal in fact across the board. In doing so, the plurality parts company from this Court's prior cases, and it takes from local government the longstanding legal right to use race-conscious criteria for inclusive purposes in limited ways. Second, as Grutter specified, [c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause. 539 U. S., at 327 (citing Gomillion v. Lightfoot, 364 U. S. 339, 343-344 (1960)). And contexts differ dramatically one from the other. Governmental use of race-based criteria can arise in the context of, for example, census forms, research expenditures for diseases, assignments of police officers patrolling predominantly minority-race neighborhoods, efforts to desegregate racially segregated schools, policies that favor minorities when distributing goods or services in short supply, actions that create majority-minority electoral districts, peremptory strikes that remove potential jurors on the basis of race, and others. Given the significant differences among these contexts, it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them. Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. It is a context, as Swann makes clear, where history has required special administrative remedies. And it is a context in which the school boards' plans simply set race-conscious limits at the outer boundaries of a broad range. This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together. The importance of these differences is clear once one compares the present circumstances with other cases where one or more of these negative features are present. See, e.g., Strauder v. West Virginia, 100 U. S. 303 (1880); Yick Wo v. Hopkins, 118 U. S. 356 (1886); Brown, 347 U. S. 483; Loving v. Virginia, 388 U. S. 1 (1967); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978); Batson v. Kentucky, 476 U. S. 79 (1986); Richmond v. J. A. Croson Co., 488 U. S. 469 (1989); Shaw v. Reno, 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995); Grutter, supra ; Gratz v. Bollinger, 539 U. S. 244 (2003); Johnson v. California, 543 U. S. 499 (2005). If one examines the context more specifically, one finds that the districts' plans reflect efforts to overcome a history of segregation, embody the results of broad experience and community consultation, seek to expand student choice while reducing the need for mandatory busing, and use race-conscious criteria in highly limited ways that diminish the use of race compared to preceding integration efforts. Compare Wessmann v. Gittens, 160 F. 3d 790, 809-810 (CA1 1998) (Boudin, J., concurring), with Comfort, 418 F. 3d, at 28-29 (Boudin, C. J., concurring). They do not seek to award a scarce commodity on the basis of merit, for they are not magnet schools; rather, by design and in practice, they offer substantially equivalent academic programs and electives. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. In 2000, for example, Roosevelt was the most popular first choice high school in Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one of the least popular; by 2003, it was one of the more popular. See Research, Evaluation and Assessment, Student Information Services Office, District Summaries 1999-2005, available at http://www.seattleschools.org/area/siso/disprof/2005/DP05 all.pdf. In a word, the school plans under review do not involve the kind of race-based harm that has led this Court, in other contexts, to find the use of race-conscious criteria unconstitutional. These and related considerations convinced one Ninth Circuit judge in the Seattle case to apply a standard of constitutionality review that is less than strict, and to conclude that this Court's precedents do not require the contrary. See 426 F. 3d 1162, 1193-1194 (2005) (Kozinski, J., concurring) (That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability). That judge is not alone. Cf. Gratz, supra, at 301 (GINSBURG, J., dissenting); Adarand, supra, at 243 (STEVENS, J., dissenting); Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988). The view that a more lenient standard than strict scrutiny should apply in the present context would not imply abandonment of judicial efforts carefully to determine the need for race-conscious criteria and the criteria's tailoring in light of the need. And the present context requires a court to examine carefully the race-conscious program at issue. In doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that JUSTICE THOMAS and JUSTICE KENNEDY mention. See ante, at 11-12 (THOMAS, J., concurring); ante, at 3, 17 (opinion of KENNEDY, J.). But unlike the plurality, such a judge would also be aware that a legislature or school administrators, ultimately accountable to the electorate, could nonetheless properly conclude that a racial classification sometimes serves a purpose important enough to overcome the risks they mention, for example, helping to end racial isolation or to achieve a diverse student body in public schools. Cf. ante, at 17-18 (opinion of KENNEDY, J.). Where that is so, the judge would carefully examine the program's details to determine whether the use of race-conscious criteria is proportionate to the important ends it serves. In my view, this contextual approach to scrutiny is altogether fitting. I believe that the law requires application here of a standard of review that is not strict in the traditional sense of that word, although it does require the careful review I have just described. See Gratz, supra, at 301 (GINSBURG, J., joined by SOUTER, J., dissenting); Adarand, supra, at 242-249 (STEVENS, J., joined by GINSBURG, J., dissenting); 426 F. 3d, at 1193-1194 (Kozinski, J., concurring). Apparently JUSTICE KENNEDY also agrees that strict scrutiny would not apply in respect to certain race-conscious school board policies. See ante, at 9 (Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races). Nonetheless, in light of Grutter and other precedents, see, e.g., Bakke, 438 U. S., at 290 (opinion of Powell, J.), I shall adopt the first alternative. I shall apply the version of strict scrutiny that those cases embody. I shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a compelling governmental interest and, if so, whether the plans are narrowly tailored to achieve that interest. If the plans survive this strict review, they would survive less exacting review a fortiori. Hence, I conclude that the plans before us pass both parts of the strict scrutiny test. Consequently I must conclude that the plans here are permitted under the Constitution.",The Legal Standard
+23,145702,1,3,"The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial diversity. Other times a court, like the plurality here, refers to it as an interest in racial balancing. I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial integration of public schools. By this term, I mean the school districts' interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the district's schools and each individual student's public school experience. Regardless of its name, however, the interest at stake possesses three essential elements. First, there is a historical and remedial element: an interest in setting rightthe consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. It is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America's public schools. See Part I, supra, at 4; Appendix A, infra. See also ante, at 17 (opinion of KENNEDY, J.) (This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children). Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools. Cf. Grutter, 539 U. S. , at 345 (GINSBURG, J., concurring). Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains. See, e.g., Powell, Living and Learning: Linking Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001) (hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733, 741-742 (1998) (hereinafter Hallinan). Other studies reach different conclusions. See, e.g., D. Armor, Forced Justice (1995). See also ante, at 15-17 (THOMAS, J., concurring). But the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one. Research suggests, for example, that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting. Indeed in Louisville itself the achievement gap between black and white elementary school students grew substantially smaller (by seven percentage points) after the integration plan was implemented in 1975. See Powell 35. Conversely, to take another example, evidence from a district in Norfolk, Virginia, shows that resegregated schools led to a decline in the achievement test scores of children of all races. Ibid. One commentator, reviewing dozens of studies of the educational benefits of desegregated schooling, found that the studies have provided remarkably consistent results, showing that: (1) black students' educational achievement is improved in integrated schools as compared to racially isolated schools, (2) black students' educational achievement is improved in integrated classes, and (3) the earlier that black students are removed from racial isolation, the better their educational outcomes. See Hallinan 741-742. Multiple studies also indicate that black alumni of integrated schools are more likely to move into occupations traditionally closed to African-Americans, and to earn more money in those fields. See, e.g., Schofield, Review of Research on School Desegregation's Impact on Elementary and Secondary School Students, in Handbook of Research on Multicultural Education 597, 606-607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D. Bok, The Shape of the River 118 (1998) (hereinafter Bowen & Bok). Third, there is a democratic element: an interest in producing an educational environment that reflects the pluralistic society in which our children will live. Swann, 402 U. S., at 16. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation. Again, data support this insight. See, e.g., Hallinan 745; Quillian & Campbell, Beyond Black and White: The Present and Future of Multiracial Friendship Segregation, 68 Am. Sociological Rev. 540, 541 (2003) (hereinafter Quillian & Campbell); Dawkins & Braddock, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. Negro Ed. 394, 401-403 (1994) (hereinafter Dawkins & Braddock); Wells & Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 Rev. Educational Research 531, 550 (1994) (hereinafter Wells & Crain). There are again studies that offer contrary conclusions. See, e.g., Schofield, School Desegregation and Intergroup Relations, in 17 Review of Research in Education 356 (G. Grant ed. 1991). See also ante, at 22-23 (THOMAS, J., concurring). Again, however, the evidence supporting a democratic interest in racially integrated schools is firmly established and sufficiently strong to permit a school board to determine, as this Court has itself often found, that this interest is compelling. For example, one study documented that black and white students in desegregated schools are less racially prejudiced than those in segregated schools, and that interracial contact in desegregated schools leads to an increase in interracial sociability and friendship. Hallinan 745. See also Quillian & Campbell 541. Cf. Bowen & Bok 155. Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Dawkins & Braddock 401-403; Wells & Crain 550. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and neighborhoods that tend to become less racially segregated. Dawkins & Braddock 403. These effects not only reinforce the prior gains of integrated primary and secondary education; they also foresee a time when there is less need to use race-conscious criteria. Moreover, this Court from Swann to Grutter has treated these civic effects as an important virtue of racially diverse education. See, e.g., Swann, supra, at 16; Seattle School Dist. No. 1, 458 U. S., at 472-473. In Grutter, in the context of law school admissions, we found that these types of interests were, constitutionally speaking, compelling. See 539 U. S., at 330 (recognizing that Michigan Law School's race-conscious admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races, and pointing out that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints (internal quotation marks omitted; alteration in original)). In light of this Court's conclusions in Grutter, the compelling nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation's children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, unless our children begin to learn together, there is little hope that our people will ever learn to live together. Milliken v. Bradley, 418 U. S. 717, 783 (1974) (dissenting opinion). And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter, 339 U. S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, p. x (1975) (arguing that perhaps no other Supreme Court case has affected more directly the minds, hearts, and daily lives of so many Americans); Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown as the most eagerly awaited and dramatic judicial decision of modern times). See also Parents Involved VII, 426 F. 3d, at 1194 (Kozinski, J., concurring); Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 937 (1989) (calling Brown the Supreme Court's greatest anti-discrimination decision); Brief for United States as Amicus Curiae in Brown, 347 U. S. 483; Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004); A Great Decision, Hindustan Times (New Dehli, May 20, 1954), p. 5; USA Takes Positive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown is an acknowledgment that the United States should set an example for all other nations by taking the lead in removing from its national life all signs and traces of racial intolerance, arrogance or discrimination). Hence, I am not surprised that JUSTICE KENNEDY finds that, a district may consider it a compelling interest to achieve a diverse student population, including a racially diverse population. Ante, at 17-18. The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general societal discrimination, ante, at 23 (plurality opinion), but of primary and secondary school segregation, see supra, at 7, 14; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If an educational interest that combines these three elements is not compelling, what is? The majority acknowledges that in prior cases this Court has recognized at least two interests as compelling: an interest in remedying the effects of past intentional discrimination, and an interest in diversity in higher education. Ante, at 12, 13. But the plurality does not convincingly explain why those interests do not constitute a compelling interest here. How do the remedial interests here differ in kind from those at issue in the voluntary desegregation efforts that Attorney General Kennedy many years ago described in his letter to the President? Supra, at 19-20. How do the educational and civic interests differ in kind from those that underlie and justify the racial diversity that the law school sought in Grutter, where this Court found a compelling interest? The plurality tries to draw a distinction by reference to the well-established conceptual difference between de jure segregation (segregation by state action) and de facto segregation (racial imbalance caused by other factors). Ante, at 28. But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. Compare, e.g., Green, 391 U. S., at 437-438 (School boards . . . operating state-compelled dual systems have an affirmative duty to take whatever steps might be necessary to convert to a unitary system inw hich racial discrimination would be eliminated root and branch), with, e.g., Milliken, 418 U. S., at 745 (the Constitution does not impose a duty to desegregate upon districts that have not been shown to have committed any constitutional violation). The opinions cited by the plurality to justify its reliance upon the de jure/de facto distinction only address what remedial measures a school district may be constitutionally required to undertake. See, e.g., Freeman v. Pitts, 503 U. S. 467, 495 (1992). As to what is permitted, nothing in our equal protection law suggests that a State may right only those wrongs that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. That is what is at issue here. And Swann, McDaniel, Crawford, North Carolina Bd. of Ed., Harris, and Bustop made one thing clear: significant as the difference between de jure and de facto segregation may be to the question of what a school district must do, that distinction is not germane to the question of what a school district may do. Nor does any precedent indicate, as the plurality suggests with respect to Louisville, ante, at 29, that remedial interests vanish the day after a federal court declares that a district is unitary. Of course, Louisville adopted those portions of the plan at issue here before a court declared Louisville unitary. Moreover, in Freeman, this Court pointed out that in one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist. 503 U. S., at 495. See also ante, at 15 (opinion of KENNEDY, J.). I do not understand why this Court's cases, which rest the significance of a unitary finding in part upon the wisdom and desirability of returning schools to local control, should deprive those local officials of legal permission to use means they once found necessary to combat persisting injustices. For his part, JUSTICE THOMAS faults my citation of various studies supporting the view that school districts can find compelling educational and civic interests in integrating their public schools. See ante, at 15-17, 23 (concurring opinion). He is entitled of course to his own opinion as to which studies he finds convincing—although it bears mention that even the author of some of JUSTICE THOMAS' preferred studies has found some evidence linking integrated learning environments to increased academic achievement. Cf. ante, at 15-17 (opinion of THOMAS, J.) (citing Armor & Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002); Brief for Armor et al. as Amici Curiae, with Rosen, Perhaps Not All Affirmative Action is Created Equal, N. Y. Times, June 11, 2006 (quoting David Armor as commenting `[w]e did find the [racial] achievement gap changing significantly ' and acknowledging that he `did find a modest association for math but not reading in terms of racial composition and achievement, but there's a big state variation' (emphasis added)). If we are to insist upon unanimity in the social science literature before finding a compelling interest, we might never find one. I believe only that the Constitution allows democratically elected school boards to make up their own minds as to how best to include people of all races in one America. B. Narrow Tailoring I next ask whether the plans before us are narrowly tailored to achieve these compelling objectives. I shall not accept the school board's assurances on faith, cf. Miller v. Johnson, 515 U. S. 900, 920 (1995), and I shall subject the tailoring of their plans to rigorous judicial review. Grutter, 539 U. S., at 388 (KENNEDY, J., dissenting). Several factors, taken together, nonetheless lead me to conclude that the boards' use of race-conscious criteria in these plans passes even the strictest tailoring test. First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. Cf. id., at 390 (KENNEDY, J., dissenting) (expressing concern about narrow fluctuation band[s]). They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden quota. See id., at 335 (Properly understood, a `quota' is a program in which a certain fixed number or proportion of opportunities are `reserved exclusively for certain minority groups' (quoting Croson, 488 U. S., at 496)). In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80% of all cases, that choice alone determines which high schools Seattle's ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria). Choice, therefore, is the predominant factor in these plans. Race is not. See Grutter, supra, at 393 (KENNEDY, J., dissenting) (allowing consideration of race only if it does not become a predominant factor). Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. In these respects, the broad ranges are less like a quota and more like the kinds of useful starting points that this Court has consistently found permissible, even when they set boundaries upon voluntary transfers, and even when they are based upon a community's general population. See, e.g., North Carolina Bd. of Ed. v. Swann, 402 U. S. 43, 46 (1971) (no absolute prohibition against [the] use of mathematical ratios as a starting point); Swann, 402 U. S., at 24-25 (approving the use of a ratio reflecting the racial composition of the whole school system as a useful starting point, but not as an inflexible requirement). Cf. United States v. Montgomery County Bd. of Ed., 395 U. S. 225, 232 (1969) (approving a lower court desegregation order that provided that the [school] board must move toward a goal under which `in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system,' and immediately requiring [t]he ratio of Negro to white teachers in each school to be equal to the ratio of Negro to white teachers in . . . the system as a whole). Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, see Grutter, supra, at 341, than other race-conscious restrictions this Court has previously approved. See, e.g., Swann, supra, at 26-27; Montgomery Co. Bd. of Ed., supra, at 232. Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter. Here, race becomes a factor only in a fraction of students' non-merit-based assignments—not in large numbers of students' merit-based applications. Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter. Disappointed students are not rejected from a State's flagship graduate program; they simply attend a different one of the district's many public schools, which in aspiration and in fact are substantially equal. Cf. Wygant, 476 U. S., at 283. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One will search Grutter in vain for similarly persuasive evidence of narrow tailoring as the school districts have presented here. Third, the manner in which the school boards developed these plans itself reflects narrow tailoring. Each plan was devised to overcome a history of segregated public schools. Each plan embodies the results of local experience and community consultation. Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing. And each plan's use of race-conscious elements is diminished compared to the use of race in preceding integration plans. The school boards' widespread consultation, their experimentation with numerous other plans, indeed, the 40-year history that Part I sets forth, make clear that plans that are less explicitly race-based are unlikely to achieve the board's compelling objectives. The history of each school system reveals highly segregated schools, followed by remedial plans that involved forced busing, followed by efforts to attract or retain students through the use of plans that abandoned busing and replaced it with greater student choice. Both cities once tried to achieve more integrated schools by relying solely upon measures such as redrawn district boundaries, new school building construction, and unrestricted voluntary transfers. In neither city did these prior attempts prove sufficient to achieve the city's integration goals. See Parts I—A and I—B, supra, at 6-18 . Moreover, giving some degree of weight to a local school board's knowledge, expertise, and concerns in these particular matters is not inconsistent with rigorous judicial scrutiny. It simply recognizes that judges are not well suited to act as school administrators. Indeed, in the context of school desegregation, this Court has repeatedly stressed the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils. See Milliken, 418 U. S., at 741-42 (No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process). See also San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 49-50 (1973) (extolling local control for the opportunity it offers for participation in the decisionmaking process that determines how . . . local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence); Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities); Brown v. Board of Education, 349 U. S. 294, 299 (1955) (Brown II) (Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles). Experience in Seattle and Louisville is consistent with experience elsewhere. In 1987, the U. S. Commission on Civil Rights studied 125 large school districts seeking integration. It reported that most districts-92 of them, in fact—adopted desegregation policies that combined two or more highly race-conscious strategies, for example, rezoning or pairing. See Welch 83-91. Having looked at dozens of amicus briefs, public reports, news stories, and the records in many of this Court's prior cases, which together span 50 years of desegregation history in school districts across the Nation, I have discovered many examples of districts that sought integration through explicitly race-conscious methods, including mandatory busing. Yet, I have found no example or model that would permit this Court to say to Seattle and to Louisville: Here is an instance of a desegregation plan that is likely to achieve your objectives and also makes less use of race-conscious criteria than your plans. And, if the plurality cannot suggest such a model—and it cannot—then it seeks to impose a narrow tailoring requirement that in practice would never be met. Indeed, if there is no such plan, or if such plans are purely imagined, it is understandable why, as the plurality notes, ante, at 27, Seattle school officials concentrated on diminishing the racial component of their districts' plan, but did not pursue eliminating that element entirely. For the plurality now to insist as it does, ante, at 27-28, that these school districts ought to have said so officially is either to ask for the superfluous (if they need only make explicit what is implicit) or to demand the impossible (if they must somehow provide more proof that there is no hypothetical other plan that could work as well as theirs). I am not aware of any case in which this Court has read the narrow tailoring test to impose such a requirement. Cf. People Who Care v. Rockford Bd. of Ed. School Dist. No. 205, 961 F. 2d 1335, 1338 (CA7 1992) (Easterbrook, J.) (Would it be necessary to adjudicate the obvious before adopting (or permitting the parties to agree on) a remedy . . . ?). The plurality also points to the school districts' use of numerical goals based upon the racial breakdown of the general school population, and it faults the districts for failing to prove that no other set of numbers will work. See ante, at 18-20. The plurality refers to no case in support of its demand. Nor is it likely to find such a case. After all, this Court has in many cases explicitly permitted districts to use target ratios based upon the district's underlying population. See, e.g., Swann, 402 U. S., at 24-25; North Carolina Bd. of Ed., 402 U. S., at 46; Montgomery County Bd. of Ed., 395 U. S., at 232. The reason is obvious: In Seattle, where the overall student population is 41% white, permitting 85% white enrollment at a single school would make it much more likely that other schools would have very few white students, whereas in Jefferson County, with a 60% white enrollment, one school with 85% white students would be less likely to skew enrollments elsewhere. Moreover, there is research-based evidence supporting, for example, that a ratio no greater than 50% minority— which is Louisville's starting point, and as close as feasible to Seattle's starting point—is helpful in limiting the risk of white flight. See Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 121, 125. Federal law also assumes that a similar target percentage will help avoid detrimental minority group isolation. See No Child Left Behind Act of 2001, Title V, Part C, 115 Stat. 1806, 20 U. S. C. §7231 et seq. (2000 ed., Supp. IV); 34 CFR §§280.2, 280.4 (2006) (implementing regulations). What other numbers are the boards to use as a starting point? Are they to spend days, weeks, or months seeking independently to validate the use of ratios that this Court has repeatedly authorized in prior cases? Are they to draw numbers out of thin air? These districts have followed this Court's holdings and advice in tailoring their plans. That, too, strongly supports the lawfulness of their methods. Nor could the school districts have accomplished their desired aims ( e.g., avoiding forced busing, countering white flight, maintaining racial diversity) by other means. Nothing in the extensive history of desegregation efforts over the past 50 years gives the districts, or this Court, any reason to believe that another method is possible to accomplish these goals. Nevertheless, JUSTICE KENNEDY suggests that school boards: may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. Ante, at 8. But, as to strategic site selection, Seattle has built one new high school in the last 44 years (and that specialized school serves only 300 students). In fact, six of the Seattle high schools involved in this case were built by the 1920's; the other four were open by the early 1960's. See generally N. Thompson & C. Marr, Building for Learning: Seattle Public Schools Histories, 1862-2000 (2002). As to drawing neighborhood attendance zones on a racial basis, Louisville tried it, and it worked only when forced busing was also part of the plan. See supra, at 12-14. As to allocating resources for special programs, Seattle and Louisville have both experimented with this; indeed, these programs are often referred to as magnet schools, but the limited desegregation effect of these efforts extends at most to those few schools to which additional resources are granted. In addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. See Brief for Respondents in No. 05-908, p. 42. As to recruiting faculty on the basis of race, both cities have tried, but only as one part of a broader program. As to tracking enrollments, performance and other statistics by race, tracking reveals the problem; it does not cure it. JUSTICE KENNEDY sets forth two additional concerns related to narrow tailoring. In respect to Louisville, he says first that officials stated (1) that kindergarten assignments are not subject to the race-conscious guidelines, and (2) that the child at issue here was denied permission to attend the kindergarten he wanted because of those guidelines. Both, he explains, cannot be true. He adds that this confusion illustrates that Louisville's assignment plan (or its explanation of it to this Court) is insufficiently precise in respect to who makes the decisions, over-sight, the precise circumstances in which an assignment decision will be made; and which of two similarly situated children will be subjected to a given race-based decision. Ante, at 4. The record suggests, however, that the child in question was not assigned to the school he preferred because he missed the kindergarten application deadline. See App. in 05-915, p. 20. After he had enrolled and after the academic year had begun, he then applied to transfer to his preferred school after the kindergarten assignment dead-line had passed, id., at 21, possibly causing school officials to treat his late request as an application to transfer to the first grade, in respect to which the guidelines apply. I am not certain just how the remainder of JUSTICE KENNEDY's concerns affect the lawfulness of the Louisville program, for they seem to be failures of explanation, not of administration. But Louisville should be able to answer the relevant questions on remand. JUSTICE KENNEDY's second concern is directly related to the merits of Seattle's plan: Why does Seattle's plan group Asian-Americans, Hispanic-Americans, Native-Americans, and African-Americans together, treating all as similar minorities? Ante, at 6-7. The majority suggests that Seattle's classification system could permit a school to be labeled diverse with a 50% Asian-American and 50% white student body, and no African-American students, Hispanic students, or students of other ethnicity. Ante, at 6; ante, at 15-16 (opinion of the Court). The 50/50 hypothetical has no support in the record here; it is conjured from the imagination. In fact, Seattle apparently began to treat these different minority groups alike in response to the federal Emergency School Aid Act's requirement that it do so. Siqueland 116-117. See also Hanawalt 31; Pub. L. 95-561, Tit. VI (1978) (prescribing percentage enrollment requirements for minority students); Siqueland 55 (discussing HEW definition of minority). Moreover, maintaining this federally mandated system of classification makes sense insofar as Seattle's experience indicates that the relevant circumstances in respect to each of these different minority groups are roughly similar, e.g., in terms of residential patterns, and call for roughly similar responses. This is confirmed by the fact that Seattle has been able to achieve a desirable degree of diversity without the greater emphasis on race that drawing fine lines among minority groups would require. Does the plurality's view of the Equal Protection Clause mean that courts must give no weight to such a board determination? Does it insist upon especially strong evidence supporting inclusion of multiple minority groups in an otherwise lawful government minority-ssistance program? If so, its interpretation threatens to produce divisiveness among minority groups that is incompatible with the basic objectives of the Fourteenth Amendment. Regardless, the plurality cannot object that the constitutional defect is the individualized use of race and simultaneously object that not enough account of individuals' race has been taken. Finally, I recognize that the Court seeks to distinguish Grutter from these cases by claiming that Grutter arose in `the context of higher education.' Ante, at 16. But that is not a meaningful legal distinction. I have explained why I do not believe the Constitution could possibly find compelling the provision of a racially diverse education for a 23-year-old law student but not for a 13-year-old high school pupil. See supra, at 46-48. And I have explained how the plans before us are more narrowly tailored than those in Grutter. See supra, at 45. I add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications individual[ly]. See ante, at 13-15. The context here does not involve admission by merit; a child's academic, artistic, and athletic merits are not at all relevant to the child's placement. These are not affirmative action plans, and hence individualized scrutiny is simply beside the point. The upshot is that these plans' specific features—(1) their limited and historically-diminishing use of race, (2) their strong reliance upon other non-race-conscious elements, (3) their history and the manner in which the districts developed and modified their approach, (4) the comparison with prior plans, and (5) the lack of reasonably evident alternatives—together show that the districts' plans are narrowly tailored to achieve their compelling goals. In sum, the districts' race-conscious plans satisfy strict scrutiny and are therefore lawful.",Applying the Legal Standard.A.Compelling Interest
+24,145702,1,4,"Two additional precedents more directly related to the plans here at issue reinforce my conclusion. The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was overwhelming evidence of the Board's good faith compliance with the desegregation Decree and its underlying purposes, indeed that the Board had treated the ideal of an integrated system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education. Hampton II, 102 F. Supp. 2d, at 370. When the court made this determination in 2000, it did so in the context of the Louisville desegregation plan that the board had adopted in 1996. That plan, which took effect before 1996, is the very plan that in all relevant respects is in effect now and is the subject of the present challenge. No one claims that (the relevant portion of) Louisville's plan was unlawful in 1996 when Louisville adopted it. To the contrary, there is every reason to believe that it represented part of an effort to implement the 1978 desegregation order. But if the plan was lawful when it was first adopted and if it was lawful the day before the District Court dissolved its order, how can the plurality now suggest that it became unlawful the following day? Is it conceivable that the Constitution, implemented through a court desegregation order, could permit (perhaps require ) the district to make use of a race-conscious plan the day before the order was dissolved and then forbid the district to use the identical plan the day after? See id., at 380 (The very analysis for dissolving desegregation decrees supports continued maintenance of a desegregated system as a compelling state interest). The Equal Protection Clause is not incoherent. And federal courts would rightly hesitate to find unitary status if the consequences of the ruling were so dramatically disruptive. Second, Seattle School Dist. No. 1, 458 U. S. 457, is directly on point. That case involves the original Seattle Plan, a more heavily race-conscious predecessor of the very plan now before us. In Seattle School Dist. No. 1, this Court struck down a state referendum that effectively barred implementation of Seattle's desegregation plan and burden[ed] all future attempts to integrate Washington schools in districts throughout the State. Id., at 462-463, 483. Because the referendum would have prohibited the adoption of a school-integration plan that involved mandatory busing, and because it would have imposed a special burden on school integration plans (plans that sought to integrate previously segregated schools), the Court found it unconstitutional. Id., at 483-487. In reaching this conclusion, the Court did not directly address the constitutional merits of the underlying Seattle plan. But it explicitly cited Swann 's statement that the Constitution permitted a local district to adopt such a plan. 458 U. S., at 472, n. 15. It also cited to Justice Powell's opinion in Bakke, approving of the limited use of race-conscious criteria in a university-admissions affirmative action case. 458 U. S., at 472, n. 15 . In addition, the Court stated that [a]ttending an ethnically diverse school, id., at 473, could help prepare minority children for citizenship in our pluralistic society, hope-fully teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage. Ibid. (internal quotation marks and citation omitted). It is difficult to believe that the Court that held unconstitutional a referendum that would have interfered with the implementation of this plan thought that the integration plan it sought to preserve was itself an unconstitutional plan. And if Seattle School Dist. No. 1 is premised upon the constitutionality of the original Seattle Plan, it is equally premised upon the constitutionality of the present plan, for the present plan is the Seattle Plan, modified only insofar as it places even less emphasis on race-conscious elements than its predecessors. It is even more difficult to accept the plurality's contrary view, namely that the underlying plan was unconstitutional. If that is so, then all of Seattle's earlier (even more race-conscious) plans must also have been unconstitutional. That necessary implication of the plurality's position strikes the 13th chime of the clock. How could the plurality adopt a constitutional standard that would hold unconstitutional large numbers of race-conscious integration plans adopted by numerous school boards over the past 50 years while remaining true to this Court's desegregation precedent?",Direct Precedent
+25,145702,1,5,"The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality's approach, as measured against the Constitution's objectives. To do so provides further reason to believe that the plurality's approach is legally unsound. For one thing, consider the effect of the plurality's views on the parties before us and on similar school districts throughout the Nation. Will Louisville and all similar school districts have to return to systems like Louisville's initial 1956 plan, which did not consider race at all? See supra, at 12. That initial 1956 plan proved ineffective. Sixteen years into the plan, 14 of 19 middle and high schools remained almost totally white or almost totally black. Ibid. The districts' past and current plans are not unique. They resemble other plans, promulgated by hundreds of local school boards, which have attempted a variety of desegregation methods that have evolved over time in light of experience. A 1987 Civil Rights Commission Study of 125 school districts in the Nation demonstrated the breadth and variety of desegregation plans: The [study] documents almost 300 desegregation plans that were implemented between 1961 and 1985. The degree of heterogeneity within these districts is immediately apparent. They are located in every region of the country and range in size from Las Cruces, New Mexico, with barely over 15,000 students attending 23 schools in 1968, to New York City, with more than one million students in 853 schools. The sample includes districts in urban areas of all sizes, suburbs ( e.g., Arlington County, Virginia) and rural areas ( e.g., Jefferson Parish, Louisiana, and Raleigh County, West Virginia). It contains 34 countywide districts with central cities (the 11 Florida districts fit this description, plus Clark County, Nevada and others) and a small number of consolidated districts (New Castle County, Delaware and Jefferson County, Kentucky). The districts also vary in their racial compositions and levels of segregation. Initial plans were implemented in Mobile, Alabama and Mecklenburg County, North Carolina, and in a number of other southern districts in the face of total racial segregation. At the other extreme, Santa Clara, California had a relatively even racial distribution prior to its 1979 desegregation plan. When the 1965 plan was designed for Harford County, Maryland, the district was 92 percent white. Compton, California, on the other hand, became over 99 percent black in the 1980s, while Buffalo, New York had a virtual 50-50 split between white and minority students prior to its 1977 plan. It is not surprising to find a large number of different desegregation strategies in a sample with this much variation. Welch 23 (footnotes omitted). A majority of these desegregation techniques explicitly considered a student's race. See id., at 24-28. Transfer plans, for example, allowed students to shift from a school in which they were in the racial majority to a school in which they would be in a racial minority. Some districts, such as Richmond, California, and Buffalo, New York, permitted only one-way transfers, in which only black students attending predominantly black schools were permitted to transfer to designated receiver schools. Id., at 25. Fifty-three of the 125 studied districts used transfers as a component of their plans. Id., at 83-91. At the state level, 46 States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. Eight of those States condition approval of transfers to another school or district on whether the transfer will produce increased racial integration. Eleven other States require local boards to deny transfers that are not in compliance with the local school board's desegregation plans. See Education Commission of the States, Open Enrollment: 50-State Report (2007), online at http://mb2.ecs.org/reports/Report.aspx?id=268. Arkansas, for example, provides by statute that [n]o student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's resident district. Ark. Code Ann. §6-18-206(f)(1), as amended 2007 Ark. Gen. Acts 552 (2007). An Ohio statute provides, in respect to student choice, that each school district must establish [p]rocedures to ensure that an appropriate racial balance is maintained in the district schools. Ohio Rev. Code Ann. §3313.98(B)(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that a district may object to the enrollment of a native student in an adjacent or other district in order to maintain an appropriate racial balance. §3313.98 (F)(1)(a). A Connecticut statute states that its student choice program will seek to preserve racial and ethnic balance. Conn. Gen. Stat. §10-266aa(b)(2) (2007). Connecticut law requires each school district to submit racial group population figures to the State Board of Education. §10-226a. Another Connecticut regulation provides that [a]ny school in which the Proportion for the School falls outside of a range from 25 percentage points less to 25 percentage points more than the Comparable Proportion for the School District, shall be determined to be racially imbalanced. Conn. Agencies Regs. §10-226e-3(b) (1999). A racial imbalance determination requires the district to submit a plan to correct the racial imbalance, which plan may include mandatory pupil reassignment. §§10-226e-5(a) and (c)(4). Interpreting that State's Constitution, the Connecticut Supreme Court has held legally inadequate the reliance by a local school district solely upon some of the techniques JUSTICE KENNEDY today recommends ( e.g., reallocating resources, etc.). See Sheff v. O'Neill, 238 Conn. 1, 678 A. 2d 1267 (1996). The State Supreme Court wrote: Despite the initiatives undertaken by the defendants to alleviate the severe racial and ethnic disparities among school districts, and despite the fact that the defendants did not intend to create or maintain these disparities, the disparities that continue to burden the education of the plaintiffs infringe upon their fundamental state constitutional right to a substantially equal educational opportunity. Id., at 42, 678 A. 2d, at 1289. At a minimum, the plurality's views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. See supra, at 27. In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm. The wide variety of different integration plans that school districts use throughout the Nation suggests that the problem of racial segregation in schools, including de facto segregation, is difficult to solve. The fact that many such plans have used explicitly racial criteria suggests that such criteria have an important, sometimes necessary, role to play. The fact that the controlling opinion would make a school district's use of such criteria often unlawful (and the plurality's colorblind view would make such use always unlawful) suggests that today's opinion will require setting aside the laws of several States and many local communities. As I have pointed out, supra, at 4, de facto resegregation is on the rise. See Appendix A, infra. It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. See supra, at 37-45. Given the conditions in which school boards work to set policy, see supra, at 20-21, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges. I use the words may need here deliberately. The plurality, or at least those who follow JUSTICE THOMAS' `color-blind' approach, see ante, at 26-27 (THOMAS, J., concurring); Grutter, 539 U. S., at 353-354 (THOMAS, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. See ante, at 40-41 (plurality opinion); see also ante, at 26 (THOMAS, J., concurring). By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation's children and how best to administer America's schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality's slogan, whether the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Ante, at 40-41. See also Parents Involved VII, 426 F. 3d, at 1222 (Bea, J., dissenting) (The way to end racial discrimination is to stop discriminating by race). That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria. Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of race-conscious criteria from among their available options. See Adarand Constructors, Inc., 515 U. S., at 237 ([S]trict scrutiny in this context is [not] `strict in theory, but fatal in fact'  (quoting Fullilove, 448 U. S., at 519 (Marshall, J., concurring in judgment))). Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America's efforts to create, out of its diversity, one Nation.",Consequences
+26,86366,1,1,"62 1. Its intrinsic defect. Phipps, Haile, and Gibson grant, 'in right of their wives,' but these wives are not parties to the deed. It is true, their signatures are affixed, but their names are not in the body of the deed. Now, it is rather trite learning to say, and to say here, that there must be a grantor, a grantee, and a thing granted, to every deed that grants land; that a grantor is as necessary as a grantee or thing granted; or that there is a place in a deed for the name of the party who grants, and that this place is not the bottom of the deed. This is a good conveyance of the life estates of Phipps, Haile, and Gibson; the two former being dead, and their wives never having been made parties to it by apt words, are not bound by it. 63 A deed of land, executed by husband and wife, but containing no words of grant by the wife, does not convey her estate in the land, nor her right of dower. 3 Mason's C. C. R. 347. 64 Where there are no grantors, there is no remedy even in equity 10 Ohio R. 305. 65 A deed is invalid, though the feme covert be named in the premises, and her signature be affixed, if not named elsewhere. 7 Ohio R. 195. 66 2. The deed was properly rejected, because of the defective certificate of examination and acknowledgment. 67 The statute of Mississippi is as follows (Howard and Hutchinson, 347):—— 68 'No estate of a feme covert in any lands, tenements, or hereditaments, lying and being in this State, shall hereafter pass by her deed or conveyance, without a previous acknowledgment made by her, on a private examination , apart from her husband, before a judge, &c., that she signed, sealed, and delivered the same as her voluntary act and deed, freely , without any fear, threats, or compulsion of her husband, and a certificate thereof written on or under said deed or conveyance, and signed by the judge or justice before whom it was made; and every deed or conveyance so executed and acknowledged by a feme covert and certified as aforesaid shall release and bar her right of dower in the lands, tenements, and hereditaments mentioned in such deed or conveyance.' 69 It does not appear from the certificate in this case, that the acknowledgment of the married women was taken on a private examination, which is required by the statute. 70 In the first sentence of the certificate, the husbands and their wives all appear and act together; in the second, the wives all appear and act together. For it is stated,—'And Martha Phipps, Sarah Gibson, and Mary Haile, wives of William M. Phipps, William R. Haile, and David H. Gibson, having been examined, separate and apart from their husbands, and acknowledged that they signed,' &c. If grammatical construction require the insertion of the word 'having' before the word 'acknowledged,' it is questionable whether there be any affirmative statement of the acknowledgment at all. If the word 'separate,' which is not in the statute, and imparts no vigor to its phraseology, be stricken out, the certificate will be,—'And Martha Phipps, Sarah Gibson, and Mary Haile, wives, &c., having been examined apart from their husbands,' &c. It is in vain to call this an 'acknowledgment made by her (them) on a private examination'; for it eviscerates the very vitals of the statute. The examination may have been not only apart and separate from their husbands, but private, or, in the language of Coke, solely and secretly , and yet the acknowledgment may have been made not only in the presence of the relatives, friends, and dependents of their husbands, but in that of the husbands themselves. The interpolation of the word 'separate' imparts no strength to 'apart,' nor are they, separate and apart, or united, equivalent to private; separate having reference to the position of husband and wife, while private indicates the position of the magistrate and the wife in reference to the whole world besides. The two houses of Congress are separate and apart, but not very private; the chief-justice and his associates are separate and apart, yet together constitute one public bench. The examination of married women, separate and apart from their husbands, though in the company of each other, would not be regarded as a compliance with the statute; yet it is obvious from the face of the certificate, that the three sisters, Mrs. Phipps, Mrs. Gibson, and Mrs. Haile, were all of them together, acting, acknowledging, and being examined; and, for aught that appears to the contrary, may have been surrounded, at the time of the acknowledgment, by the friends, relatives, and dependents of their husbands, and of their grantees, against whose arts and influences, if it do not appear by the certificate that the rights of the married women have been shielded and protected, the statute become a dead letter, and the private examination a mockery. The case of Jones v. Maffett and wife, 5 Serg. & Rawle, 534, was decided upon the ground that the Pennsylvania statute did not require a privy examination, but that it was sufficient if the feme covert were examined 'separate and apart from her husband.' There is a mutilated quotation, I believe, in the same case, of the maxim, ' omnia presumuntur rite esse acta ,' which is severed from donec probetur in contrarium . The certificate annihilates the presumption. 71 The disability of coverture can only be overcome by the precise means allowed by law for the alienation of the real estate of married women (2 Story's Eq. 617), of which an essential part is a private examination, derived from the English mode of conveyance by fine, and rescued from its wreck. Lord Coke thus discourseth of the same:—— 72 'The examination must be solely and secretly, and the effect thereof is, whether she be content of her own free good-will, without any menace or threat, to levy a fine of these parcels, and name them to her, every thing distinctly contained in the writ, so as she perfectly understand what she doth; and if the judge doubteth of her age, he may examine her upon her oath.'—2 Inst. 515; 6 Wend. 12. 73 It is a general principle of American law, that all deeds of married women, without a privy examination, are void; 2 Lomax's Dig. 18; and that all acts not conformable to acts of Assembly are void; ibid. 52. Some States provide, simply, that there shall be a private examination upon the execution of a deed by a feme covert, and leave every thing else to the integrity and intelligence of the offieers authorized to conduct it; others prescribe the acts to be performed by the officer, such as reading the deed, making known its contents, or explaining its effects (12 Leigh, 464; 1 Binney, 477; 6 Serg. & Rawle, 50), without the performance of which the deed is inoperative and void. But it is obvious that the requirement of the private examination alone, and the requirement of the acts which constitute it, are the same thing,—the object of both being to remove the disability which results from the matrimonial connection, while they throw an intrenchment around the rights of the feme covert, who is hardly considered, in contemplation of law, to have a separate legal existence, her husband and herself constituting but one person. The sacred injunction, Whom God hath joined together, let no man put asunder, is, pro hac vice , disregarded, and the minister of the law is clothed with a confidence which is denied to the husband. The inefficient or negligent discharge of the duties of the office, which tend to its degradation, will neither be sustained by subtle construction, nor receive the countenance of courts of justice. 74 The words of the certificate are, that 'they signed, sealed, and delivered the same as their act and deed, free of fears, threats, or compalsion of their said husbands'; the language of the statute is, that 'they signed, sealed, and delivered the same as their voluntary act and deed, freely , without any fear, threats, or compulsion of their said husbands.' The omission of two words of such pregnant import, emphatically reiterated, as if to stamp freedom of volition not only on the act itself, but the manner of the act, is, I humbly submit, so utterly fatal to the certificate, as to render any further remarks unnecessary, except that, though an act done by a person capable of contracting would be presumed to have been voluntary, yet this is not that case; and that each word of the certificate may be perfectly true, yet the deed may have been signed reluctantly and not voluntarily, sealed reluctantly and not voluntarily, and delivered reluctantly and not voluntarily. 75 III. The acknowledgment of the femes is not recorded, the certificate of the clerk embracing the deed only. 76 Be it remembered, that the deed was not proved as an original; to be read otherwise than as such, both the acknowledgment and the certificate must be recorded. Howard and Hutchinson, 343. 77 It is not the fact, but the recording of the fact, that makes the deed effectual. Tate's Dig. 170; 1 Pet. 138, 140. 78 It is in the nature of a judicial proceeding, of which there must be a record. 79 IV. Confirmation . It may yet be contended, that the bond, or the deed, or the mortgage, was confirmed, after disability removed, and that the mode of confirmation was the receipt of money upon the notes given for the property for which suit was brought. 80 Void instruments are incapable of confirmation (Story's Cont. § 47; Plowden's R. 397), which must be by an instrument of as high a nature. 8 Taunt. 36; 10 Peters, 59. 81 A lease, which is void as to a remainder man, cannot be set up as a defence to an action of ejectment brought by him, although it be proved that he received rent, or suffered the tenant to make improvements. Law Lib., Oct., 1845, p. 300; Doug. 50. 82 Confirmation cannot be, unless with a knowledge of their rights. 5 Ohio R. 255. 83 To make an act amount to redelivery, there must be clear knowledge. 5 Dana, 234. 84 It must be known that receipt of money made good the redelivery 9 Dana, 477. 85 The act relied on here was the receipt of money upon the notes, without any reference whatever to the bond, deed, or mortgage, by payor or payee. 86 Upon the mortgage, which was not offered in evidence, no question was raised in the court below; of course, none can be raised or considered here. 11 Wheat. 199. 87 The time when, and the character in which, this money was received will shed light upon the intention with which it was received, and the effect of its receipt. 88 The defects in the deed had not been ascertained when the payments were made. The bond was understood to be merged in the deed, and the deed was believed to be valid; hence there could have been no intention to confirm what was already considered as obligatory. Suit was brought as soon as the deed was discovered to be defective. The effect of the receipt of money in a fiduciary character cannot prejudice the private rights of Mrs. Rice or Mrs. Phipps. By law, they could only receive it thus, since they had no right to the personalty of their respective husbands; upon which, morecover, there was a statutory lien for their debts. The law will not put them in the predicament of saving their private rights by faithlessness to their trust, or losing their private rights by a faithful performance of the duties of executorship or administration. 89 There was neither instrument, act, nor intention of confirmation, nor knowledge of their rights, till suit was brought. 90 Mr. Crittenden , on the same side. 91 It might be dishonorable for any parties except married women to try and get this property back; but the law is not friendly to their rights, and in nine cases out of ten, they do not know what they are conveying away when they execute deeds. In this case, the property belonged to the wife, but she is not named as a grantor in the deed, and therefore is not bound by it. 3 Mason's C. C. R. 347. 92 ( Mr. Crittenden then examined the certificate of the magistrate, which he contended was not sufficient.) 93 It is argued that a subsequent acceptance of money by these wives, after the death of their husbands, reacts upon the original contract and confirms it. But it cannot make a deed good which is intrinsically void. Instruments may be confirmed in some cases, it is true, but only when they are valid for some purposes, and not where they are wholly void. And besides, the confirming act must be performed with the intention and purpose of producing such a consequence. It cannot be effected incidentally. The mere receipt of money is not sufficient. 94 Mr. Chief-Justice TANEY delivered the opinion of the court. 95 This being an action of ejectment, the only question between the parties is upon the legal title. 96 It is admitted in the exception, that Mary Rice and Martha Phipps, lessors of the plaintiff, were each of them, as heirs at law of Adam Bower, entitled to an undivided third part of the premises mentioned in the declaration, in fee simple. In order to shaw title out of them, the plaintiffs in error relied upon the bond of conveyance and deed, mentioned in the statement of the case, both of which were signed and sealed by these lessors of the plaintiff, but were executed while tney were femes covert. 97 As regards the bond, it would not have transferred the legal title, even if all the parties had been capable of entering into a valid and binding agreement. But as to the femes covert who signed it, it was merely void, and conferred no right, legal or equitable, upon the obligees. 98 The deed, also, is inoperative as to their title to the land. In the premises of this instrument, it is stated to be the indenture of their respective husbands in right of their wives, of the one part, and of the grantees, of the other part,—the husbands and the grantees being specifically named; and the parties of the first part there grant and convey to the parties of the second part. The lessors of the plaintiff are not described as grantors; and they use no words to convey their interest. It is altogether the act of the husbands, and they alone convey. Now, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and merely signing and sealing and acknowledging an instrument, in which another person is grantor, is not sufficient. The deed in question conveyed the marital interest of the husbands in these lands, but nothing more. 99 It is unnecessary to inquire whether the acknowledgment of the femes covert is or is not in conformity with the statute of Mississippi. For, assuming it to be entirely regular, it would not give effect to the conveyance of their interests made by the husbands alone. And as to the receipt of the money mentioned in the testimony, after they became sole, it certainly could not operate as a legal conveyance, passing the estate to the grantee, nor give effect to a deed which as to them was utterly void. 100 The judgment of the Circuit Court is therefore affirmed.",The deed was properly rejected upon three grounds:——
+27,105305,1,2,"Section 192, like the ordinary federal criminal statute, requires a criminal intent—in this instance, a deliberate, intentional refusal to answer. [33] This element of the offense, like any other, must be proved beyond a reasonable doubt. Petitioner contends that such proof was not, and cannot be, made in this case. Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to prosecution under § 192. Thus if he raises an objection to a certain question—for example, lack of pertinency or the privilege against self-incrimination—the committee may sustain the objection and abandon the question, even though the objection might actually be without merit. In such an instance, the witness' refusal to answer is not contumacious, for there is lacking the requisite criminal intent. Or the committee may disallow the objection and thus give the witness the choice of answering or not. Given such a choice, the witness may recede from his position and answer the question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal intent to violate § 192. In short, unless the witness is clearly apprised that the committee demands his answer notwithstanding his objections, there can be no conviction under § 192 for refusal to answer that question. [34] Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. At best he was left to guess whether or not the committee had accepted his objection. This ambiguity in the committee's position is apparent from the transcript of the hearing. [35] Immediately after petitioner stated that he was adopting Fitzpatrick's objection, the committee chairman asked petitioner: . . . will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer? In response to this, petitioner stated for the first time that he would not answer. He said: I decline to discuss with the committee questions of that nature. Committee counsel thereupon stated that further questioning relating to those matters was not necessary and proceeded upon a new line of inquiry. There is nothing in this colloquy from which petitioner could have determined with a reasonable degree of certainty that the committee demanded his answer despite his objection. Rather, the colloquy is wholly consistent with the hypothesis that the committee had in fact acquiesced in his objection. Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. [36] In this country the tradition has been uniformly recognized in the procedure of both state and federal courts. [37] It is further reflected in the practice of congressional committees prior to the enactment of § 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection. [38] Against this background § 192 became law. [39] No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness, and that a mere substitution of a judicial proceeding for punishment at the bar of Congress was intended. [40] The reason for enacting § 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session. [41] By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session. [42] But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of § 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail. [43] In fact, the very committee involved here, the House Un-American Activities Committee, originally followed this practice [44] and recently resumed it. [45] Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the legitimate interests of both the witness and the committee. Just as the witness need not use any particular form of words to present his objection, so also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain. And adherence to this traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative investigation.",There is yet a second ground for our decision.
+28,105305,1,1,"The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have understood as a claim of privilege against self-incrimination. In examining the record for this purpose, all the pertinent testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners. During an active period of national rearmament this Committee was investigating subversive and security situations in the sensitive electronic industry with a view to possible legislation. [5] The recalcitrant witnesses held important positions in the field. Mr. Quinn was a field organizer of the International Union of the United Electrical, Radio and Machine Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner but whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the Westinghouse Corporation local. There is nothing to indicate that the witnesses had mentalities of a quality less than one would expect from experienced officials holding such responsible positions. It will be observed from their testimony, however, that in avoiding direct answers to specific questions each one engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for these witnesses and the careful avoidance of any such statement as, I decline to answer on the ground of possible self-incrimination, I cannot hold that these witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim of privilege would subject the witnesses to criticism in some quarters, of course, has no bearing upon the necessity to assert one's rights. This is emphasized by the fact that long ago this Court declared that no moral turpitude is involved in refusing to answer under the protection of the privilege. [6] While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified that the refusal of each to answer the aforesaid questions deprived your committee of necessary and pertinent testimony . . . . [7] It can hardly be contended that the Committee did not know a claim of privilege against answering incriminating questions would have excused the witnesses from answering. In view of the basis of the Court's decision made on its own examination and appraisal of the record, I must necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege. [8] The pertinent evidence follows. After testifying at some length, the petitioner was asked: Mr. Emspak, are you acquainted with Joseph Persily? Petitioner did not answer the question but made the following statement: Mr. Emspak. Mr. Chairman, I would like to say something at this point. Mr. Moulder. You mean in response to the question? Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position. What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as an officer of this union is to represent the interest of the membership as they determine it at the annual conventions and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the best of my ability, using one very simple measuring stick, and that is: Does a given policy or action contribute to the well-being of the membership, individually and collectively? As an individual I would like to say one thing, and that is this: The line of questioning that counsel is developing now is a line that has been used on numerous occasions by this committee and other congressional committees in an attempt to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an American. I was born in this country. Everything I am— Mr. Moulder. How long will this statement take, Mr. Emspak? Mr. Emspak. About two or three more minutes. Mr. Moulder. Proceed. Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this country which, if not perverted, will lead to a greater and better country—I don't think a committee like this or any subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of kids. They have a stake in this country, too. Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an oration now. Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling. Mr. Moulder. What is the question? Mr. Tavenner. The question is: Are you acquainted with Joseph Persily. Mr. Moulder. How do you spell that? Mr. Tavenner. P-e-r-s-i-l-y. Mr. Emspak. Because I have a stake in this country— Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this man. Mr. Emspak. I will answer it. Mr. Moulder. Are you or not? Mr. Emspak. I was on the verge of answering it. Mr. Moulder. If you have any explanation to make you will be permitted to do so after you answer the question. Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee— Mr. Moulder. Are you going to answer the question? Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the first amendment, supplemented by the fifth. This committee will corrupt those rights. Mr. Moulder. Do you think it corrupts you to answer the question? Mr. Emspak. I certainly do. Mr. Moulder. Why does it corrupt you? Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You know that. You dragged down the prestige of this country. Mr. Moulder. You are not going to take over this committee. Mr. Emspak. I don't want to. Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it exists in this country. What is the question? Mr. Tavenner. Are you acquainted with Joseph Persily? Mr. Emspak. For the reasons I stated before, I answered it. Mr. Moulder. Then you refuse to answer the question? Mr. Emspak. No. I answered it. Mr. Travenner. Are you or are you not acquainted with Joseph Persily? Mr. Emspak. I answered the question. Mr. Tavenner. Your replies are a refusal to comply with the request to answer it? (Witness confers with his counsel.) Mr. Moulder. The record will reveal that you have not answered the question. Mr. Emspak. I have answered it to the best of my ability under the circumstances. In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following statements were made: Mr. Emspak. Mr. Chairman, on these questions, which are all essentially the same, of course, when this hearing was announced according to the press reports, at least, it was announced because this committee presumably was interested in finding out things with reference to individuals in our organization by using whatever means it has at its disposal, and for the purpose of trying to perhaps frame people for possible criminal prosecution. I don't see how or why any individual should be subjected to that kind of questioning here if he is going to maintain, you know, his feelings on these questions, and I tried to express the feeling before when you interrupted me. I just don't intend, as I said then, to be a party to any kangaroo court proceedings of this committee or any other congressional committee. I think I have the right to reserve whatever rights I have in that respect to whatever appropriate bodies may be set up to deal with questions that come up. Mr. Moulder. Do you mean to say you have people in your organization who have information that would subject you to criminal prosecution? Mr. Emspak. No; I don't, Mr. Chairman. As a basic proposition—and it has worked over the years and over the last few months as far as this committee is concerned—a slick job— Mr. Moulder. Do you know them or not? Mr. Emspak. That does not concern this committee at all. Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution? Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is my own position. No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as an official of the UERMWA with Communist or Communist Front Affiliations. Nothing more favorable to petitioner's position appears on the questions examined or any other question. As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this opinion unnecessarily with quotations from the Quinn case. In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick, chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn's testimony establishing his reliance on Mr. Fitzpatrick's evidence will be found in this Court's opinion in the Quinn case, n. 8, ante, p. 158. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights to secrecy as follows: The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel that they should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the first amendment to the Constitution, supplemented by the fifth amendment. Mr. Wood. What is? Mr. Fitzpatrick. The right of the people guaranteed by the Constitution. This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: Are you now or have you ever been a member of the Communist Party? After fencing with the Committee about prying into his mind, he said: Mr. Fitzpatrick. I will answer the question. The Constitution guarantees the right to me and every other citizen to have beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am one of the real Americans, and not like some of the phonies who appear here. Later on he was asked whether he had asked a Mr. Cope-land to sign an application for membership in a Communist organization. In answer to that question this occurred: Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again? Mr. Wood. I just want to know whether you did that one thing. Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this kind of action. Mr. Wood. And for that reason do you decline to answer the question? Mr. Fitzpatrick. I stand on the protection of the Constitution, the first and fifth amendments. Mr. Wood. And for those reasons decline to answer the question further? Mr. Fitzpatrick. I have answered the question. Mr. Wood. I say, do you decline to answer it further? Mr. Fitzpatrick. I have no further comment on it. The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be thought to refer to a claim of immunity against self-incrimination. From these vague statements of Messrs. Quinn and Emspak the Court draws the conclusion that they were sufficient to apprise the Committee of the witnesses' intention to claim the privilege against self-incrimination. The Court finds support for its theory of intention to claim privilege from a statement in the Government's brief in the Quinn case set out below. [9] With all respect, I fail to see any concession by the Government of evidence that should apprise the Committee of a claim of privilege against self-incrimination. The first sentence of the quotation from the brief emphatically denies the Court's assumption. What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation. Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise the Committee of the claim of privilege and should not be held permissible. Factual testimony is the means for the ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on the witness to advise his interrogators of a claim to privilege in understandable terms. [10] In the context of this testimony, the adoption by Mr. Quinn of Mr. Fitzpatrick's reference to the First and Fifth Amendments smacks strongly of a due process Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of privacy, speech and association, not of the privilege against self-incrimination. He then added: Mr. Chairman, if you want to ask me questions about my actions of loyalty, question my loyalty, you have a right to do so and I will answer them. So far as my political opinions, I have stated my position on that. You are asking the same question in a different way. But if my memory is right, there was no such thing as a Communist Party when that affidavit is supposed to have been. The same attitude shows through Mr. Emspak's testimony. In addition there was a direct refusal by Mr. Emspak to claim privilege. See pp. 179-180, supra. The Court suggests that this should not be construed as a waiver of the claim and cites Smith v. United States, 337 U. S. 137, 151. I do not think the Smith case apposite. In that case there had been a clear claim of privilege for immunity. We held that required a definite, unambiguous waiver. Here there was, in my view, no claim of privilege. The opinion of the trial court, printed only in the record, pp. 224-227, holds The defendant failed to assert [the privilege]. Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach that issue. I concur with the Court in its assertions of the value of the self-incrimination clause—that it may be used as a shield by guilty and innocent alike—and that it should be construed liberally as it has been to cover more than the literal reading of the phrase No person . . . shall be compelled in any criminal case to be a witness against himself would suggest. [11] This sympathetic attitude toward the clause should not lead us to intrude our ideas of propriety into the conduct of congressional hearings. The rule laid down by the Court today merely adds another means for interference and delay in investigations and trials, without adding to the protection of the constitutional right of freedom from self-incrimination. This is contrary to the policy of Congress to get information from witnesses even with a claim of immunity, through the Compulsory Testimony Act of August 20, 1954, 68 Stat. 745.",claim of privilege.
+29,105305,1,2,"The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee's questions is required for the judgment of contempt. The Court explains, Quinn case, p. 166, that intent may be implied only when the witness is clearly apprised that the committee demands his answer notwithstanding his objections, and, Emspak case, p. 202, without such apprisal there is lacking the element of deliberateness necessary for a conviction under § 192 for a refusal to answer. The Court concludes that the witness was not specifically directed to answer, or otherwise informed as to the disposition of his objections. The Court must admit, as it does, Quinn opinion, p. 162, that no particular form of words is required. On the other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to answer is not accepted by the interrogator. [12] I agree that the offense punishable under the statute is a deliberate, intentional refusal—not an inadvertence, accident or misunderstanding. [13] Good faith in refusing to answer, however, is no defense so long as the refusal is intentional, deliberate. Sinclair v. United States, 279 U. S. 263, 299, points out that: The gist of the offense is refusal to answer pertinent questions. . . . Intentional violation is sufficient to constitute guilt. United States v. Murdock, 284 U. S. 141, involved a statute very similar to the one here involved. In that case, Murdock had been called to testify before an Internal Revenue Agent and refused to answer certain questions on the ground that he might be incriminated under state law. We said in that case: While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may be tested in proceedings to compel answer, there is no support for the contention that there must be such a determination of that question before prosecution for the willful failure so denounced. By the very terms of the definition the offense is complete at the time of such failure. 284 U. S., at 148. There was no direction to answer in either case. While the point was not raised, their holding as to what establishes the offense does not include a specific direction to answer as one of the elements. While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2 U. S. C. § 192, at the same time we were at pains to point out There was no misapprehension on the part of the witness as to what was called for. P. 299. It is because the refusal must be intentional, that the witness must know that his excuses for not answering have not been accepted by the Committee. When a witness interposes objections to testifying which are not frivolous, it is difficult to say he intentionally refused to answer when the interrogation continues without pause to some other question. I agree that the Committee cannot, in fairness to the witness, lull him into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal under such circumstances would not be deliberate. However, specific direction to answer is not necessary; only intentional refusal is. The Court suggests, n. 36, Quinn case, that congressional committees follow the practice of other legislative bodies and determine first the validity of the witness' reason for failure to answer and then direct him to answer. The defect in that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such a specific direction is inconsistent with its page 170 admission that no ritualistic formula is required. No provision of the statute, nor of any rule of Congress is cited by the Court to support a requirement of specific direction. The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not acceded to his refusal. [14] As I stated above, in my view it is sufficient if the witness knows his excuses are not acceptable to the Committee and that he is required to answer. Whether or not the witnesses knew this in these two cases is the question on this second point. The Court holds that the witnesses did plead the privilege and were not advised that the Committee refused to accept their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as his own method of refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a Committee member, said to Mr. Quinn: Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer? Mr. Quinn. I decline to discuss with the committee questions of that nature. This, I think, advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse and required him to proceed. I think, too, that Mr. Emspak was advised his answer was not accepted and that he was required to proceed. When he was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again: Mr. Emspak. For the reasons I stated before, I answered it. Mr. Moulder. Then you refuse to answer the question? Mr. Emspak. No. I answered it. Mr. Tavenner. Are you or are you not acquainted with Joseph Persily? Mr. Emspak. I answered the question. Mr. Tavenner. Your replies are a refusal to comply with the request to answer it? (Witness confers with his counsel.) Mr. Moulder. The record will reveal that you have not answered the question. Mr. Emspak. I have answered it to the best of my ability under the circumstances. On continued questioning as to Mr. Persily, he continued, I will give the same answer. I cannot but conclude, as did the lower courts, that the witness Emspak was adequately informed that his objections were refused and that he must answer. The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those issues, I dissent. MR. JUSTICE MINTON joins in so much of this opinion as applies to Emspak v. United States , post, p. 190.",direction to answer.
+30,105899,1,1,"Malcolm B. Seawell, Attorney General of North Carolina, and Ralph Moody, Assistant Attorney General, filed a brief for the State of North Carolina, as amicus curiae, urging affirmance.",Beverly Lake argued the cause and filed a brief for appellee.
+31,107487,1,1,"Petitioner was arrested in Philadelphia by an FBI agent and refused to answer questions about the Alhambra robbery without the advice of counsel. He later did answer questions of another agent about some Philadelphia robberies in which the robber used a handwritten note demanding that money be handed over to him, and during that interrogation gave the agent the handwriting exemplars. They were admitted in evidence at trial over objection that they were obtained in violation of petitioner's Fifth and Sixth Amendment rights. The California Supreme Court upheld admission of the exemplars on the sole ground that petitioner had waived any rights that he might have had not to furnish them. [The agent] did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief. 63 Cal. 2d, at 708. 408 P. 2d, at 376. The court did not, therefore, decide petitioner's constitutional claims. We pass the question of waiver since we conclude that the taking of the exemplars violated none of petitioner's constitutional rights. First. The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers, and not compulsion which makes a suspect or accused the source of `real or physical evidence' . . . . Schmerber v. California, 384 U. S. 757, 763-764. One's voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra , at 222-223. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U. S. 616. Second. The taking of the exemplars was not a critical stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial. Cf. United States v. Wade, supra . If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus, the accused has the opportunity for a meaningful confrontation of the [State's] case at trial through the ordinary processes of cross-examination of the [State's] expert [handwriting] witnesses and the presentation of the evidence of his own [handwriting] experts. United States v. Wade, supra , at 227-228.",the handwriting exemplars.
+32,107487,1,2,"Petitioner contends that he was denied due process of law by the admission during the guilt stage of the trial of his accomplice's pretrial statements to the police which referred to petitioner 159 times in the course of reciting petitioner's role in the robbery and murder. The statements were inadmissible hearsay as to petitioner, and were held on King's aspect of this appeal to be improperly obtained from him and therefore to be inadmissible against him under California law. 63 Cal. 2d, at 699-701, 408 P. 2d, at 370-371. Petitioner would have us reconsider Delli Paoli v. United States, 352 U. S. 232 (where the Court held that appropriate instructions to the jury would suffice to prevent prejudice to a defendant from the references to him in a co-defendant's statement), at least as applied to a case, as here, where the co-defendant gained a reversal because of the improper admission of the statements. We have no occasion to pass upon this contention. The California Supreme Court has rejected the Delli Paoli rationale, and relying at least in part on the reasoning of the Delli Paoli dissent, regards cautionary instructions as inadequate to cure prejudice. People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265. The California court applied Aranda in this case but held that any error as to Gilbert in the admission of King's statements was harmless. The harmless-error standard applied was that there is no reasonable possibility that the error in admitting King's statements and testimony might have contributed to Gilbert's conviction, a standard derived by the court from our decision in Fahy v. Connecticut, 375 U. S. 85. [1] Fahy was the basis of our holding in Chapman v. California, 386 U. S. 18, and the standard applied by the California court satisfies the standard as defined in Chapman. It may be that the California Supreme Court will review the application of its harmless-error standard to King's statements if on the remand the State presses harmless error also in the introduction of the in-court and lineup identifications. However, this at best implies an ultimate application of Aranda and only confirms that petitioner's argument for reconsideration of Delli Paoli need not be considered at this time.",admission of co-defendant's statements.
+33,107487,1,3,"The California Supreme Court rejected Gilbert's challenge to the admission of certain photographs taken from his apartment pursuant to a warrantless search. The court justified the entry into the apartment under the circumstances on the basis of so-called hot pursuit and exigent circumstances exceptions to the warrant requirement. We granted certiorari to consider the important question of the extent to which such exceptions may permit warrantless searches without violation of the Fourth Amendment. A closer examination of the record than was possible when certiorari was granted reveals that the facts do not appear with sufficient clarity to enable us to decide that question. See Appendix to this opinion; compare Warden v. Hayden, 387 U. S. 294. We therefore vacate certiorari on this issue as improvidently granted. The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184.",the search-and-seizure claim.
+34,107487,1,4,"Since none of the petitioner's other contentions warrants relief, the issue becomes what relief is required by application to this case of the principles today announced in United States v. Wade, supra . Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage of the trial had observed him at a lineup conducted without notice to his counsel in a Los Angeles auditorium 16 days after his indictment and after appointment of counsel. The manager of the apartment house in which incriminating evidence was found, and in which Gilbert allegedly resided, identified Gilbert in the courtroom and also testified, in substance, to her prior lineup identification on examination by the State. Eight witnesses who identified him in the courtroom at the penalty stage were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by him. In addition to their in-court identifications, these witnesses also testified that they identified Gilbert at the same lineup. The lineup was on a stage behind bright lights which prevented those in the line from seeing the audience. Upwards of 100 persons were in the audience, each an eyewitness to one of the several robberies charged to Gilbert. The record is otherwise virtually silent as to what occurred at the lineup. [2] At the guilt stage, after the first witness, a cashier of the savings and loan association, identified Gilbert in the courtroom, defense counsel moved, out of the presence of the jury, to strike her testimony on the ground that she identified Gilbert at the pretrial lineup conducted in the absence of counsel in violation of the Sixth Amendment made applicable to the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U. S. 335. He requested a hearing outside the presence of the jury to present evidence supporting his claim that her in-court identification was, and others to be elicited by the State from other eyewitnesses would be, predicated at least in large part upon their identification or purported identification of Mr. Gilbert at the showup . . . . The trial judge denied the motion as premature. Defense counsel then elicited the fact of the cashier's lineup identification on cross-examination and again moved to strike her identification testimony. Without passing on the merits of the Sixth Amendment claim, the trial judge denied the motion on the ground that, assuming a violation, it would not in any event entitle Gilbert to suppression of the in-court identification. Defense counsel thereafter elicited the fact of lineup identifications from two other eyewitnesses who on direct examination identified Gilbert in the courtroom. Defense counsel unsuccessfully objected at the penalty stage, to the testimony of the eight witnesses to the other robberies that they identified Gilbert at the lineup. The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra . We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error. Quite different considerations are involved as to the admission of the testimony of the manager of the apartment house at the guilt phase and of the eight witnesses at the penalty stage that they identified Gilbert at the lineup. [3] That testimony is the direct result of the illegal lineup come at by exploitation of [the primary] illegality. Wong Sun v. United States, 371 U. S. 471, 488. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which in-here in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence. Cf. Mapp v. Ohio, 367 U. S. 643. That conclusion is buttressed by the consideration that the witness' testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused's right to a fair trial. Therefore, unless the California Supreme Court is able to declare a belief that it was harmless beyond a reasonable doubt, Chapman v. California, 386 U. S. 18, 24, Gilbert will be entitled on remand to a new trial or, if no prejudicial error is found on the guilt stage but only in the penalty stage, to whatever relief California law affords where the penalty stage must be set aside. The judgment of the California Supreme Court and the conviction are vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered.",the in-court and lineup identifications.
+35,118323,1,2,"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Although today's cases concern suits brought by citizens against their own States, this Court has long `understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.'  Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991)). Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe, supra, at 54; see Hans v. Louisiana, 134 U. S. 1, 15 (1890). Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Seminole Tribe, supra, at 55.",The Eleventh Amendment states:
+36,118323,2,2,"Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. As we recognized most recently in City of Boerne v. Flores, 521 U. S. 507, 517 (1997), § 5 is an affirmative grant of power to Congress. It is for Congress in the first instance to `determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference. Id., at 536 (quoting Katzenbach v. Morgan, 384 U. S. 641, 651 (1966)). Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power to enforce the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. 521 U. S., at 518. Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot decree the substance of the Fourteenth Amendment's restrictions on the States. . . . It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation. Id., at 519 (emphases added). The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch. Id., at 536. In City of Boerne, we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. Id., at 519-520. The line between the two is a fine one. Accordingly, recognizing that Congress must have wide latitude in determining where [that line] lies, we held that [t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Id., at 520. In City of Boerne, we applied that congruence and proportionality test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate legislation under § 5. We first noted that the legislative record contained very little evidence of the unconstitutional conduct purportedly targeted by RFRA's substantive provisions. Rather, Congress had uncovered only anecdotal evidence that, standing alone, did not reveal a widespread pattern of religious discrimination in this country. Id., at 531. Second, we found that RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. Id., at 532. Last Term, we again had occasion to apply the congruence and proportionality test. In Florida Prepaid, we considered the validity of the Eleventh Amendment abrogation provision in the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). We held that the statute, which subjected States to patent infringement suits, was not appropriate legislation under § 5 of the Fourteenth Amendment. The Patent Remedy Act failed to meet our congruence and proportionality test first because Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations. 527 U. S., at 640 (emphasis added). Moreover, because it was unlikely that many of the acts of patent infringement affected by the statute had any likelihood of being unconstitutional, we concluded that the scope of the Act was out of proportion to its supposed remedial or preventive objectives. Id., at 647. Instead, [t]he statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime. Id., at 647-648. While we acknowledged that such aims may be proper congressional concerns under Article I, we found them insufficient to support an abrogation of the States' Eleventh Amendment immunity after Seminole Tribe. Florida Prepaid, supra, at 648.","The Fourteenth Amendment provides, in relevant part:"
+37,88025,1,1,"Whether the taxes paid by the plaintiff, and sought to be recovered back in this action, are not direct taxes, within the meaning of the Constitution of the United States. In considering this subject, it is proper to advert to the several provisions of the Constitution relating to taxation by Congress. Representatives shall be apportioned among the several States which shall be included in this Union, according to their respective numbers, &c. [] Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States. [†] No capitation or other direct tax shall be laid, unless in proportion to the census of enumeration hereinbefore directed to be taken.' No tax or duty shall be laid on articles exported from any State. [] These clauses contain the entire grant of the taxing power by the organic law, with the limitations which that instrument imposes. The national government, though supreme within its own sphere, is one of limited jurisdiction and specific functions. It has no faculties but such as the Constitution has given it, either expressly or incidentally by necessary intendment. Whenever any act done under its authority is challenged, the proper sanction must be found in its charter, or the act is ultra vires and void. This test must be applied in the examination of the question before us. If the tax to which it refers, is a direct tax, it is clear that it has not been laid in conformity to the requirements of the Constitution. It is therefore necessary to ascertain to which of the categories, named in the eighth section of the first article, it belongs. What are direct taxes, was elaborately argued and considered by this court in Hylton v. United States, [†] decided in the year 1796. One of the members of the court, Justice Wilson, had been a distinguished member of the Convention which framed the Constitution. It was unanimously held, by the four justices who heard the argument, that a tax upon carriages, kept by the owner for his own use, was not a direct tax. Justice Chase said: I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution are only two, to wit: a capitation or poll tax simply, without regard to property, profession, or any other circumstance, and a tax on land.",The sixth question is:
+38,104910,1,1,"In the New York courts, petitioners invoked one of several provisional remedies which, from time out of mind, New York has extended to its citizens against their nonresident debtors. These, in appropriate circumstances, may take the form of receivership [10] or attachment. [11] While these two remedies differ in nature and incidents, they are alike in being available at the commencement or during the pendency of an action, are not independent but auxiliary in character, and are not designed finally to adjudge substantive rights but to secure such judgment as may be rendered. As employed in this case, attachment also was the sole basis of jurisdiction. The attachment levy on bank balances is perfected by service of a certified copy of the warrant of attachment on the banking institution, [12] which is required to certify to the sheriff making the levy the balance due to the defendant. [13] The levy does not require the sheriff to take physical possession of any property, nor does it require any transfer of title. The effect is prescribed: Any such person so served with a certified copy of a warrant of attachment is forbidden to make or suffer, any transfer or other disposition of, or interfere with, any such property or interest therein so levied upon, . . . or sell, assign or transfer any right so levied upon, to any person, or persons, other than the sheriff serving the said warrant until ninety days from the date of such service, except upon direction of the sheriff or pursuant to an order of the court. [14] The account attached must, on the sheriff's demand, be paid over to him within ninety days, unless, as here, the time has been extended by order of court, and the sheriff is authorized to institute an action within that time to recover amounts withheld. [15] These creditors prosecuted their actions to judgments which could be satisfied only from attached property and by issuance of executions. [16] An attachment merges in an execution when issued, but it is not annulled until the judgment is paid and remains in force to keep alive the lien on the property. Castriotis v. Guaranty Trust Co., 229 N. Y. 74, 79, 127 N. E. 900, 902 (1920). Execution, if issued, would require a transfer of credit and of funds, but this step has not been taken and, it is admitted, cannot be taken in these cases without a federal license. While requirement of a federal license creates something of a contingency as to satisfaction of the judgments, as matter of New York law this does not deprive the judgment of its validity or the attachment of its lien. Commission for Polish Relief v. Banca Nationala a Rumaniei, 288 N. Y. 332, 338, 43 N. E. 2d 345, 347 (1942). Although the provisional remedy of attachment, as used in this case, has served to provide the basis of jurisdiction and has created a lien to secure satisfaction of the judgment, it is clear that it has neither attempted nor accomplished any transfer of possession, for these attachments have been maintained for over nine years, and the accounts are still where they were before the attachments were levied. That there has been no transfer of title to the funds by the proceedings to date also is clear. If the judgment debtors chose to satisfy the judgments by other means, or to substitute an undertaking for the property attached, they could do so, and the accounts would be freed of the lien. [17] Under state law, the position of these judgment creditors is that they have judgments, secured by attachments on balances owned by German aliens, good as against the debtors, but subject to federal licensing before they can be satisfied by transfer of title or possession. The Custodian claims, in a collateral attack, that federal courts should pronounce them wholly void and of no effect.",rights of the judgment creditors under new york law.
+39,104910,1,2,"The Government, in the present action, relies heavily on General Ruling No. 12 under Executive Order No. 8389, issued April 21, 1942, some three to five months after these attachments were levied, and almost two years after issuance of the Executive Order which it purports to interpret. [18] Then, for the first time, an attachment levy was specifically designated as a prohibited transfer. The Government asks that it be construed to prohibit such attachments as here made and be applied retroactively to these attachments made before its promulgation. Whether an administrative agency could thus lump all attachments as prohibited transfers, without reference to the nature of the rights acquired or steps taken under the various state laws providing for attachments, presents a question which we need not decide here. Some attachments may well be transfers, and thus prohibited. We deal here only with an attachment under New York law relating specifically to bank accounts. This General Ruling, as thus interpreted to forbid these attachments, would be not only retroactive but inconsistent and irreconcilable with the contentions made one day after its issuance by both the Treasury and the Department of Justice to the New York Court of Appeals. These Departments filed a brief amicus curiae, dated April 22, 1942, in the New York Court of Appeals in Commission for Polish Relief v. Banca Nationala a Rumaniei, supra . The case involved an attachment, identical in state law character with those here, of bank balances in New York of the National Bank of Rumania, which had been frozen by Executive Order prior to levy. The Government's brief was subscribed by the General Counsel of the Treasury and an Assistant Attorney General, both members of the New York bar, presumably familiar with the peculiarities of the New York law of attachment of bank accounts. It specifically called attention to General Ruling No. 12, and, referring to the claim of incompatibility between the attachment and the federal freezing program, it declared: This is the first occasion in which a court of last resort in this country has been called upon to meet this issue . . . . [19] It went on to advise the Court of Appeals definitely and comprehensively as to the rights of New York courts to proceed on the basis of the attachment there involved. In view of the Custodian's present contentions, it merits extensive consideration. The New York courts were advised of five purposes of the Federal Government's program: 1. Protecting property of persons in occupied countries; 2. Preventing the Axis, now our enemy, from acquiring any benefit from these blocked assets; 3. Facilitating the use of blocked assets in the United Nations war effort and protecting American banks and business institutions; 4. Protecting American creditors; 5. Foreign relations, including post-war negotiations and settlements. [20] To accomplish these purposes in relation to over seven billion dollars of blocked foreign assets, it was said that . . . the Treasury has had to deal with the problem of litigation, particularly attachment actions, as affecting blocked assets, [21] and the position of the Treasury was represented as follows: . . . the Treasury did not want to interfere with the orderly consideration of cases by the courts, including attachment actions, and at the same time it was essential to the Government's program that the results of court proceedings be subject to the same policy considerations from the point of view of freezing control as those arising or recognized through voluntary action of the parties. Indeed the Treasury regards the courts as the appropriate place to decide disputed claims and suggested to parties that they adjudicate such claims before applying for a license to permit the transfer of funds. The judgment was then regarded by the Treasury as the equivalent of a voluntary payment order without the creation or transfer of any vested interest, and a license was issued or denied on the same principles of policy as those governing voluntary transfers of blocked assets. The Treasury Department did not feel that it could finally pass on an application for a license to transfer blocked assets where the facts were disputed or liability denied. The Treasury felt that it was not practical to pass on the freezing control questions involved in such applications until there was at least a determination of the facts by a court of law. . . . [22] Notwithstanding this assertion of complete discretion to grant or withhold approval of ultimate transfers, the Government advised the Court of Appeals that, So far as foreign funds control is concerned there can be an attachable interest under New York law with respect to the blocked assets. . . . [23] In language applicable to the case before us now, it said: The National Bank of Rumania has property within the jurisdiction. It has not been divested of all its property rights. In fact, its interests today in the blocked assets are perhaps by far the most valuable of all the interests in such assets. This property has not been confiscated by the Government. The National Bank of Rumania is prohibited from exercising powers and privileges which prior to the Executive Order it could exercise. . . . [T]he right of the owner of a blocked account to apply for a license to make payment out of such an account is a most substantial one, and that lawful payment can be made if a license is granted. [24] And the Government continued: An attachment action against a national's blocked account is an attempt to obtain an unlicensed assignment of the national's interest in the blocked account —nothing more and nothing less. In this sense, the attachment action might be regarded as a levy upon the nationals contingent power ( i. e. contingent upon Treasury authorization) to transfer all his interest in the blocked account to A; any judgment in the attachment action resulting in giving A a contingent interest in the account equivalent to what he would have obtained by voluntary assignment. The value of such an interest is of course problematical. Whether it is worthless or worth full value will depend upon whether the transfer sought is in accordance with the Government's policies in administering freezing control. Under this analysis of what the nature of any attachment action against a blocked account must be, in the light of the purposes of freezing control, it is suggested that an attachment action of this nature might well be allowed in the New York courts. [25] ..... The Federal Government is anxious to keep to a minimum interference with the normal rights of litigants and the jurisdiction of courts to hear and determine cases, consistent with the most effective prosecution by the Government of total war. Applied to the instant case, this means that the Federal Government must have its hands unfettered in using freezing control, recognizing that it is desirable that private litigants be able to attach some interest with respect to blocked assets in order to clarify their rights and liabilities. This has been suggested in this Brief. The Government believes that the interests of private litigants in state courts can be served without interference with the freezing control program. However, the interest of the Government is paramount to the rights of private litigants in this field and should this Court be of the view that under the New York law there cannot be a valid attachment of the limited interests herein suggested, then the Government must reluctantly take the position that in the absence of further authorization under the freezing control, there can be no attachable interest under New York law with respect to blocked assets. [26] As the Government pointed out in the Polish Relief case, the Custodian is charged, among other things, with preserving and distributing blocked assets for the benefit of American creditors. Few claims are not subject to some question, and the Treasury does not pay questionable claims. For those claims to be settled so that they can properly be paid out of blocked assets they must be adjudicated valid by some court of law. Because the debtor rarely is amenable to personal service, any action must be in the nature of a quasi-in-rem action preceded by an attachment of property belonging to the debtor within the jurisdiction of the court. If, as the Custodian now contends, the freezing program puts all assets of an alien debtor beyond the reach of an attachment, it is not difficult to see that there can be no adjudications of the validity of American claims and consequently the claims, not being settled, would not be satisfied by the Treasury. The logical end of that course would be complete frustration of a large part of the freezing program. We cannot believe that the President intended the program to reach such a self-generated stalemate. The New York Court of Appeals took the position urged by the Federal Government. It held that the interest of the debtor, although subject to the licensing contingency, was sufficient as matter of state law to render the levy valid and sufficient as a basis of jurisdiction to decide any issues between the attaching creditor and the foreign debtor. At the same time, it acknowledged that any transfer of the attached funds to satisfy the judgment could only be had if and when the proper license had been secured. Commission for Polish Relief v. Banca Nationala a Rumaniei, supra . What the New York courts have done here is not distinguishable from what the Government urged in the Polish Relief case. Indeed, in that case, the Secretary of the Treasury had expressly denied the application of the petitioner for a license for his attachment. In spite of that, however, the Government urged that the attachment was authorized by settled administrative practice: From the very inception of freezing control, litigants, prior to commencing attachment actions against funds belonging to blocked nationals, have requested the Secretary of the Treasury to license a transfer to the sheriff by attachment. In all those cases, running into the hundreds, the Treasury Department has taken a consistent position. The Treasury Department has authorized the bringing of an attachment action. However, the Treasury Department has not licensed a transfer of the blocked funds to the sheriff prior to judgment. [27] The foregoing is confirmed in this case by a stipulation that consistent administrative practice treated attachments such as we have here as permissible and valid at the time they were levied. [28] The Custodian now asks the federal courts to declare the state court attachments nullities. His request here is not merely that he is entitled to take and administer the fund, but that the attachments are not effective as against the right, title, and interest of the German banks. His request is irreconcilable with the admitted administrative practice and the position urged upon the New York courts in the Polish Relief case. He predicates that reversal of position, and so far has been sustained in it, upon the decision of this Court in Propper v. Clark, supra , to which we accordingly turn.",effect of federal foreign funds control on attachment.
+40,104910,1,4,"The Custodian in this case has only sought to vest in himself the right, title, and interest of the German banks. As we understand it, he acknowledges that if the interests acquired by the attachments are valid as against the German banks he is not, under the Vesting Orders involved, as he has chosen to phrase them, entitled to the attached funds, but he takes the position that no valid rights against the German debtors were acquired by the attachments because prohibited by the freezing program. [40] He has, in short, put himself in the shoes of the German banks. As against the German debtors, the attachments and the judgments they secure are valid under New York law, and cannot be cancelled or annulled under a Vesting Order by which the Custodian takes over only the right, title, and interest of those debtors in the accounts. But, of course, as against the Custodian, exercising the paramount power of the United States, they do not control or limit the federal policy of dealing with alien property and do not prevent a res vesting, as sustained in the companion cases, if the Custodian sees fit to take over the entire fund for administration under the Act. In such case, all federal questions as to recognition by the Custodian of the state law lien, or priority of payment, are reserved for decision if and when presented in accordance with the Act. This result, as we have indicated, in no way impairs federal control over alien property, since the petitioners admit that they cannot secure payment from the attached frozen funds without a license from the Custodian. The case is, therefore, more nearly like Lyon v. Singer, 339 U. S. 841, 842, where this Court said: We accept the New York court's determination that under New York law these claims arose from transactions in New York and were entitled to a preference. Since the New York court conditioned enforcement of the claims upon licensing by the Alien Property Custodian, federal control over alien property remains undiminished. The decision of the court below is Reversed. MR. JUSTICE CLARK took no part in the consideration or decision of these cases.",the vesting order.
+41,108350,1,8,"Arizona has a comprehensive statutory plan for the regulation of vehicles upon its highways. Ariz. Rev. Stat. Ann., Tit. 28. Among the State's efforts to assure responsibility in this area of increasing national concern are its Uniform Motor Vehicle Operators' and Chauffeurs' License Act (c. 4), its Uniform Act Regulating Traffic on Highways (c. 6), and its Uniform Motor Vehicle Safety Responsibility Act (c. 7). [3] The challenged § 28-1163 (B) is a part of the Motor Vehicle Safety Responsibility Act. The Act's provisions are not unfamiliar. There is imposed upon the Motor Vehicle Division Superintendent the duty to suspend the license of each operator, and the registration of each owner, of a motor vehicle involved in an accident resulting in bodily injury or death or property damage to any one person in excess of $100, except, among other situations, where proof of financial responsibility, as by the deposit of appropriate security or by the presence of a liability policy of stated minimum coverage, is afforded. §§ 28-1142 (Supp. 1970-1971), 28-1143, and 28-1167. The suspension, once imposed, remains until the required security is deposited or until one year has elapsed and no action for damages has been instituted. § 28-1144. If the registrant or operator fails, within 60 days, to satisfy an adverse motor vehicle final judgment, as defined in § 28-1102 (2) (Supp. 1970-1971), the court clerk has the duty to notify the Superintendent and the latter to suspend the license and registration of the judgment debtor. §§ 28-1161 (A) and 28-1162 (A). But if the judgment creditor consents in writing that the debtor be allowed to retain his license and registration, the Superintendent in his discretion may grant that privilege. § 28-1162 (B). Otherwise the suspension remains in effect until the judgment is satisfied. § 28-1163 (A). Payments of stated amounts are deemed to satisfy the judgment, § 28-1164 (Supp. 1970-1971), and court-approved installment payment of the judgment will preserve the license and registration, § 28-1165.",The Statutory Plan
+42,108350,1,9,"Inasmuch as the case is before us on the motion of defendants below to dismiss the Perez complaint that alleged Adolfo's driving alone, the collision, and the judgment in favor of the Pinkertons, it is established, for present purposes, that the Pinkerton judgment was based on Adolfo's negligence in driving the Perez vehicle. Adolfo emphasizes, and I recognize, that under Art. I, § 8, cl. 4, of the Constitution, Congress has possessed the power to establish uniform Laws on the subject of Bankruptcies throughout the United States; that, of course, this power, when exercised, as it has been since 1800, is exclusive, New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U. S. 656, 661 (1876), and unrestricted and paramount, International Shoe Co. v. Pinkus, 278 U. S. 261, 265 (1929); that one of the purposes of the Bankruptcy Act is to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh . . . , Williams v. United States Fidelity & Guaranty Co., 236 U. S. 549, 554-555 (1915); and that a bankrupt by his discharge receives a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre&emul;xisting debt, Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). From these general and accepted principles it is argued that § 28-1163 (B), with its insistence upon post-discharge payment as a condition for license and registration restoration, is violative of the Bankruptcy Act and, thus, of the Supremacy Clause. As Mr. Perez acknowledges in his brief here, the argument is not new. It was raised with respect to a New York statute in Reitz v. Mealey, 314 U. S. 33 (1941), and was rejected there by a five-to-four vote: The use of the public highways by motor vehicles, with its consequent dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process. . . . ..... The penalty which § 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather it is an enforcement of permissible state policy touching highway safety. 314 U. S., at 36-37. Left specifically unanswered in that case, but acknowledged as a serious question, 314 U. S., at 38, was the claim that interim amendments of the statutes gave the creditor control over the initiation and duration of the suspension and thus violated the Bankruptcy Act. The dissenters, speaking through MR. JUSTICE DOUGLAS, concluded that that constitutional issue cannot be escaped. . . unless we are to overlook the realities of collection methods. 314 U. S., at 43. Nine years ago, the same argument again was advanced, this time with respect to Utah's Motor Vehicle Safety Responsibility Act, and again was rejected. Kesler v. Department of Public Safety, 369 U. S. 153, 158-174 (1962). There, Utah's provisions relating to duration of suspension and restoration, more stringent than those of New York, were challenged. It was claimed that the statutes made the State a collecting agent for the creditor rather than furthering an interest in highway safety, and that suspension that could be perpetual only renders the collection pressure more effective. 369 U. S., at 169. There was a troublesome jurisdictional issue in the case, the decision as to which was later overruled, Swift & Co. v. Wickham, 382 U. S. 111, 124-129 (1965), but on the merits the Court, by a five-to-three vote, sustained all the Utah statutes then under attack: [4] But the lesson Zavelo [v. Reeves, 227 U. S. 625 (1913)] and Spalding [v. New York ex rel. Backus, 4 How. 21 (1845)] teach is that the Bankruptcy Act does not forbid a State to attach any consequence whatsoever to a debt which has been discharged. The Utah Safety Responsibility Act leaves the bankrupt to some extent burdened by the discharged debt. Certainly some inroad is made on the consequences of bankruptcy if the creditor can exert pressure to recoup a discharged debt, or part of it, through the leverage of the State's licensing and registration power. But the exercise of this power is deemed vital to the State's well-being, and, from the point of view of its interests, is wholly unrelated to the considerations which propelled Congress to enact a national bankruptcy law. There are here overlapping interests which cannot be uncritically resolved by exclusive regard to the money consequences of enforcing a widely adopted measure for safeguarding life and safety. . . . At the heart of the matter are the complicated demands of our federalism. Are the differences between the Utah statute and that of New York so significant as to make a constitutionally decisive difference? A State may properly decide, as forty-five have done, that the prospect of a judgment that must be paid in order to regain driving privileges serves as a substantial deterrent to unsafe driving. We held in Reitz that it might impose this requirement despite a discharge, in order not to exempt some drivers from appropriate protection of public safety by easy refuge in bankruptcy.. . . To whatever extent these provisions make it more probable that the debt will be paid despite the discharge, each no less reflects the State's important deterrent interest. Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia; we do not believe Utah's identical statute conflicts with it either. Utah is not using its police power as a devious collecting agency under the pressure of organized creditors. Victims of careless car drivers are a wholly diffused group of shifting and uncertain composition, not even remotely united by a common financial interest. The Safety Responsibility Act is not an Act for the Relief of Mulcted Creditors. It is not directed to bankrupts as such. Though in a particular case a discharged bankrupt who wants to have his rightfully suspended license and registration restored may have to pay the amount of a discharged debt, or part of it, the bearing of the statute on the purposes served by bankruptcy legislation is essentially tangential. 369 U. S., at 170-174 (footnotes omitted). MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, dissented on the ground that Utah Code Ann. § 41-12-15 (1953), essentially identical to Arizona's § 28-1163 (B), operated to deny the judgment debtor the federal immunity given him by § 17 of the Bankruptcy Act and, hence, violated the Supremacy Clause. 369 U. S., at 182-185. The Perezes in their brief, p. 7, acknowledge that the Arizona statutes challenged here are not unlike the Utah ones discussed in Kesler.  Accordingly, Adolfo Perez is forced to urge that Reitz and the remaining portion of Kesler that bears upon the subject be overruled. The Court bows to that argument. I am not prepared to overrule those two cases and to undermine their control over Adolfo Perez' posture here. I would adhere to the rulings and I would hold that the States have an appropriate and legitimate concern with highway safety; that the means Arizona has adopted with respect to one in Adolfo's position (that is, the driver whose negligence has caused harm to others and whose judgment debt based on that negligence remains unsatisfied) in its attempt to assure driving competence and care on the part of its licensees, as well as to protect others, is appropriate state legislation; and that the Arizona statute, like its Utah counterpart, despite the tangential effect upon bankruptcy, does not operate in derogation of the Bankruptcy Act or conflict with it to the extent it may rightly be said to violate the Supremacy Clause. Other factors of significance are also to be noted: 1. The Court struggles to explain away the parallel District of Columbia situation installed by Congress itself. Section 40-464 of the D. C. Code Ann. (1967) in all pertinent parts is identical with Arizona's § 28-1163 (B). The only difference is in the final word, namely, article in the Arizona statute and chapter in the District's. The District of Columbia statute was enacted as § 48 of Pub. Law 365 of May 25, 1954, effective one year later, 68 Stat. 132. This is long after the Bankruptcy Act was placed on the books and, indeed, long after this Court's decision in Lewis v. Roberts, 267 U. S. 467 (1925), that a personal injury judgment is a provable claim in bankruptcy. Surely, as the Court noted in Kesler, 369 U. S., at 173-174, Congress had no thought of amending the Bankruptcy Act when it adopted this law for the District of Columbia. See Lee v. England, 206 F. Supp. 957 (DC 1962). Congress must have regarded the two statutes as consistent and compatible, and cannot have thought otherwise for the last 35 years. [5] If the statutes truly are in tension, then I would suppose that the later one, that is, § 40-464, would be the one to prevail. Gibson v. United States, 194 U. S. 182, 192 (1904). But, if so, we then have something less than the uniform Laws on the subject of Bankruptcies throughout the United States that Art. I, § 8, cl. 4, of the Constitution commands, for the law would be one way in Arizona (and, by the present overruling of Reitz and Kesler, in New York and in Utah) and the other way in the District of Columbia. Unfortunately, such is the dilemma in which the Court's decision today leaves us. 2. Arizona's § 28-1163 (B) also has its counterparts in the statutes of no less than 44 other States. [6] It is, after all, or purports to be, a uniform Act. I suspect the Court's decision today will astonish those members of the Congress who were responsible for the District of Columbia Code provision, and will equally astonish the legislatures of those 44 States that absorbed assurance from Reitz and Kesler that the provision withstands constitutional attack. 3. The Court rationalizes today's decision by saying that Kesler went beyond Reitz and that the present case goes beyond Kesler, and that that is too much. It would justify this by noting the Arizona Supreme Court's characterization of the Arizona statute as one for the protection of the public from financial hardship and by concluding, from this description, that the statute is not a public highway safety measure, but rather a financial one protective, I assume the implication is, of insurance companies. The Arizona court's characterization of its statute, I must concede, is not a fortunate one. However, I doubt that that court, in evolving that description, had any idea of the consequences to be wrought by this Court's decision today. I am not willing to say that the description in Schecter v. Killingsworth, 93 Ariz. 273, 380 P. 2d 136 (1963), embraced the only purpose of the State's legislation. Section 28-1163 (B) is a part of the State's Motor Vehicle Safety Responsibility Act and does not constitute an isolated subchapter of that Act concerned only with financial well-being of the victims of drivers' negligence. In any event, as the Court's opinion makes clear, the decision today would be the same however the Arizona court had described its statute. 4. While stare decisis is no immutable principle, [7] as a glance at the Court's decisions over the last 35 years, or over almost any period for that matter, will disclose, it seems to me that the principle does have particular validity and application in a situation such as the one confronting the Court in this case. Here is a statute concerning motor vehicle responsibility, a substantive matter peculiarly within the competence of the State rather than the National Government. Here is a serious and conscientious attempt by a State to legislate and do something about the problem that, in terms of death and bodily injury and adverse civilian effect, is so alarming. Here is a statute widely adopted by the several States and legitimately assumed by the lawmakers of those States to be consistent with the Bankruptcy Act, an assumption rooted in positive, albeit divided, decision by this Court, not once, but twice. And here is a statute the Congress itself, the very author of the Bankruptcy Act, obviously considered consistent therewith. I fear that the Court today makes stare decisis meaningless and downgrades it to the level of a tool to be used or cast aside as convenience dictates. I doubt if Justices Roberts, Stone, Reed, Frankfurter, Murphy, Warren, Clark, HARLAN, BRENNAN, and STEWART, who constituted the respective majorities on the merits in Reitz and Kesler, were all that wrong. 5. Adolfo's affidavit protestation of hardship goes no further than to assert a resulting reliance upon friends and neighbors or upon public transportation or upon walking to cover the seven miles from his home to his place of work; this is inconvenience, perhaps, even in this modern day when we are inclined to equate convenience with necessity and to eschew what prior generations routinely accepted as part of the day's labor, but it falls far short of the great harm and irreparable injury that he otherwise asserts only in general and conclusory terms. Perez' professed inconvenience stands vividly and starkly in contrast with his victims' injuries. But as is so often the case, the victim, once damaged, is seemingly beyond concern. What seems to become important is the perpetrator's inconvenience. 6. It is conceded that Arizona constitutionally could prescribe liability insurance as a condition precedent to the issuance of a license and registration.",Adolfo Perez
+43,108350,1,10,"Emma Perez' posture is entirely different. Except for possible emotional strain resulting from her husband's predicament, she was in no way involved in the Pinkerton accident. She was not present when it occurred and no negligence or nonfeasance on her part contributed to it. Emma thus finds herself in a position where, having done no wrong, she nevertheless is deprived of her operator's license. This comes about because the Perez vehicle concededly was community property under § 25-211 (A), and because, for some reason, the judgment was confessed as to her as well as against her husband. As one amicus brief describes it, Emma, a fault-free driver, is without her license solely because she is the impecunious wife of an impecunious, negligent driver in a community property state. At this point a glance at the Arizona community property system perhaps is indicated. Emma Perez was a proper nominal defendant in the Pinkerton lawsuit, see Donato v. Fishburn, 90 Ariz. 210, 367 P. 2d 245 (1961), but she was not a necessary party there. First National Bank v. Reeves, 27 Ariz. 508, 517, 234 P. 556, 560 (1925); Bristol v. Moser, 55 Ariz. 185, 190-191, 99 P. 2d 706, 709 (1940). However, a judgment against a marital community based upon the husband's tort committed without the wife's knowledge or consent does not bind her separate property. Ruth v. Rhodes, 66 Ariz. 129, 138, 185 P. 2d 304, 310 (1947). The judgment would, of course, bind the community property vehicle to the extent permitted by Arizona law. See § 33-1124. In Arizona during coverture personal property may be disposed of only by the husband. § 25-211 (B). The community personalty is subject to the husband's dominance in management and control. Mortensen v. Knight, 81 Ariz. 325, 334, 305 P. 2d 463, 469 (1956). The wife has no power to make contracts binding the common property. § 25-214 (A). Her power to contract is limited to necessaries for herself and the children. § 25-215. Thus, as the parties appear to agree, she could neither enter into a contract for the purchase of an automobile nor acquire insurance upon it except by use of her separate property. The Court of Appeals ruled that Mrs. Perez' posture, as the innocent wife who had no connection with the negligent conduct that led to the confession and entry of judgment, was, under the logic of Kesler and Reitz, a distinction without a significant difference even though she had no alternative. 421 F. 2d 619, 622-623. The court opined that the spouse can acquire an automobile with her separate funds and that negligent operation of it on separate business would then not call into question the liability of the other spouse. It described Emma's legal status as closely analogous to that of the automobile owner who permits another person to drive, and it regarded as authority cases upholding a State's right to revoke the owner's license and registration after judgment had been entered against him and remains unsatisfied. The husband was described, under Arizona law, as the managing agent of the wife in the control of the community automobile, and the driver's licenses of both husband and wife are an integral part of the ball of wax, which is the basis of the Arizona community property laws. The loss of her license is the price an Arizona wife must pay for negligent driving by her husband of the community vehicle when the resulting judgment is not paid. 421 F. 2d, at 624. For what it is worth, Emma's affidavit is far more persuasive of hardship than Adolfo's. She relates the family automobile to the children and their medical needs and to family purchasing at distant discount stores. But I need not, and would not, decide her case on the representations in her affidavit. I conclude that the reasoning of the Court of Appeals, in its application to Emma Perez and her operator's license, does not comport with the purpose and policy of the Bankruptcy Act and that it effects a result at odds with the Supremacy Clause. Emma's subordinate position with respect to the community's personal property, and her complete lack of connection with the Pinkerton accident and with the negligence that occasioned it, are strange accompaniments for the deprival of her operator's license. The nexus to the state police power, claimed to exist because of her marriage to the negligent Adolfo and the community property character of the accident vehicle, is, for me, elusive and unconvincing. The argument based on Arizona's appropriate concern with highway safety, that prompts me to adhere to the Reitz-Kesler rationale for Adolfo, is drained of all force and persuasion when applied to the innocent Emma. Despite the underlying community property legal theory, Emma had an incident of ownership in the family automobile only because it was acquired during coverture. She had no control over Adolfo's use of the vehicle and she could not forbid his use as she might have been able to do were it her separate property. Thus, the state purpose in deterring the reckless driver and his unsafe driving has only undeserved punitive application to Emma. She is personally penalized not only with respect to the operation of the Perez car but also with respect to any automobile. I therefore would hold that under these circumstances the State's action, under § 28-1163 (B), in withholding from Emma her operator's license is not, within the language of Reitz, an appropriate means for Arizona to insure competence and care on the part of [Emma] and to protect others using the highways, 314 U. S., at 36, and that it interferes with the paramount federal interest in her bankruptcy discharge and violates the Supremacy Clause. [For Appendix to opinion of BLACKMUN, J., see post, p. 672.]",Emma Perez
+44,112041,1,3,"As we see it, § 504 does not demand inquiry into whether factors other than mental illness rendered an individual veteran's drinking so entirely beyond his control as to negate any degree of `willfulness' where Congress and the Veterans' Administration have reasonably determined for purposes of the veterans' benefits statutes that no such factors exist. Ante, at 551. As I see it, § 504 demands precisely the inquiry the Court says is unnecessary. While Congress certainly has the authority to determine that primary alcoholism always should be attributed to willful misconduct, I find no support whatever for the Court's conclusion that Congress made that determination when it amended § 1662(a) in 1977. The Court is correct, of course, see ante, at 546, when it says that we must assume that Congress intended the term willful misconduct in § 1662(a)(1) to have the same meaning it had been given in other veterans' benefits statutes. Indeed, the legislative history indicates that Congress did inten[d] that the same standards be applied as are utilized in determining eligibility for other VA programs under title 38. S. Rep. No. 95-468, pp. 69-70 (1977). If § 504 had not been amended one year later to cover specifically all executive agency programs, including the VA's benefits programs, see Pub. L. 95-602, §§ 119, 122(d)(2), 92 Stat. 2982, 2987, 29 U. S. C. § 794, there would be little reason to question the application of the VA's interpretation of the willful-misconduct regulation to § 1662(a)(1). But the Court goes further and finds that Congress' reference to the VA's willful-misconduct regulation in amending § 1662(a) is a congressional adoption of the VA's rule. The Court transforms Congress' uncontroversial statement that the willful-misconduct regulation should be given the same meaning throughout the statutory scheme into a specifi[c] determin[ation] by Congress that primary alcoholics are presumed to have engaged in willful misconduct. See ante, at 551, n. 11; see also ante, at 547 (Congress' 1977 determination that primary alcoholism is not the sort of disability that warrants an exemption); ante, at 548 (Congress had  `narrow, precise, and specific'  intent to exclude primary alcoholics in enacting § 1662(a)(1)); ante, at 551 (original congressional intent [in amending § 1662(a)] that primary alcoholics not be excused from the 10-year delimiting period). This magical transformation is the linchpin in the Court's analysis, for unless Congress itself actually took a position in 1977 endorsing the association of primary alcoholism with willful misconduct, the subsequent amendment of § 504 in 1978 to include benefit programs like the VA's would simply be read to impose new constraints on the VA's treatment of alcoholics. There is nothing whatever that is inconsistent about Congress' willingness, in 1977, to allow the VA to apply its own rules in determining which alcoholic veterans were entitled to benefits, and its decision, one year later, to require such determinations to comply with the antidiscrimination provisions of § 504 then being amended. In order to escape § 504's requirements, the majority must conclude that in 1977 Congress defined a primary alcoholic as not otherwise qualified, within the meaning of § 504, for the extension of time available under § 1662(a)(1). The language of § 1662(a)(1) itself merely establishes that a willfully incurred disability, as a general matter, does not entitle a veteran to the extension of time. And the Senate Report, upon which the Court exclusively relies, makes only passing reference to the relevant regulations — regulations which encompass the VA's entire policy on the applicability of the willful-misconduct provisions, not just the application of that term to alcoholism. Finally, even those portions of the regulations expressly addressed to alcoholism do not state that primary alcoholism is to be equated with willful misconduct. That interpretation is derived from a 1964 Administrator's Decision, which itself discusses the VA's irrebuttable presumption only briefly. Administrator's Decision, Veterans' Administration No. 988, Interpretation of the Term Willful Misconduct as Related to the Residuals of Chronic Alcoholism 1 (1964). [3] See 37 Fed. Reg. 20335, 20336 (1972) (proposing regulation and announcing that it was intended to incorporate principles of the 1964 administrative issue). Surely something more than two sentences quoted from a Senate Report should be required before we interpret general statutory language to conflict with the most natural reading of subsequent specific legislation. It is only the Court's strained reading of § 1662(a)(1) to embrace a congressional determination that primary alcoholism is not the sort of disability that warrants an exemption, ante, at 547, that leads the Court to reject as a disfavored implicit repeal § 504's requirement that qualifications for the exemption be determined on a case-by-case basis. The  `basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum,'  ante, at 547-548, has no application here, where the earlier enactment is not narrowly or specifically addressed to the matter treated generally in the subsequent enactment: federal agencies' treatment of alcoholics. I have been no more successful than the VA or the Court in turning up evidence that Congress expressly considered, or intended, in amending § 1662 (a), to adopt legislatively the VA's presumption that primary alcoholism always is attributable to willful misconduct. I therefore see no reason to defer to the VA's rule in interpreting a subsequent and entirely separate congressional enactment that the VA has not been empowered to administrate.",The Court explains:
+45,106591,2,1,"Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief [8] only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. (1) By ground, we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ground than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, cf. Wilson v. Cook, 327 U. S. 474, 481; Dewey v. Des Moines, 173 U. S. 193, 198, or be couched in different language, United States v. Jones, 194 F. Supp. 421 (D. C. D. Kan. 1961) (dictum), aff'd mem., 297 F. 2d 835 (C. A. 10th Cir. 1962), or vary in immaterial respects, Stilwell v. United States Marshals, 192 F. 2d 853 (C. A. 4th Cir. 1951) ( per curiam ). Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. (2) The prior denial must have rested on an adjudication of the merits of the ground presented in the subsequent application. See Hobbs v. Pepersack, 301 F. 2d 875 (C. A. 4th Cir. 1962). This means that if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held. See Motley v. United States, 230 F. 2d 110 (C. A. 5th Cir. 1956); Hallowell v. United States, 197 F. 2d 926 (C. A. 5th Cir. 1952). (3) Even if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground. If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair evidentiary hearing recently in Townsend v. Sain, supra , and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is the ends of justice and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground.",successive motions on grounds previously heard and determined.
+46,106591,2,2,"No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading. See p. 11, supra. To say that it is open to the respondent to show that a second or successive application is abusive is simply to recognize that habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, 344 U. S. 561, 573 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. Fay v. Noia, supra, at 438. Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay. We need not pause over the test governing whether a second or successive application may be deemed an abuse by the prisoner of the writ or motion remedy. The Court's recent opinions in Fay v. Noia, supra, at 438-440, and Townsend v. Sain, supra, at 317, deal at length with the circumstances under which a prisoner may be foreclosed from federal collateral relief. The principles developed in those decisions govern equally here. A final qualification, applicable to both A and B of the foregoing discussion, is in order. The principles governing both justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power—and, if the ends of justice demand, the duty—to reach the merits. Cf. Townsend v. Sain, supra, at 312, 318. We are confident that this power will be soundly applied.",the successive application claimed to be an abuse of remedy.
+47,84909,1,1,"LIVINGSTON, J. thought that leave ought not to be given, on account of the delay it would produce. He had found a practice established here of receiving such affidavits; but he did not know of any case in which time had been given to produce them; and he would not consent to give it now. The case was brought up to last term. The party ought to have come prepared to support the jurisdiction. This being the last day of the term, and no affidavits having been produced, The writ of error was dismissed, this court having no jurisdiction in the case.","P. Boyd, for the defendant in error. The court granted."
+48,106968,1,1,"I agree with that part of the Court's opinion holding that the Louisiana breach-of-the-peace statute [1] on its face and as construed by the State Supreme Court is so broad as to be unconstitutionally vague under the First and Fourteenth Amendments. See Winters v. New York, 333 U. S. 507, 509-510. The statute does not itself define the conditions upon which people who want to express views may be allowed to use the public streets and highways, but leaves this to be defined by law enforcement officers. The statute therefore neither forbids all crowds to congregate and picket on streets, nor is it narrowly drawn to prohibit congregating or patrolling under certain clearly defined conditions while preserving the freedom to speak of those who are using the streets as streets in the ordinary way that the State permits. A state statute of either of the two types just mentioned, regulating conduct —patrolling and marching—as distinguished from speech, would in my judgment be constitutional, subject only to the condition that if such a law had the effect of indirectly impinging on freedom of speech, press, or religion, it would be unconstitutional if under the circumstances it appeared that the State's interest in suppressing the conduct was not sufficient to outweigh the individual's interest in engaging in conduct closely involving his First Amendment freedoms. As this Court held in Schneider v. State, 308 U. S. 147, 161: Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights. See also, e. g., Brotherhood of R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1; NAACP v. Button, 371 U. S. 415; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449; Martin v. City of Struthers, 319 U. S. 141; Cantwell v. Connecticut, 310 U. S. 296; Lovell v. City of Griffin, 303 U. S. 444; Grosjean v. American Press Co., 297 U. S. 233. As I discussed at length in my dissenting opinion in Barenblatt v. United States, 360 U. S. 109, 141-142, when passing on the validity of a regulation of conduct, which may indirectly infringe on free speech, this Court does, and I agree that it should, weigh the circumstances in order to protect, not to destroy, freedom of speech, press, and religion. The First and Fourteenth Amendments, I think, take away from government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes. This does not mean, however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property. See Labor Board v. Fruit & Vegetable Packers & Warehousemen, 377 U. S. 58, 76 (concurring opinion). Were the law otherwise, people on the streets, in their homes and anywhere else could be compelled to listen against their will to speakers they did not want to hear. Picketing, though it may be utilized to communicate ideas, is not speech, and therefore is not of itself protected by the First Amendment. Hughes v. Superior Court, 339 U. S. 460, 464-466; Giboney v. Empire Storage & Ice Co., 336 U. S. 490; Bakery & Pastry Drivers & Helpers v. Wohl, 315 U. S. 769, 775-777 (DOUGLAS, J., concurring). However, because Louisiana's breach-of-peace statute is not narrowly drawn to assure nondiscriminatory application, I think it is constitutionally invalid under our holding in Edwards v. South Carolina, 372 U. S. 229. See also Musser v. Utah, 333 U. S. 95, 96-97. Edwards, however, as I understand it, did not hold that either private property owners or the States are constitutionally required to supply a place for people to exercise freedom of speech or assembly. See Bell v. Maryland, 378 U. S. 226, 344-346 (dissenting opinion). What Edwards as I read it did hold, and correctly I think, was not that the Federal Constitution prohibited South Carolina from making it unlawful for people to congregate, picket, and parade on or near that State's capitol grounds, but rather that in the absence of a clear, narrowly drawn, nondiscriminatory statute prohibiting such gatherings and picketing, South Carolina could not punish people for assembling at the capitol to petition for redress of grievances. In the case before us Louisiana has by a broad, vague statute given policemen an unlimited power to order people off the streets, not to enforce a specific, nondiscriminatory state statute forbidding patrolling and picketing, but rather whenever a policeman makes a decision on his own personal judgment that views being expressed on the street are provoking or might provoke a breach of the peace. Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat. Compare Yick Wo v. Hopkins, 118 U. S. 356, 369-370. This kind of statute provides a perfect device to arrest people whose views do not suit the policeman or his superiors, while leaving free to talk anyone with whose views the police agree. See Feiner v. New York, 340 U. S. 315, 321 (dissenting opinion); cf. Peters v. Hobby, 349 U. S. 331, 349-350 (concurring opinion); Barsky v. Board of Regents, 347 U. S. 442, 463-464 (dissenting opinion); Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 217-218 (dissenting opinion); Ludecke v. Watkins, 335 U. S. 160, 173 (dissenting opinion). In this situation I think Edwards v. South Carolina and other such cases invalidating statutes for vagueness are controlling. Moreover, because the statute makes an exception for labor organizations and therefore tries to limit access to the streets to some views but not others, I believe it is unconstitutional for the reasons discussed in Part II of this opinion, dealing with the street-obstruction statute, infra. For all the reasons stated I concur in reversing the conviction based on the breach-of-peace statute.",the breach-of-peace conviction.
+49,106968,1,2,"The Louisiana law against obstructing the streets and sidewalks, [2] while applied here so as to convict Negroes for assembling and picketing on streets and sidewalks for the purpose of publicly protesting racial discrimination, expressly provides that the statute shall not bar picketing and assembly by labor unions protesting unfair treatment of union members. I believe that the First and Fourteenth Amendments require that if the streets of a town are open to some views, they must be open to all. It is worth noting in passing that the objectives of labor unions and of the group led by Cox here may have much in common. Both frequently protest discrimination against their members in the matter of employment. Compare New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552, 561. This Louisiana law opens the streets for union assembly, picketing, and public advocacy, while denying that opportunity to groups protesting against racial discrimination. As I said above, I have no doubt about the general power of Louisiana to bar all picketing on its streets and highways. Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment. [3] Moreover, as the Court points out, city officials despite this statute apparently have permitted favored groups other than labor unions to block the streets with their gatherings. For these reasons I concur in reversing the conviction based on this law.",the obstructing-public-passages conviction.
+50,106968,1,3,"I would sustain the conviction of appellant for violation of Louisiana's Rev. Stat. § 14:401 (Cum. Supp. 1962), which makes it an offense for anyone, under any conditions, to picket or parade near a courthouse, residence or other building used by a judge, juror, witness, or court officer, with the intent of influencing any of them. [4] Certainly the record shows beyond all doubt that the purpose of the 2,000 or more people who stood right across the street from the courthouse and jail was to protest the arrest of members of their group who were then in jail. As the Court's opinion states, appellant Cox so testified. Certainly the most obvious reason for their protest at the courthouse was to influence the judge and other court officials who used the courthouse and performed their official duties there. The Court attempts to support its holding by its inference that the Chief of Police gave his consent to picketing the courthouse. But quite apart from the fact that a police chief cannot authorize violations of his State's criminal laws, [5] there was strong, emphatic testimony that if any consent was given it was limited to telling Cox and his group to come no closer to the courthouse than they had already come without the consent of any official, city, state, or federal. And there was also testimony that when told to leave appellant Cox defied the order by telling the crowd not to move. I fail to understand how the Court can justify the reversal of this conviction because of a permission which testimony in the record denies was given, which could not have been authoritatively given anyway, and which even if given was soon afterwards revoked. While I agree that the record does not show boisterous or violent conduct or indecent language on the part of the demonstrators, the ample evidence that this group planned the march on the courthouse and carried it out for the express purpose of influencing the courthouse officials in the performance of their official duties brings this case squarely within the prohibitions of the Louisiana statute and I think leaves us with no alternative but to sustain the conviction unless the statute itself is unconstitutional, and I do not believe that this statute is unconstitutional, either on its face or as applied. This statute, like the federal one which it closely resembles, [6] was enacted to protect courts and court officials from the intimidation and dangers that inhere in huge gatherings at courthouse doors and jail doors to protest arrests and to influence court officials in performing their duties. The very purpose of a court system is to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures. Justice cannot be rightly administered, nor are the lives and safety of prisoners secure, where throngs of people clamor against the processes of justice right outside the courthouse or jailhouse doors. The streets are not now and never have been the proper place to administer justice. Use of the streets for such purposes has always proved disastrous to individual liberty in the long run, whatever fleeting benefits may have appeared to have been achieved. And minority groups, I venture to suggest, are the ones who always have suffered and always will suffer most when street multitudes are allowed to substitute their pressures for the less glamorous but more dependable and temperate processes of the law. Experience demonstrates that it is not a far step from what to many seems the earnest, honest, patriotic, kind-spirited multitude of today, to the fanatical, threatening, lawless mob of tomorrow. And the crowds that press in the streets for noble goals today can be supplanted tomorrow by street mobs pressuring the courts for precisely opposite ends. Minority groups in particular need always to bear in mind that the Constitution, while it requires States to treat all citizens equally and protect them in the exercise of rights granted by the Federal Constitution and laws, does not take away the State's power, indeed its duty, to keep order and to do justice according to law. Those who encourage minority groups to believe that the United States Constitution and federal laws give them a right to patrol and picket in the streets whenever they choose, in order to advance what they think to be a just and noble end, do no service to those minority groups, their cause, or their country. I am confident from this record that this appellant violated the Louisiana statute because of a mistaken belief that he and his followers had a constitutional right to do so, because of what they believed were just grievances. But the history of the past 25 years if it shows nothing else shows that his group's constitutional and statutory rights have to be protected by the courts, which must be kept free from intimidation and coercive pressures of any kind. Government under law as ordained by our Constitution is too precious, too sacred, to be jeopardized by subjecting the courts to intimidatory practices that have been fatal to individual liberty and minority rights wherever and whenever such practices have been allowed to poison the streams of justice. I would be wholly unwilling to join in moving this country a single step in that direction.",the conviction for picketing near a courthouse.
+51,112777,2,1,"According to the Court, [1] § 5(b) of the 1965 Act is best read as having superseded only positive enactments by legislatures or administrative agencies that mandate particular warning labels. Ante, at 518-519 (emphasis added). In essence, the Court reads § 5(b)'s critical language No statement relating to smoking and health . . . shall be required to mean No particular statement relating to smoking and health shall be required. The Court reasons that because common-law duties do not require cigarette manufacturers to include any particular statement in their advertising, but only some statement warning of health risks, those duties survive the 1965 Act. I see no basis for this element of particularity. To require a warning about cigarette health risks is to require a statement relating to smoking and health. If the presumption against . . . pre-emption, ante, at 518, requires us to import limiting language into the 1965 Act, I do not see why it does not require us to import similarly limiting language into the 1969 Act—so that a requirement . . . based on smoking and health . . . with respect to advertising means only a specific requirement, and not just general, noncigarette-specific duties imposed by tort law. The divergent treatment of the 1965 Act cannot be justified by the Act's statement of purposes, which, as the Court notes, expresses concern with diverse, nonuniform, and confusing cigarette labeling and advertising regulations.  15 U. S. C. § 1331(2) (emphasis added). That statement of purposes was left untouched by Congress in 1969, and thus should be as restrictive of the scope of the later § 5(b) as the Court believes it is of the scope of the earlier one. [2] To the extent petitioner's claims are premised specifically on respondents' failure (during the period in which the 1965 Act was in force) to include in their advertising any statement relating to smoking and health, I would find those claims, no less than the similar post-1969 claims, pre-empted. In addition, for reasons I shall later explain, see Part III, infra, I would find pre-emption even of those claims based on respondents' failure to make health-related statements to consumers outside their advertising. However, since § 5(b) of the 1965 Act enjoins only those laws that require statement[s] in cigarette advertising, those of petitioner's claims that, if accepted, would penalize statements voluntarily made by the cigarette companies must be deemed to survive. As these would appear to include petitioner's breach-ofexpress-warranty and intentional fraud and misrepresentation claims, I concur in the Court's judgment in this respect.",Pre-1969 Failure-to-Warn Claims
+52,112777,2,2,"In the context of this case, petitioner's breach-of-expresswarranty claim necessarily embodies an assertion that respondents' advertising and promotional materials made statements to the effect that cigarette smoking is not unhealthy. Making such statements civilly actionable certainly constitutes an advertising requirement or prohibition. . . based on smoking and health. The plurality appears to accept this, but finds that liability for breach of express warranty is not imposed under State law within the meaning of § 5(b) of the 1969 Act. [R]ather, it says, the duty is best understood as undertaken by the manufacturer itself. Ante, at 526. I cannot agree. When liability attaches to a particular promise or representation, it attaches by law. For the making of a voluntary promise or representation, no less than for the commission of an intentional tort, it is the background law against which the act occurs, and not the act itself, that supplies the element of legal obligation. See Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 429 (1934); N. J. Stat. Ann. §§ 12A:2-313(1), 12A:2-714, and 12A:2-715 (West 1962) (providing for enforcement of express warranties). Of course, New Jersey's law of express warranty attaches legal consequences to the cigarette manufacturer's voluntary conduct in making the warranty, and in that narrow sense, I suppose, the warranty obligation can be said to be undertaken by the manufacturer. But on that logic it could also be said that the duty to warn about the dangers of cigarettes is undertaken voluntarily by manufacturers when they choose to sell in New Jersey; or, more generally, that any legal duty imposed on volitional behavior is not one imposed by law. The plurality cites no authority for its curious view, which is reason enough to doubt it. In addition, however, we rejected this very argument last Term in Norfolk & Western R. Co. v. Train Dispatchers , where we construed a federal exemption from the antitrust laws and from all other law, 49 U. S. C. § 11341(a), to include an exemption from contract obligations. We observed, in a passage flatly inconsistent with the plurality's analysis today, that [a] contract has no legal force apart from the law that acknowledges its binding character.  499 U. S., at 130. Cf. id., at 139 (Stevens, J., dissenting). I would find petitioner's claim for breach of express warranty pre-empted by § 5(b) of the 1969 Act.",Post-1969 Breach-of-Express-Warranty Claims
+53,112777,2,3,"According to the plurality, at least one of petitioner's intentional fraud and misrepresentation claims survives § 5(b) of the 1969 Act because the common-law duty underlying that claim is not based on smoking and health within the meaning of the Act. See ante, at 528-529. If I understand the plurality's reasoning, it proceeds from the implicit assumption that only duties deriving from laws that are specifically directed to smoking and health, or that are uniquely crafted to address the relationship between cigarette companies and their putative victims, fall within § 5(b) of the Act, as amended. Given that New Jersey's tort-law duty not to deceive, ante, at 529, is a general one, applicable to all commercial actors and all kinds of commerce, it follows from this assumption that § 5(b) does not pre-empt claims based on breaches of that duty. This analysis is suspect, to begin with, because the plurality is unwilling to apply it consistently. As Justice Blackmun cogently explains, see ante, at 543 (opinion concurring in part and dissenting in part), if New Jersey's common-law duty to avoid false statements of material fact—as applied to the cigarette companies' behavior—is not based on smoking and health, the same must be said of New Jersey's common-law duty to warn about a product's dangers. Each duty transcends the relationship between the cigarette companies and cigarette smokers; neither duty was specifically crafted with an eye toward smoking and health. None of the arguments the plurality advances to support its distinction between the two is persuasive. That Congress specifically preserved, in both the 1965 and 1969 Acts, the Federal Trade Commission's authority to police deceptive advertising practices, see § 5(c) of the 1965 Act; § 7(b) of the 1969 Act; ante, at 529, does not suggest that Congress intended comparable state authority to survive § 5(b). In fact, at least in the 1965 Act (which generally excluded federal as well as state regulation), the exemption suggested that § 5(b) was broad enough to reach laws governing fraud and misrepresentation. And it is not true that the States' laws governing fraud and misrepresentation in advertising impose identical legal standards, whereas their laws concerning the warning necessary to render a product `reasonably safe'  are quite diverse, ibid. The question whether an ad featuring a glamorous, youthful smoker with pearly-white teeth is misrepresentative would almost certainly be answered differently from State to State. See ante, at 527 (discussing FTC's initial cigarette advertising rules). Once one is forced to select a consistent methodology for evaluating whether a given legal duty is based on smoking and health, it becomes obvious that the methodology must focus not upon the ultimate source of the duty ( e. g., the common law) but upon its proximate application. Use of the ultimate source approach ( i. e., a legal duty is not based on smoking and health unless the law from which it derives is directed only to smoking and health) would gut the statute, inviting the very diverse, nonuniform, and confusing cigarette . . . advertising regulations Congress sought to avoid. 15 U. S. C. § 1331(2). And the problem is not simply the common law: Requirements could be imposed by state executive agencies as well, so long as they were operating under a general statute authorizing their supervision of commercial advertising or unfair trade practices. New Jersey and many other States have such statutes already on the books. E. g., N. J. Stat. Ann. § 56:8-1 et seq. (West 1989); N. Y. Gen. Bus. Law § 349 et seq. (McKinney 1988 and Supp. 1992); Texas Bus. & Com. Code Ann. § 17.01 et seq. (1987 and Supp. 1992). I would apply to all petitioner's claims what I have called a proximate application methodology for determining whether they invoke duties based on smoking and health— I would ask, that is, whether, whatever the source of the duty, it imposes an obligation in this case because of the effect of smoking upon health. On that basis, I would find petitioner's failure-to-warn and misrepresentation claims both pre-empted.",Post-1969 Fraud and Misrepresentation Claims
+54,90615,1,1,"Supreme Court of the United States. October Term 1881 CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York. This was an indictment, found in the Circuit Court, on sect. 5431 of the Revised Statutes, by which it is enacted that 'every person who, with intent to defraud, passes, utters, publishes, or sells any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than fifteen years.' Each count of the indictment alleged that the defendant, at a certain time and place, 'feloniously, and with intent to defraud the Bank of the Metropolis, which said bank is a corporation organized under the laws of the State of New York, did pass, utter, and publish upon and to the said Bank of the Metropolis a falsely made, forged, counterfeited, and altered obligation and security of the United States' (which was set forth according to its tenor), against the peace, and contrary to the form of the statute. The defendant, having been tried before Judge Benedict, and convicted by the jury under instructions which required them to be satisfied of the facts alleged, and that the defendant, at the time of uttering the obligations, knew them to be false, forged, counterfeited, and altered, moved in arrest of judgment for the insufficiency of the indictment. At the hearing of this motion before Judge Blatchford and Judge Benedict, they were divided in opinion upon the question, stated in various forms in their certificate, but in substance this: Whether the indictment, setting forth the offence in the language of the statute, without further alleging that the defendant knew the instruments to be false, forged, counterfeited, and altered, was sufficient, after verdict, to warrant judgment thereon. The Solicitor-General for the United States. Mr. William C. Roberts for the defendant.",carll
+55,134749,2,1,"1. Adele Bloch-Bauer died in Vienna in 1925. Her will asked her husband Ferdinand `kindly' to donate, upon his death, six Klimt paintings to the Austrian Gallery (Gallery). A year later, Ferdinand formally assured the Austrian probate court that he would honor his wife's gift. See ante, at 682; 317 F. 3d 954, 959 (CA9 2002); 142 F. Supp. 2d 1187, 1192-1193 (CD Cal. 2001); Brief for Petitioners 6. 2. When the Nazis seized power in Austria in 1938, Ferdinand fled to Switzerland. The Nazis took over Bloch-Bauer assets, and a Nazi lawyer, Dr. Führer, liquidated Ferdinand's estate. Dr. Führer disposed of five of the six Klimt paintings as follows: He sold or gave three to the Gallery; he sold one to the Museum of the City of Vienna; and he kept one. (The sixth somehow ended up in the hands of a private collector who gave it to the Gallery in 1988.) See ante, at 682, 683, n. 3; 317 F. 3d, at 959-960. 3. Ferdinand died in Switzerland in 1945. His will did not mention the paintings, but it did name a residuary legatee, namely, Ferdinand's niece, Maria Altmann, by then an American citizen. As a residuary legatee Altmann received Ferdinand's rights to the paintings. See ante, at 681; 317 F. 3d, at 960, 968; Brief for Petitioners 6-7. 4. In 1948, Bloch-Bauer family members, including Altmann, asked Austria to return a large number of family artworks. At that time Austrian law prohibited export of artworks . . . deemed to be important to Austria's cultural heritage. But Austria granted Altmann permission to export some works of art in return for Altmann's recognition, in a legal agreement, of Gallery ownership of the five Klimt paintings. (The Gallery already had three, the Museum of the City of Vienna transferred the fourth, and the Bloch-Bauer family, having recovered the fifth, which Dr. Führer had kept, donated it to the Gallery.) See ante, at 683; 317 F. 3d, at 960; 142 F. Supp. 2d, at 1193-1195; Brief for Petitioners 6-8; App. 168a. 5. Fifty years later, newspaper stories suggested that in 1948 the Gallery had followed a policy of asserting ownership of Nazi-looted works of art that it did not own. Austria then enacted a restitution statute allowing individuals to reclaim properties that were subject to any such false assertion of ownership or coerced donation in exchange for export permits. The statute also created an advisory board to determine the validity of restitution claims. See ante, at 684; 142 F. Supp. 2d, at 1195-1196; Brief for Petitioners 8. 6. In 1999, Altmann brought claims for restitution of several items including the five Klimt paintings. She told the advisory board that, in 1948, her lawyer had wrongly told her that the Gallery owned the five Klimt paintings irrespective of Nazi looting (title flowing from Adele's will or Ferdinand's statement of donative intent to the probate court). In her view, her 1948 agreement amounted to a coerced donation. The advisory board ordered some items returned (16 Klimt drawings and 19 porcelain settings), but found that the 5 Klimt paintings belonged to the Gallery. See 317 F. 3d, at 960-962; 142 F. Supp. 2d, at 1195-1196; Brief for Petitioners 8, and n. 4. 7. Altmann then brought this lawsuit against the Gallery, an agency or instrumentality of the Austrian Government, in federal court in Los Angeles. She seeks return of the five Klimt paintings.",For present purposes I assume the following:
+56,106393,1,2,"There is also no merit to petitioner's contention that the Committee undertook simply to expose petitioner for the sake of exposure, Watkins v. United States, 354 U. S. 178, 200. The origins of the McClellan Committee, and the products of its endeavors, both belie that challenge, and nothing in the record of the present hearings points to a contrary conclusion. It cannot be gainsaid that legislation, whether civil or criminal, in the labor-management field is within the competence of Congress under its power to regulate interstate commerce. The Committee's general legislative recommendations, made at the conclusion of its First Interim Report, S. Rep. No. 1417, 85th Cong., 2d Sess. 450-453 (1958), were embodied in two remedial statutes enacted by Congress: the Welfare and Pension Plans Disclosure Act of 1958, 72 Stat. 997, and the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519. The enactment of the first of these statutes is attributable primarily to the findings and recommendations of several Subcommittees of the Senate Committee on Labor and Public Welfare, S. Rep. No. 1440, 85th Cong., 2d Sess. 2-3 (1958). But passage of the bill was stimulated by the information then being gathered at hearings of the McClellan Committee. See 104 Cong. Rec. 7054, 7197-7198, 7233, 7337-7338, 7483, 7509-7510, 7521 (1958). The Labor-Management Reporting and Disclosure Act of 1959 was a direct response to the need for remedial federal legislation disclosed by the testimony before the McClellan Committee. This is made clear not by imprecise inferences drawn from legislative history; the proof is in the statute itself. Section 2(b) of the Act declares it to be a finding of Congress from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation. 73 Stat. 519. The Senate and House Reports lean heavily on findings made by the McClellan Committee to justify particular provisions in the proposed bills. See S. Rep. No. 187, 86th Cong., 1st Sess. 2, 6, 9, 10, 13-17 (1959); H. R. Rep. No. 741, 86th Cong., 1st Sess. 1, 2, 6, 9, 11-13, 76, 83 (1959). The resolution which gave birth to this Committee, when considered in light of the fruits of its labors, proves beyond any doubt that the committee members . . . [were] serving as the representatives of the parent assembly in collecting information for a legislative purpose. Watkins v. United States, supra, at 200. This is not a case involving an indefinite and fluctuating delegation which permits a legislative committee in essence, to define its own authority, to choose the direction and focus of its activities. Id., at 205. This Committee was directed to investigate criminal or other improper practices . . . in the field of labor-management relations. Deciding whether acts that are made criminal by state law ought also to be brought within a federal prohibition, if, as here, the subject is a permissible one for federal regulation, turns entirely on legislative inquiry. And it is this inquiry in which the Senate was engaged when it assigned the fact-finding duty to the Select Committee on Improper Activities in the Labor or Management Field. Moreover, this record is barren of evidence indicating that the Committee, for reasons of its own, undertook to expose this petitioner. First: The transcript discloses a most scrupulous adherence to the announced Committee policy of not asking a witness under state indictment any questions on the subject matter involved in the indictment. Note 9, supra. This particular indictment related solely to activity in which petitioner and others had been engaged in their individual capacities, not on behalf of any labor organization. The Committee's concern was not whether petitioner had in fact defrauded the State of Indiana of $78,000 in concluding a dishonest sale or whether he had personally corrupted a state employee. Its interest, which was entirely within the province entrusted to it by the Senate, was to discover whether and how funds of the Brotherhood of Carpenters or of the Teamsters Union [17] had been used in a conspiracy to bribe a state prosecutor to drop charges made against individuals who were also officers of the Brotherhood of Carpenters, and whether the influence of union officials had been exerted to that end. If these suspicions were founded, they would have supported remedial federal legislation for the future, even though they might at the same time have warranted a separate state prosecution for obstruction of justice, or been usable at the trial of the Marion County indictment as evidence of consciousness of guilt. Supra, pp. 607-608. But surely a congressional committee which is engaged in a legitimate legislative investigation need not grind to a halt whenever responses to its inquiries might potentially be harmful to a witness in some distinct proceeding, Sinclair v. United States, supra, at 295, or when crime or wrongdoing is disclosed, McGrain v. Daugherty, 273 U. S. 135, 179-180. Second: The information sought to be elicited by the Committee was pertinent to the legislative inquiry. The Committee was investigating whether and how union funds had been misused, in the interest of devising a legislative scheme to deal with irregular practices. Because of petitioner's refusal to answer questions, and because of the similar refusal by other witnesses to testify with regard to the Lake County grand jury proceedings, the Committee was not able to learn whether union funds or influence had been used to persuade Holovachka to drop those proceedings. Petitioner contends that the Committee's finding in its Second Interim Report that Raddock had been used by Hutcheson as a fixer in an attempt to head-off the indictment of Hutcheson [and others] . . . shows that his testimony was not needed for any purpose other than to prejudice or embarrass him. But this overlooks the fact that the Committee had been able to obtain no information whatever on the Lake County grand jury proceedings from any of the other witnesses by reason of their refusals to testify on the subject. [18] Moreover, it does not lie with this Court to say when a congressional committee should be deemed to have acquired sufficient information for its legislative purposes. Third: The Committee's interrogation was within the express terms of its authorizing resolution. If the Committee was to be at all effective in bringing to Congress' attention certain practices in the labor-management field which should be subject to federal prohibitions, it necessarily had to ask some witnesses questions which, if truthfully answered, might place them in jeopardy of state prosecution. Unless interrogation is met with a valid constitutional objection the scope of the power of [congressional] inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution. Barenblatt v. United States, supra, at 111. And it is not until the question is asked that the interrogator can know whether it will be answered or will be met with some constitutional objection. To deny the Committee the right to ask the question would be to turn an option of refusal into a prohibition of inquiry, 8 Wigmore, Evidence (3d ed.) § 2268, and to limit congressional inquiry to those areas in which there is not the slightest possibility of state prosecution for information that may be divulged. Such a restriction upon congressional investigatory powers should not be countenanced. The three episodes upon which the petitioner relies as evidencing a Committee departure from these legitimate congressional concerns fall far short of sustaining what is sought to be made of them. The first of these is the Committee counsel's statement at the outset of the hearings explaining the subject matter being inquired into, in the course of which he referred to the real estate transaction involved in the Marion County indictment, and explained the Committee's interest in finding out whether union funds or influence had been used in bringing to an end the Lake County grand jury investigation of the matter. [19] The propriety of such an inquiry has already been discussed. Pp. 617-618, supra. The second episode is the Chairman's statement to the effect that all the facts as to the Lake County proceedings had not been developed by the committee; that further exposure of them should be made; and that the Committee stood ready to assist and help Indiana if it chose to interest itself in the matter. [20] We can see nothing in this statement, which was made after the Committee's inquiry had ended, beyond a perfectly normal offer on the part of the Chairman to put the Committee transcript at the disposal of the Indiana law enforcement authorities if they wished to avail themselves of it. [21] The final occurrence is the so-called Committee finding as to petitioner's alleged use of Raddock as a fixer to head-off an indictment by the Lake County grand jury. Whatever the basis for that finding (cf. note 18, supra ), we must say that its mere inclusion in an official report to the Senate of the Committee's activities [22] furnishes a slender reed indeed for a charge that that Committee was engaged in unconstitutional exposure. In conclusion, it is appropriate to observe that just as the Constitution forbids the Congress to enter fields reserved to the Executive and Judiciary, it imposes on the Judiciary the reciprocal duty of not lightly interfering with Congress' exercise of its legitimate powers. Having scrutinized this case with care, we conclude that the judgment of the Court of Appeals must be Affirmed. MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case.",Exposure.
+57,97920,1,1,"SEC. 438. When a publication, not included in sections 429 and 430 (see secs. 427 and 428), is offered for mailing for the first time at the second-class rates of postage the postmaster shall require the proprietor or his duly authorized representative to make and present to him, with two copies of the publication, sworn answers in writing (on Form 3501) to the following interrogatories: (1) How often is the publication issued? (2) Where is the known office of publication? (If in a city give street and number.) (3) Where is it printed? (4) Who are the proprietors? (5) Are they in any way interested pecuniarily in any business or trade represented by the publication, either in the reading matter or in the advertisements? If so, what is the interest? (6) Who are the editors of the publication, and how is their compensation determined? (7) Have the editors any pecuniary interest in any business or trade represented by the publication, either in the reading matter or in the advertisements? If so, what is the interest? (8) Can any house in good standing advertise in your publication at the regular published rates? (9) Are advertisements of competitors accepted at the usual rates? (10) Have any of the business houses which advertise in your publication Page 307 any interest (either by past connection or special contract) therein respecting advertisements or subscriptions? If so, what is the interest? (11) What is the greatest number of copies furnished to any person or firm advertising in your publication? (12) On what terms are these papers furnished? (13) What number of copies do you print of each issue? (14) What number of bona fide subscribers have you for the next issue of your paper, made up as follows: a. Direct individual subscriptions to publisher without premium? b. Direct individual subscriptions to publisher with premium? c. Direct individual subscriptions in clubs or through clubbing arrangements? d. Copies regularly sold over publishers' counter to purchasers of individual copies? e. Copies regularly sold by newsboys? f. Regular sales of consecutive issues by news agencies? g. Bulk purchases of consecutive issues by news agencies for sale without the return privilege? h. Copies to advertisers, one to each to prove advertisement? i. Bona fide exchanges, one copy for another, with existing second-class publications? (15) What is the subscription price of your publication per annum? (16) How many pounds weight will cover the papers furnished to regular subscribers? (17) What average number of specimen copies with each issue do you desire to send through the mails at the pound rate? (18) How are the names of the persons to whom sample copies are to be sent obtained? (19) What disposition is made of the excess, if any, of copies printed over those furnished to subscribers, news agents, including newsboys, and as sample copies.",applications for entry of publications as second class matter.
+58,109928,1,2,"A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U. S. 784. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though `the acquittal was based upon an egregiously erroneous foundation.' . . . If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's `valued right to have his trial completed by a particular tribunal.' . . . Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial. Arizona v. Washington, 434 U. S. 497, 503-505 (1978) (footnotes omitted). In the application of these general principles, the narrow question here [12] is whether the State in filing exceptions to a master's proposals, pursuant to Rule 911, [13] thereby require[s] an accused to stand trial a second time. We hold that it does not. Maryland has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge. Importantly, a Rule 911 proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose of the prohibition against successive trials is to bar the prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding. Burks v. United States, 437 U. S. 1, 11 (1978). A Rule 911 proceeding does not provide the prosecution that forbidden second crack. The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor. The Double Jeopardy Clause also precludes the prosecutor from enhanc[ing] the risk that an innocent defendant may be convicted. Arizona v. Washington, supra, at 504, by taking the question of guilt to a series of persons or groups empowered to make binding determinations. Appellees contend that in its operation Rule 911 gives the State the chance to persuade two such factfinders: first the master, then the Juvenile Court judge. In support of this contention they point to evidence that juveniles and their parents sometimes consider the master the judge and his recommendations the verdict. Within the limits of jury trial rights, see McKeiver v. Pennsylvania, 403 U. S. 528 (1971), and other constitutional constraints, it is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here Maryland has conferred those roles only on the Juvenile Court judge. Thus, regardless of which party is initially favored by the master's proposals, and regardless of the presence or absence of exceptions, the judge is empowered to accept, modify, or reject those proposals. [14] Finally, there is nothing in the record to indicate that the procedure authorized under Rule 911 unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U. S. 184 (1957). Indeed, there is nothing to indicate that the juvenile is even brought before the judge while he conducts the hearing on the record, or that the juvenile's attorney appears at the hearing and presents oral argument or written briefs. But even if there were such participation or appearance, the burdens are more akin to those resulting from a judge's permissible request for post-trial briefing or argument following a bench trial than to the expense of a full-blown second trial contemplated by the Court in Green. In their effort to characterize a Rule 911 proceeding as two trials for double jeopardy purposes, appellees rely on two decisions of this Court, Breed v. Jones, 421 U. S. 519 (1975), and United States v. Jenkins, 420 U. S. 358 (1975). [15] In Breed, we held that a juvenile was placed twice in jeopardy when, after an adjudicatory hearing in Juvenile Court on a charge of delinquent conduct, he was transferred to adult criminal court, tried, and convicted for the same conduct. All parties conceded that jeopardy attached at the second proceeding in criminal court. The State contended, however, that jeopardy did not attach in the Juvenile Court proceeding, although that proceeding could have culminated in a deprivation of the juvenile's liberty. We rejected this contention and also the contention that somehow jeopardy continued from the first to the second trial. Breed is therefore inapplicable to the Maryland scheme, where juveniles are subjected to only one proceeding, or trial. Appellees also stress this language from Jenkins: [I]t is enough for purposes of the Double Jeopardy Clause . . . that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings . . . . [To do so] would violate the Double Jeopardy Clause. 420 U. S., at 370 (emphasis added). Although we doubt that the Court's decision in a case can be correctly identified by reference to three isolated sentences, any language in Jenkins must now be read in light of our subsequent decision in United States v. Scott, 437 U. S. 82 (1978). In Scott we held that it is not all proceedings requiring the making of supplemental findings that are barred by the Double Jeopardy Clause, but only those that follow a previous trial ending in an acquittal; in a conviction either not reversed on appeal or reversed because of insufficient evidence, see Burks v. United States, supra ; or in a mistrial ruling not prompted by manifest necessity, see Arizona v. Washington, 434 U. S. 497 (1978). A Juvenile Court judge's decision terminating a Rule 911 proceeding follows none of those occurrences. Furthermore, Jenkins involved appellate review of the final judgment of a trial court fully empowered to enter that judgment. Nothing comparable occurs in a Rule 911 proceeding. See n. 15, supra. To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911—either sua sponte, in response to the State's exceptions, or in response to the juvenile's exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection—he does so without violating the constraints of the Double Jeopardy Clause. Accordingly, we reverse and remand for further proceedings consistent with this opinion. It is so ordered.",The general principles governing this case are well established.
+59,88168,1,1,"The basis of the prayer for relief is, that Jones threatens to bring a suit against his co-defendant, the mining company, upon a false and fraudulent claim, and that thereby the complainant is liable to suffer injury and sustain damage, and one of the defendants, the company, is liable to be greatly embarrassed in conducting its affairs. Assume all this to be true. Then, 1st. If Jones made false representations whereby the complainant was induced to purchase stock and was injured, the courts of common law afford an ample remedy. If he made true representations and afterwards attempted to do that which, if consummated, would operate as a fraud upon the complainant, the courts of law still afford a remedy. If his representations operated as an estoppel against his setting up a claim against the company, it would be as operative a defence at law as it would in equity. If the threatened action had been, or were to be brought by Jones, against the company, the answer would be that the claim is false, fraudulent, and brought for the purpose of extortion. This effords a perfect defence in law. If the claim were true and not false, but Jones had estopped himself from enforcing it by making false representations, that is, by representing to the purchasers that he had no claim against the company, and the contrary of those representations if acted upon, would injure and embarrass the company, the defence is still perfect in the action at law. A court of law has thus full and adequate jurisdiction of the subject-matter of the action, whatever may be the alleged particular phase of it. Yet further. The case stated does not constitute an equitable cause of action. It does not show wherein or how much damage the plaintiff is liable to sustain, and does not pretend that any has been sustained. Courts of equity will indeed protect against great threatened injury where the mischief will be irreparable. But there is no allegation here of irreparable injury; no averment that Jones is irresponsible; no statement of facts from which injury can be inferred. The only allegation upon that subject is that the stock which plaintiff now holds is liable to become greatly depreciated in value. The bill is not one for discovery. All of the facts are known, and susceptible of proof without any testimony to be furnished by the answer. 2d. But how does a court of equity, on such a case as the one assumed, acquire jurisdiction? The mining company is not charged with fault or collusion. It is not alleged that if sued by Jones, it will not defeat the action; nor that it is incapable of transacting its own business, and protecting its stockholders; nor is it shown how stockholders so large as the complainant and his associates, have not a sufficient control of the affairs of the company; nor that the company could not have brought an action in its own State court to remove a cloud upon its title, if it was likely to be embarrassed by Jones setting up a false and fraudulent claim. If then there is no collusion, or concert of action charged between the defendants, and relief be demanded against both or all in regard to the same thing, and no cause of action be stated against one, there is a misjoinder of parties as to both or all, and, of course, either may demur. 3d. The proof does not show that the complainant, Bolles, is the owner of any stock in the Mineral Point Mining Company. He avoids saying specifically that he owns any stock, or that he owned any at the time of filing the bill. No stockholder has united with him in prosecuting this action. If it be true that he owns one share, worth perhaps $5, he occupies the position of obtaining an injunction to restrain the company from paying an honest debt, of which his distributive share, if it were paid by an assessment, might be less than five cents. No opposing counsel .",But there are difficulties as to jurisdiction and pleading.
+60,89069,1,1,"On the 2d of June, 1866, he filed his answer to the original bill. It was subscribed and sworn to by himself, and signed by Mr. Doddridge as his counsel. He thus entered his appearance and placed himself within the jurisdiction of the court. The proceedings thereafter, including his appeal to the State District Court, appear to have been in all things regular down to the removal of the case to the Circuit Court of the United States. The decree of the 8th of December, 1866, from which the appeal was taken, was a final one. [†] When affirmed by the appellate court it was conclusive of the rights of the parties as to everything covered by it, and could not be affected by any action of the Circuit Court of the county or of the United States in the subsequent progress of the case. That decree was res judicata of the most solemn character. [‡] The decree of the 2d of June, 1869, ascertained the amount due from Stewart for the rents, and ordered that he should pay it. This terminated the litigation under the original bill. After the close of that term — except for reasons not claimed nor shown to exist — the court had no power to revoke or modify this decree. [§] Nothing of the kind was attempted. At the same time that this decree was entered leave was given to the complainant to file the amended bill, William Dulany, Esq., an attorney of the court, appearing in court and consenting thereto. The amended bill was filed on the 17th of that month. It sought to make Hay liable also for the rents, and Hay and Stewart liable for the loss and damage as to the furniture. This did not in any wise affect the previous litigation and decrees as to Stewart under the original bill. Those decrees continued to stand as if the amended bill had not been filed. [] The general rule is that an amendment of the bill gives a defendant the right to answer as if he had not answered before. [†] In the state of the case which existed when the amendment here in question was made, no amendment could be allowed. It was then too late. A final decree covering the entire original case subsisted. The court had no power over that decree and never attempted to exercise any. The further relief sought could be reached, if at all, only by a supplemental bill. [‡] It was a gross error to allow the amended bill to be filed. But the point was not made in the State court nor in the court below, nor in the argument here. The case, according to our views, can be properly disposed of without reference to it. We have, therefore, laid it out of view. An amended bill is esteemed a part of the original bill and a continuation of the suit. But one record is made. But the amendment is sometimes of such a character that it is regarded as an independent graft upon the original case and the beginning of a new lis pendens. [§] Stewart complained that Dulany appeared and acted for him as to the amended bill without authority. Whether Dulany did so or not is immaterial. New process is necessary unless waived upon a supplemental bill and a bill of revivor, but not upon an amended bill as to defendants who are already before the court. [] Being in court they are bound to take notice of the filing of such bills as of any other proceeding in the case. In the English practice the complainant is required to serve a copy of the amendment upon the solicitor of the defendant, [†] but this, it is believed, is rarely if ever done in the courts of the States, unless required by an established rule of practice or a special order in the case. In the courts of the United States the subject is regulated by the twenty-eighth rule of equity practice. The State court, by an order of the 23d of December, 1869, directed an issue to be tried as to the furniture, and gave Stewart leave to answer the amended bill. This was all he had a right to claim, and left him nothing to complain of. In this condition of things the case went to the Circuit Court of the United States. That court possessed the same power in the case as the State court while the case was before it, no more and no less. It certainly did not sit as a court of errors or appeal with jurisdiction to reverse the final decree of the State court made under the original bill. That would be contrary to the intent and meaning of the act of Congress under which the removal was made. Its authority as to Stewart was limited to the allegations of the amended bill in regard to the furniture. So far as he was concerned it presented no other subject of litigation, and nothing else was open to examination under it. If that bill had not been filed there could have been no transfer as to him. On the 22d of October, 1872, the court below, as before stated, set aside all the decrees of the State court and ordered that this case do now stand for hearing on the bill, answer, and pleadings. The entire case was thus opened anew, as if nothing had been done under the original bill by the State court. This was clearly an error. We think the liability of Stewart as to the furniture was well made out by the complainant. The court below, by an issue at law, as directed by the interlocutory order of the State court, or by a reference to a master, should have ascertained the amount and decreed accordingly. [] The order vacating the decrees of the State court as to Stewart, made under the original bill, is VACATED. The final decree dismissing the bill as to him is REVERSED, and the case will be REMANDED to the court below with directions to proceed IN CONFORMITY WITH THIS OPINION.",as to stewart.
+61,89069,1,2,"He also filed an answer to the original bill. Like Stewart's, it was subscribed and sworn to by himself, and was subscribed by counsel. He, too, was bound to take notice of the filing of the amended bill. But the original bill claimed no decree against him. The amended bill, as to him, made an entirely new case. It set up the first claim against him as to the rent and the furniture. His own affidavit and the other proofs showed clearly that Dulany had no authority to appear as his counsel; that he had no actual knowledge of the filing of the bill until after the decree pro confesso was taken against him, and that he had a complete defence. It is within the discretion of a court of equity, upon a proper showing, to set aside a decree pro confesso upon such terms as it may see fit to prescribe. [†] The State court well exercised its authority in setting aside the decree against Hay, but it committed a gross error in decreeing against him eo instanti the payment of $2387 on account of the rent, leaving the case open only as to the furniture. To revoke the first decree because he had been ignorant of the filing of the amended bill, and, hence, had made no defence, and then to renew it without giving him an opportunity to be heard, was, to say the least, a singular anomaly. So far as he was concerned the claim as to the rent and the furniture rested upon exactly the same foundation. If it was proper that he should be heard as to one it was equally so that he should be heard as to the other. There was no difference. The same considerations applied with respect to both. In the renewed decree damages as to the furniture might as well have been included as the charge for the rent. It was no less wrong as to the latter than it would have been as to the former. Time and opportunity to defend being refused, the decree was in effect another decree pro confesso. It certainly was not a decree upon the merits after a hearing upon the charge as to the rents. After the transfer of the case he applied to the Circuit Court of the United States to vacate this decree upon the same showing as in the State court, and it was done. A bill for fraud could not have been maintained, because there was no foundation for the charge. A bill of review would not have availed him, because there was no error apparent upon the face of the decree nor upon the record. The circumstances under which the decree was rendered were very peculiar. They have been stated. The proper mode of seeking redress was by motion upon the showing which was made. [] The Circuit Court had the power to do what it did and properly did it. This was less expensive, less dilatory, and much to be preferred to a bill, even if the same relief could have been had in that way. It was also more in accordance with the spirit of sound equity practice. The entire case made by the bill as to Hay was thus opened. His answer denied all the material allegations against him, and we find in the record no evidence whatever to sustain them. No effort seems to have been made to procure any. The bill as to him was rightly dismissed, and in this respect the decree of the Circuit Court is AFFIRMED.",as to hay.
+62,107366,1,1,"MoPac, a Missouri corporation, is an interstate common carrier railroad. It had been in reorganization proceedings under § 77 of the Bankruptcy Act, as amended, 11 U. S. C. § 205, until January 1, 1955. [2] After those proceedings terminated, the corporation's preferred and common stock was replaced by two classes of $100 stated capital no par voting shares: Class A, which is preferentially entitled to noncumulative dividends not to exceed $5 per share annually, and Class B, which is entitled to all the earnings and the equity in excess of the Class A preferences. MoPac's Articles of Association, Art. VII, § D (3), provide that class voting shall not be required save as to four types of corporate change, none of which shall be effected without the separate consent of the record holders of a majority of the Class A and the Class B shares. The four specified changes are: (1) the issuance of additional shares; (2) the creation or issuance of any MoPac obligation or security convertible into or exchangeable for MoPac shares; (3) an alteration or change in the preferences, qualifications, limitations, restrictions and special or relative rights of the Class A Stock or of the Class B Stock; and, finally, (4) the amendment or elimination of any of the foregoing requirements. MoPac has 1,849,576 shares of Class A stock and 39,731 shares of Class B stock outstanding. T & P was incorporated by an Act of Congress in 1871 and is also an interstate railroad of which MoPac owns 82.86% of the outstanding shares of stock. Mississippi River Fuel Corporation (Mississippi) is a Delaware corporation and owns a majority (57.95%) of the Class A shares of the stock of MoPac. Alleghany Corporation (Alleghany) is a Maryland corporation and owns a majority (51%) of the Class B stock of MoPac, subject to a voting trust. T & M is a Delaware corporation organized for the purpose of being the consolidated company upon the merger of MoPac and T & P. The agreement and plan of consolidation were approved by the Board of Directors of MoPac and T & P in December of 1963. The plan provided for an exchange of each MoPac share (without regard to class) for four shares of the new corporation and for an exchange of the T & P stock (other than that owned by MoPac) on a basis of one share of T & P for 4.8 shares of the new company. In January of 1964, the three companies filed a joint application with the Interstate Commerce Commission for an order under § 5 (2) of the Act authorizing the consolidation and the issuance of securities by T & M under § 20a. In this application MoPac advised that it would submit the proposed plan to its stockholders, for approval, by May of 1964 on the basis of a collective, rather than class, vote. There are a total of six individual petitioners, each of whom owns only a nominal number of Class B shares, and Alleghany which owns, as aforesaid, a majority of those shares. The respondents are MoPac, T & P, Mississippi, and some of their directors or officers, only one of whom owns any Class B stock of MoPac. The first of the three suits which this cause involves was filed prior to the submission of the plan to the Commission; the second and third subsequent thereto. Each of the suits attacks the plans of consolidation, alleging, among other things, that the Class B stock has a much greater value than that of the Class A and that the exchange is unfair; that the collective voting plan would violate the Articles of Association, the law of Missouri (and, therefore, § 5 (11) of the Act) and would result in irreparable injury to the Class B shareholders. Each complaint prays for a declaration that the plan of consolidation requires the separate vote of each class of stock. At trial the parties agreed that the court should first pass upon the voting rights question. The District Court held that class voting was required and certified the issue to the Court of Appeals which permitted an interlocutory appeal under 28 U. S. C. § 1292 (b). Further proceedings in the District Court were stayed. As we have indicated, the Court of Appeals held that, even though MoPac's Articles of Association required a class vote on consolidation and Missouri law, therefore, demanded such a vote, it nevertheless was impressed with the significance of the national transportation policy and its emphasis on railroad consolidation, with the stated exclusive and plenary character of § 5 (11), and with its consequent preemptive nature. 359 F. 2d, at 119. The Court felt that, by virtue of the federal statute, it was compelled to conclude that it should apply the general standard as to voting rights, i. e., the majority of all voting shares, rather than honor the exception, i. e., class voting, as provided under Missouri law.",Background of the Parties and the Litigation.
+63,106879,2,1,"Dr. Guy Malone, the manager of the Columbia branch of Eckerd Drugs of Florida, Inc., testified: Q. Mr. Malone, is the public generally invited to do business with Eckerd's?
+Q. Does that mean all of the public of all races? A. Yes. Q. Are Negroes welcome to do business with Eckerd's? A. Yes. Q. Are Negroes welcome to do business at the lunch counter at Eckerd's? A. Well, we have never served Negroes at the lunch counter department. Q. According to the present policy of Eckerd's, the lunch counter is closed to members of the Negro public? A. I would say yes. Q. And all other departments of Eckerd's are open to members of the Negro public, as well as to other members of the public generally? A. Yes. Q. Mr. Malone, on the occasion of the arrest of these young men, what were they doing in your store, if you know? A. Well, it was four of them came in. Two of them went back and sat down at the first booth and started reading books, and they sat there for about fifteen minutes. Of course, we had had a group about a week prior to that, of about fifty, who came into the store. Mr. Perry: Your Honor, I ask, of course, that the prior incident be stricken from the record. That is not responsive to the question which has been asked, and is not pertinent to the matter of the guilt or innocence of these young men. The Court: All right, strike it. Mr. Sholenberger: Your Honor, this is their own witness. Mr. Perry: We announced at the outset that Mr. Malone would, in a sense, be a hostile witness. ..... Q. And so, when a person comes into Eckerd's and seats himself at a place where food is ordinarily served, what is the practice of your employees in that regard? A. Well, it's to take their order. Q. Did anyone seek to take the orders of these young men? A. No, they did not. Q. Why did they not do so? A. Because we didn't want to serve them. Q. Why did you not want to serve them? A. I don't think I have to answer that. Q. Did you refuse to serve them because they were Negroes? A. No. Q. You did say, however, that Eckerd's has the policy of not serving Negroes in the lunch counter section? A. I would say that all stores do the same thing. Q. We're speaking specifically of Eckerd's? A. Yes. Q. Did you or any of your employees, Mr. Malone, approach these defendants and take their order for food? A. No.","Bouie v. City of Columbia, post, p. 347."
+64,106879,2,4,"Mr. Albert C. Watts, the manager of the S. H. Kress & Co. outlet in Charleston, testified: Q. . . . What type of business is Kress's?
+Q. Could you tell us briefly something about what commodities it sells—does it sell just about every type of commodity that one might find in this type establishment? A. Strictly variety store merchandise—no appliances or anything like that. Q. I see. Kress, I believe it invites members of the public generally into its premises to do business, does it not? A. Yes. Q. It invites Negroes in to do business, also? A. Right. Q. Are Negroes served in all of the departments of Kress's except your lunch counter? A. We observe local custom. Q. In Charleston, South Carolina, the store that you manage, sir, does Kress's serve Negroes at the lunch counter? A. No. It is not a local custom. Q. To your knowledge, does the other like businesses serve Negroes at their lunch counters? What might happen at Woolworth's or some of the others? A. They observe local custom—I say they wouldn't. Q. Then you know of your own knowledge that they do not serve Negroes? Are you speaking of other business such as your business? A. I can only speak in our field, yes. Q. In your field, so that the other stores in your field do not serve Negroes at their lunch counters? A. Yes, sir.","Mitchell v. City of Charleston, post, p. 551."
+65,106879,2,5,"Mr. H. C. Whiteaker, the manager of McCrory's in Rock Hill, testified: Q. All right. Now, how many departments do you have in your store?
+A. Yes, sir. Q. All right, sir, is one of these departments considered a lunch counter or establishment where food is served? A. Yes, sir. That is a separate department. ..... Q. Now, I believe, is it true that you invite members of the public to come into your store? A. Yes, it is for the public. Q. And is it true, too, that the public to you means everybody, various races, religions, nationalities? A. Yes, sir. Q. The policy of your store as manager is not to exclude anybody from coming in and buying these three thousand items on account of race, nationality or religion, is that right? A. The only place where there has been exception, where there is an exception, is at our lunch counter. Q. Oh, I see. Is that a written policy you get from headquarters in New York? A. No, sir. Q. It is not. You don't have any memorandum in your store that says that is a policy? A. No, sir. ..... Q. Is it true, then, that if, that, well, even if a man was quiet enough, and a Communist, that he could sit at your lunch counter and eat, according to the policy of your store right now? Whether you knew he was a Communist or not, so his political beliefs would not have anything to do with it, is that right? A. No. Q. Now, sir, you said that there was a policy there as to Negroes sitting. Am I to understand that you do serve Negroes or Americans who are Negroes, standing up? A. To take out, at the end of the counter, we serve take-outs, yes, sir. Q. In other words, you have a lunch counter at the end of your store? A. No, I said at the end, they can wait and get a package or a meal or order a coke or hamburger and take it out. Q. Oh, to take out. They don't normally eat it on the premises? A. They might, but usually it is to take out. ..... Q. Of course, you probably have some Negro employees in your store, in some capacity, don't you? A. Yes, sir. Q. They eat on the premises, is that right? A. Yes, sir. Q. But not at the lunch counter? A. No, sir. ..... Q. Oh, I see, but generally speaking, you consider the American Negro as part of the general public, is that right, just generally speaking? A. Yes, sir. Q. You don't have any objections for him spending any amount of money he wants to on these 3,000 items, do you? A. That's up to him to spend if he wants to spend. Q. This is a custom, as I understand it, this is a custom instead of a law that causes you not to want him to ask for service at the lunch counter? A. There is no law to my knowledge, it is merely a custom in this community. C. The testimony in the following cases is less definitive with respect to why Negroes were refused service. In Griffin v. Maryland, ante, p. 130, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice. In Barr v. City of Columbia, ante, p. 146, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store and that whether for business or personal reasons, he felt he had a right to refuse service to anyone. In Williams v. North Carolina, post, p. 548, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door. In Lupper v. Arkansas, 377 U. S. 989, and Harris v. Virginia, post, p. 552, the record discloses only that the establishment did not serve Negroes. APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS. Corporate [1] Business Establishments Involved In The Sit-in Cases Before This Court During The 1962 Term And The 1963 Term. Reference (other than the record in each case): Moody's Industrial Manual (1963 ed.). 1. Gus Blass & Co. Department Store. Case: Lupper v. Arkansas, 377 U. S. 989. Location: Little Rock, Arkansas. Ownership: Privately owned corporation. 2. Eckerd Drugs of Florida, Inc. Case: Bouie v. City of Columbia, post, p. 347. Location: 17 retail drugstores throughout Southern States. Ownership: Publicly owned corporation. Number of shareholders: 1,000. Stock traded: Over-the-counter market. 3. George's Drug Stores, Inc. Case: Harris v. Virginia, post, p. 552. Location: Hopewell, Virginia. Ownership: Privately owned corporation. 4. Gwynn Oak Park, Inc. Case: Drews v. Maryland, post, p. 547. Location: Baltimore, Maryland. Ownership: Privately owned corporation. 5. Hooper Food Company, Inc. Case: Bell v. Maryland, supra, p. 226. Location: Several restaurants in Baltimore, Maryland. Ownership: Privately owned corporation.","Hamm v. City of Rock Hill, 377 U. S. 988."
+66,106879,3,1,"A. Yes, sir. Q. All right, sir, is one of these departments considered a lunch counter or establishment where food is served? A. Yes, sir. That is a separate department. ..... Q. Now, I believe, is it true that you invite members of the public to come into your store? A. Yes, it is for the public. Q. And is it true, too, that the public to you means everybody, various races, religions, nationalities? A. Yes, sir. Q. The policy of your store as manager is not to exclude anybody from coming in and buying these three thousand items on account of race, nationality or religion, is that right? A. The only place where there has been exception, where there is an exception, is at our lunch counter. Q. Oh, I see. Is that a written policy you get from headquarters in New York? A. No, sir. Q. It is not. You don't have any memorandum in your store that says that is a policy? A. No, sir. ..... Q. Is it true, then, that if, that, well, even if a man was quiet enough, and a Communist, that he could sit at your lunch counter and eat, according to the policy of your store right now? Whether you knew he was a Communist or not, so his political beliefs would not have anything to do with it, is that right? A. No. Q. Now, sir, you said that there was a policy there as to Negroes sitting. Am I to understand that you do serve Negroes or Americans who are Negroes, standing up? A. To take out, at the end of the counter, we serve take-outs, yes, sir. Q. In other words, you have a lunch counter at the end of your store? A. No, I said at the end, they can wait and get a package or a meal or order a coke or hamburger and take it out. Q. Oh, to take out. They don't normally eat it on the premises? A. They might, but usually it is to take out. ..... Q. Of course, you probably have some Negro employees in your store, in some capacity, don't you? A. Yes, sir. Q. They eat on the premises, is that right? A. Yes, sir. Q. But not at the lunch counter? A. No, sir. ..... Q. Oh, I see, but generally speaking, you consider the American Negro as part of the general public, is that right, just generally speaking? A. Yes, sir. Q. You don't have any objections for him spending any amount of money he wants to on these 3,000 items, do you? A. That's up to him to spend if he wants to spend. Q. This is a custom, as I understand it, this is a custom instead of a law that causes you not to want him to ask for service at the lunch counter? A. There is no law to my knowledge, it is merely a custom in this community. C. The testimony in the following cases is less definitive with respect to why Negroes were refused service. In Griffin v. Maryland, ante, p. 130, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice. In Barr v. City of Columbia, ante, p. 146, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store and that whether for business or personal reasons, he felt he had a right to refuse service to anyone. In Williams v. North Carolina, post, p. 548, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door. In Lupper v. Arkansas, 377 U. S. 989, and Harris v. Virginia, post, p. 552, the record discloses only that the establishment did not serve Negroes. APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS. Corporate [1] Business Establishments Involved In The Sit-in Cases Before This Court During The 1962 Term And The 1963 Term. Reference (other than the record in each case): Moody's Industrial Manual (1963 ed.). 1. Gus Blass & Co. Department Store. Case: Lupper v. Arkansas, 377 U. S. 989. Location: Little Rock, Arkansas. Ownership: Privately owned corporation. 2. Eckerd Drugs of Florida, Inc. Case: Bouie v. City of Columbia, post, p. 347. Location: 17 retail drugstores throughout Southern States. Ownership: Publicly owned corporation. Number of shareholders: 1,000. Stock traded: Over-the-counter market. 3. George's Drug Stores, Inc. Case: Harris v. Virginia, post, p. 552. Location: Hopewell, Virginia. Ownership: Privately owned corporation. 4. Gwynn Oak Park, Inc. Case: Drews v. Maryland, post, p. 547. Location: Baltimore, Maryland. Ownership: Privately owned corporation. 5. Hooper Food Company, Inc. Case: Bell v. Maryland, supra, p. 226. Location: Several restaurants in Baltimore, Maryland. Ownership: Privately owned corporation.",Around twenty. Q. Around twenty departments?
+67,106879,2,6,"Case: Henry v. Virginia, 374 U. S. 98. Location: 650 restaurants in 25 States. Ownership: Publicly owned corporation. Number of shareholders: 15,203. Stock traded: New York Stock Exchange.",Howard Johnson Co.
+68,106879,2,7,"Case: Williams v. North Carolina, post, p. 548. Location: Monroe, North Carolina. Ownership: Privately owned corporation.","Jones Drug Company, Inc."
+69,106879,2,8,"Case: Griffin v. Maryland, ante, p. 130. Location: Glen Echo Amusement Park, Maryland. Ownership: Privately owned corporation.","Kebar, Inc. (lessee from Rakad, Inc.)."
+70,106879,2,9,"Cases: Mitchell v. City of Charleston, post, p. 551; Avent v. North Carolina, 373 U. S. 375; Gober v. City of Birmingham, 373 U. S. 374; Peterson v. City of Greenville, 373 U. S. 244. Location: 272 stores in 30 States. Ownership: Publicly owned corporation. Number of shareholders: 8,767. Stock traded: New York Stock Exchange. 10. Loveman's Department Store (food concession operated by Price Candy Company of Kansas City). Case: Gober v. City of Birmingham, supra . Location: Birmingham, Alabama. Ownership: Privately owned corporation. 11. McCrory Corporation. Cases: Fox v. North Carolina, post, p. 587; Hamm v. City of Rock Hill, 377 U. S. 988; Lombard v. Louisiana, 373 U. S. 267. Location: 1,307 stores throughout the United States. Ownership: Publicly owned corporation. Number of shareholders: 24,117. Stock traded: New York Stock Exchange. 12. National White Tower System, Incorporated. Case: Green v. Virginia, post, p. 550. Location: Richmond, Virginia, and other cities (number unknown). Ownership: Apparently a privately owned corporation. 13. J. J. Newberry Co. Case: Gober v. City of Birmingham, supra . Location: 567 variety stores in 46 States; soda fountains, lunch bars, cafeterias and restaurants in 371 stores. Ownership: Publicly owned corporation. Number of shareholders: 7,909. Stock traded: New York Stock Exchange. 14. Patterson Drug Co. Cases: Thompson v. Virginia, 374 U. S. 99; Wood v. Virginia, 374 U. S. 100. Location: Lynchburg, Virginia. Ownership: Privately owned corporation. 15. Pizitz's Department Store. Case: Gober v. City of Birmingham, supra . Location: Birmingham, Alabama. Ownership: Privately owned corporation. 16. Shell's City, Inc. Case: Robinson v. Florida, ante, p. 153. Location: Miami, Florida. Ownership: Privately owned corporation. 17. Thalhimer Bros., Inc., Department Store. Case: Randolph v. Virginia, 374 U. S. 97. Location: Richmond, Virginia. Ownership: Privately owned corporation. 18. F. W. Woolworth Company. Case: Gober v. City of Birmingham, supra . Location: 2,130 stores (primarily variety stores) throughout the United States. Ownership: Publicly owned corporation. Number of shareholders: 90,435. Stock traded: New York Stock Exchange. APPENDIX IV TO OPINION OF MR. JUSTICE DOUGLAS. Legal form of organization—by kind of business. Reference: United States Census of Business, 1958. Vol. I. Retail trade—Summary Statistics (1961). A. UNITED STATES. Establishments Sales Eating places: ( number ) ( $1,000 ) Total .............................. 229,238 $11,037,644 Individual proprietorships .............. 166,003 5,202,308 Partnerships ............................ 37,756 2,062,830 Corporations ............................ 25,184 3,723,295 Cooperatives ............................ 231 13,359 Other legal forms ....................... 64 35,852 Drugstores with fountain: Total .............................. 24,093 $3,535,637 Individual proprietorships............... 13,549 1,294,737 Partnerships ............................ 4,368 602,014 Corporations ............................ 6,140 1,633,998 Cooperatives ............................ 9 (withheld) Other legal forms ....................... 27 Do. Proprietary stores with fountain: Total ............................. 2,601 132,518 Individual proprietorships............... 1,968 85,988 Partnerships ............................ 446 (withheld) Corporations ............................ 185 21,090 Cooperatives ............................ ....... ............ Other legal forms ....................... 2 (withheld) Department stores: Total ............................... 3,157 13,359,467 Individual proprietorships............... 19 (withheld) Partnerships ............................ 64 85,273 Corporations ............................ 3,073 13,245,916 Cooperatives ............................ 1 (withheld) Other legal forms ....................... ....... ........... B. STATE OF MARYLAND. Establishments Sales Eating places: ( number ) ( $1,000 ) Total ..................... 3,223 175,546 Individual proprietorships ....... 2,109 72,816 Partnerships ..................... 456 30,386 Corporations ..................... 628 71,397 Other legal forms ................ 30 947 Drugstores, proprietary stores: Total ...................... 832 139,943 Individual proprietorships........ 454 42,753 Partnership ...................... 139 (withheld) Corporations ..................... 235 76,403 Other legal forms ................ 4 (withheld) Department stores: Total ...................... 43 247,872 Individual proprietorships........ ...... ........... Partnerships ..................... ...... ........... Corporations ..................... 43 247,872 Other legal forms ................ ...... ............  A division into stores with or without fountains, furnished for the United States, is not furnished for individual States. [For Appendix V to opinion of DOUGLAS, J., see p. 284.] APPENDIX V TO OPINION OF MR. JUSTICE DOUGLAS. STATE ANTIDISCRIMINATION LAWS. ( As of March 18, 1964. ) (PREPARED BY THE UNITED STATES COMMISSION ON CIVIL RIGHTS.) Privately owned public accommodations Private Private Private Private State employment housing schools hospitals Alaska_ _ _ _ _ _ _ _ 11959 11959 1962 _ _ _ _ 21962 California_ _ _ _ _ _ 1897 1959 1963 _ _ _ _ 21959 Colorado_ _ _ _ _ _ _ 1885 1957 1959 _ _ _ _ _ _ _ _ Connecticut _ _ _ _ _ 1884 1947 1959 _ _ _ _ 21953 Delaware_ _ _ _ _ _ _ 1963 1960 _ _ _ _ _ _ _ _ _ _ _ _ Hawaii_ _ _ _ _ _ _ _ _ _ _ _ 1963 _ _ _ _ _ _ _ _ _ _ _ _ Idaho_ _ _ _ _ _ _ _ 1961 1961 _ _ _ _ _ _ _ _ _ _ _ _ Illinois_ _ _ _ _ _ _ 1885 1961 _ _ _ _ 31963 41927 Indiana_ _ _ _ _ _ _ _ 1885 1945 _ _ _ _ _ _ _ _ 21963 Iowa_ _ _ _ _ _ _ _ _ _ 1884 1963 _ _ _ _ _ _ _ _ _ _ _ _ Kansas_ _ _ _ _ _ _ _ _ 1874 1961 _ _ _ _ _ _ _ _ _ _ _ _ Kentucky5_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Maine_ _ _ _ _ _ _ _ _ _ 1959 _ _ _ _ _ _ _ _ _ _ _ _ 21959 Maryland6_ _ _ _ _ _ 1963 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Massachusetts_ _ _ _ _ _ 1865 1946 1959 1949 1953 Michigan7_ _ _ _ _ _ 1885 1955 _ _ _ _ _ _ _ _ _ _ _ _ Minnesota_ _ _ _ _ _ _ _ 1885 1955 1961 _ _ _ _ 21943 Missouri_ _ _ _ _ _ _ _ _ _ _ _ _ 1961 _ _ _ _ _ _ _ _ _ _ _ _ Montana_ _ _ _ _ _ _ _ _ 1955 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Nebraska_ _ _ _ _ _ _ _ _ 1885 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ New Hampshire_ _ _ _ _ _ _ 1961 _ _ _ _ 1961 _ _ _ _ 21961 New Jersey_ _ _ _ _ _ _ _ _ 1884 1945 1961 1945 1951 New Mexico_ _ _ _ _ _ _ _ _ 1955 1949 _ _ _ _ _ _ _ _ 1957 New York_ _ _ _ _ _ _ _ _ _ 1874 1945 1961 1945 1945 North Dakota_ _ _ _ _ _ _ _ 1961 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Ohio_ _ _ _ _ _ _ _ _ _ _ _ 1884 1959 _ _ _ _ _ _ _ _ 21961 Oregon_ _ _ _ _ _ _ _ _ _ _ 1953 1949 81959 91951 21961 Pennsylvania_ _ _ _ _ _ _ _ 1887 1955 1961 1939 1939 Rhode Island_ _ _ _ _ _ _ _ 1885 1949 _ _ _ _ _ _ _ _ 21957 South Dakota_ _ _ _ _ _ _ _ 1963 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Vermont_ _ _ _ _ _ _ _ _ _ 1957 1963 _ _ _ _ _ _ _ _ 21957 Washington10_ _ _ _ _ _ 1890 1949 _ _ _ _ 1957 21957 Wisconsin_ _ _ _ _ _ _ _ _ 1895 1957 _ _ _ _ _ _ _ _ _ _ _ _ Wyoming_ _ _ _ _ _ _ _ _ _ 1961 _ _ _ _ _ _ _ _ _ _ _ _ 21961 1. Alaska was admitted to the Union in 1959 with these laws on its books. 2. Hospitals are not enumerated in the law; however, a reasonable interpretation of the broad language contained in the public accommodations law could include various health facilities. 3. The law appears to be limited to business schools. 4. Hospitals where operations (surgical) are performed are required to render emergency or first aid to any applicant if the accident or injury complained of could cause death or severe injury. 5. In 1963, the Governor issued an executive order requiring all executive departments and agencies whose functions relate to the supervising or licensing of persons or organizations doing business to take all lawful action necessary to prevent racial or religious discrimination. 6. In 1963, the law exempted 11 counties; in 1964, the coverage was extended to include all of the counties. See ante, p. 229, n. 1. 7. See 1963 Mich. Atty. Gen. opinion holding that the State Commission on Civil Rights has plenary authority in housing. 8. The statute does not cover housing per se but it prohibits persons engaged in the business from discriminating. 9. The statute relates to vocational, professional, and trade schools. 10. In 1962, a Washington lower court held that a real estate broker is within the public accommodations law. The dates are those in which the law was first enacted; the underlining means that the law is enforced by a commission. In addition to the above, the following cities in States without pertinent laws have enacted antidiscrimination ordinances: Albuquerque, N. Mex. (housing); Ann Arbor, Mich. (housing); Baltimore, Md. (employment); Beloit, Wis. (housing); Chicago, Ill. (housing); El Paso, Tex. (public accommodations); Ferguson, Mo. (public accommodations); Grand Rapids, Mich. (housing); Kansas City, Mo. (public accommodations); Louisville, Ky. (public accommodations); Madison, Wis. (housing); Oberlin, Ohio (housing); Omaha, Nebr. (employment); Peoria, Ill. (housing); St. Joseph, Mo. (public accommodations); St. Louis, Mo. (housing and public accommodations); Toledo, Ohio (housing); University City, Mo. (public accommodations); Yellow Springs, Ohio (housing); and Washington, D.C. (public accommodations and housing). [For concurring opinion of GOLDBERG, J., see p. 286.]",S. H. Kress & Company.
+71,118008,3,1,"(A) for the relief provided for in subsection (c) of this section [providing for liquidated damages for failure to provide certain information on request], or (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 409 [entitled Liability for Breach of Fiduciary Duty]; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan; (4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 105(c) [requiring disclosure of certain tax registration statements]; (5) except as otherwise provided in subsection (b), by the Secretary (A) to enjoin any act or practice which violates any provision of this title, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this title; or (6) by the Secretary to collect any civil penalty under subsection (i). ERISA § 502(a), 88 Stat. 891, 29 U. S. C. § 1132(a) (1988 ed.) (emphasis added). The District Court held that the third subsection, which we have italicized, authorized this suit and the relief awarded. Varity concedes that the plaintiffs satisfy most of this provision's requirements, namely, that the plaintiffs are plan participants or beneficiaries, and that they are suing for equitable relief to redress a violation of § 404(a), which is a provision of this title. Varity does not agree, however, that this lawsuit seeks equitable relief that is  appropriate.  In support of this conclusion, Varity makes a complicated, four-step argument: Step One: Section 502(a)'s second subsection says that a plaintiff may bring a civil action for appropriate relief under section 409. Step Two: Section 409(a), in turn, reads: Liability for Breach of Fiduciary Duty Sec. 409. (a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equi- table or remedial relief as the court may deem appropriate, including removal of such fiduciary. . . . (Emphasis added.) Step Three: In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), this Court pointed to the aboveitalicized language in § 409 and concluded that this section (and its companion remedial provision, subsection (2)) did not authorize the plaintiff's suit for compensatory and punitive damages against an administrator who had wrongfully delayed payment of her benefit claim. The first two italicized phrases, the Court said, show that § 409's draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary. Id., at 142 (emphasis added). The Court added that, in this context, the last italicized phrase (other equitable or remedial relief) does not authorize any relief except for the plan itself. Id., at 144. Step Four: In light of Russell, as well as ERISA's language, structure, and purposes, one cannot read the third subsection (the subsection before us) as including (as appropriate) the very kind of action—an action for individual, rather than plan, relief—that this Court found Congress excluded in subsection (2). It is at this point, however, that we must disagree with Varity. We have reexamined Russell, as well as the relevant statutory language, structure, and purpose. And, in our view, they support the beneficiaries' view of the statute, not Varity's. First, Russell discusses § 502(a)'s second subsection, not its third subsection, and the language that the Court found limiting appears in a statutory section (§ 409) that the second subsection, not the third, cross-references. Russell `s plaintiff expressly disavowed reliance on the third subsection, id., at 139, n. 5, perhaps because she was seeking compensatory and punitive damages and subsection (3) authorizes only equitable relief. See Mertens, 508 U. S., at 255, 256-258, and n. 8 (compensatory and punitive damages are not equitable relief within the meaning of subsection (3)); ERISA § 409(a) (authorizing other equitable or remedial relief) (emphasis added). Further, Russell involved a complicating factor not present here, in that another remedial provision (subsection (1) ) already provided specific relief for the sort of injury the plaintiff had suffered (wrongful denial of benefits), but said nothing about the recovery of extracontractual damages, or about the possible consequences of delay in the plan administrators' processing of a disputed claim. Russell, supra, at 144. These differences lead us to conclude that Russell does not control, either implicitly or explicitly, the outcome of the case before us. Second, subsection (3)'s language does not favor Varity. The words of subsection (3)—appropriate equitable relief to redress any act or practice which violates any provision of this title—are broad enough to cover individual relief for breach of a fiduciary obligation. Varity argues that the title of § 409—Liability for Breach of Fiduciary Duty—means that § 409 (and its companion, subsection (2)) cover all such liability. But that is not what the title or the provision says. And other language in the statute suggests the contrary. Section 502(l), added in 1989, calculates a certain civil penalty as a percentage of the sum ordered by a court to be paid by such fiduciary . . . to a plan or its participants and beneficiaries  under subsection (5). Subsection (5) is identical to subsection (3), except that it authorizes suits by the Secretary, rather than the participants and beneficiaries. Compare § 502(a)(3) with § 502(a)(5). This new provision, therefore, seems to foresee instances in which the sort of relief provided by both subsection (5) and, by implication, subsection (3), would include an award to participants and beneficiaries, rather than to the plan, for breach of fiduciary obligation. Third, the statute's structure offers Varity little support. Varity notes that the second subsection refers specifically (through its § 409 cross-reference) to breaches of fiduciary duty, while the third subsection refers, as a kind of catchall, to all ERISA Title One violations. And it argues that a canon of statutory construction, namely the specific governs over the general, means that the more specific second (fiduciary breach) subsection makes the more general third (catchall) subsection inapplicable to claims of fiduciary breach. Canons of construction, however, are simply rules of thumb which will sometimes help courts determine the meaning of legislation. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992). To apply a canon properly one must understand its rationale. This Court has understood the present canon (the specific governs the general) as a warning against applying a general provision when doing so would undermine limitations created by a more specific provision. See, e. g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384-385 (1992); HCSC-Laundry v. United States, 450 U. S. 1, 6, 8 (1981); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 228-229 (1957). Yet, in this case, why should one believe that Congress intended the specific remedies in § 409 as a limitation? To the contrary, one can read § 409 as reflecting a special congressional concern about plan asset management without also finding that Congress intended that section to contain the exclusive set of remedies for every kind of fiduciary breach. After all, ERISA makes clear that a fiduciary has obligations other than, and in addition to, managing plan assets. See § 3(21)(A) (defining fiduciary as one who exercises any discretionary authority . . . respecting management of such plan or . . . respecting management or disposition of its assets) (emphasis added). For example, as the dissent concedes, post, at 530, a plan administrator engages in a fiduciary act when making a discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents. See § 404(a)(1)(D); Dept. of Labor, Interpretive Bulletin 75-8, 29 CFR § 2509.75-8 (1995) ([A] plan employee who has the final authority to authorize or disallow benefit payments in cases where a dispute exists as to the interpretation of plan provisions . . . would be a fiduciary); Moore v. Reynolds Metals Co. Retirement Program, 740 F. 2d 454, 457 (CA6 1984); Birmingham v. SogenSwiss Intern. Corp. Retirement Plan, 718 F. 2d 515, 521-522 (CA2 1983). And, as the Court pointed out in Russell, 473 U. S., at 144, ERISA specifically provides a remedy for breaches of fiduciary duty with respect to the interpretation of plan documents and the payment of claims, one that is outside the framework of the second subsection and crossreferenced § 409, and one that runs directly to the injured beneficiary. § 502(a)(1)(B). See also Firestone, 489 U. S., at 108. Why should we not conclude that Congress provided yet other remedies for yet other breaches of other sorts of fiduciary obligation in another, catchall remedial section? Such a reading is consistent with § 502's overall structure. Four of that section's six subsections focus upon specific areas, i. e., the first (wrongful denial of benefits and information), the second (fiduciary obligations related to the plan's financial integrity), the fourth (tax registration), and the sixth (civil penalties). The language of the other two subsections, the third and the fifth, creates two catchalls, providing appropriate equitable relief for any statutory violation. This structure suggests that these catchall provisions act as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy. And, contrary to Varity's argument, there is nothing in the legislative history that conflicts with this interpretation. See S. Rep. No. 93-127, p. 35 (1973), 1 Leg. Hist. 621 (describing Senate version of enforcement provisions as intended to provide both the Secretary and participants and beneficiaries with broad remedies for redressing or preventing violations of [ERISA]); H. R. Rep. No. 93-533, at 17, 2 Leg. Hist. 2364 (describing House version in identical terms). Fourth, ERISA's basic purposes favor a reading of the third subsection that provides the plaintiffs with a remedy. The statute itself says that it seeks to protect . . . the interests of participants . . . and . . . beneficiaries . . . by establishing standards of conduct, responsibility, and obligation for fiduciaries . . . and . . . providing for appropriate remedies . . . and ready access to the Federal courts. ERISA § 2(b). Section 404(a), in furtherance of this general objective, requires fiduciaries to discharge their duties solely in the interest of the participants and beneficiaries. Given these objectives, it is hard to imagine why Congress would want to immunize breaches of fiduciary obligation that harm individuals by denying injured beneficiaries a remedy. Amici supporting Varity find a strong contrary argument in an important, subsidiary congressional purpose—the need for a sensible administrative system. They say that holding that the Act permits individuals to enforce fiduciary obligations owed directly to them as individuals threatens to increase the cost of welfare benefit plans and thereby discourage employers from offering them. Consider a plan administrator's decision not to pay for surgery on the ground that it falls outside the plan's coverage. At present, courts review such decisions with a degree of deference to the administrator, provided that the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone, supra, at 115. But what will happen, ask amici, if a beneficiary can repackage his or her denial of benefits claim as a claim for breach of fiduciary duty? Wouldn't a court, they ask, then have to forgo deference and hold the administrator to the rigid level of conduct expected of fiduciaries? And, as a consequence, would there not then be two incompatible legal standards for courts hearing benefit claim disputes depending upon whether the beneficiary claimed simply denial of benefits, or a virtually identical breach of fiduciary duty? See Brief for Chamber of Commerce as Amicus Curiae 10. Consider, too, they add, a medical review board trying to decide whether certain proposed surgery is medically necessary. Will the board's awareness of a duty of loyalty to the surgery-seeking beneficiary not risk inadequate attention to the countervailing, but important, need to constrain costs in order to preserve the plan's funds? Id., at 11. Thus, amici warn that a legally enforceable duty of loyalty that extends beyond plan asset management to individual beneficiaries will risk these and other adverse consequences. Administrators will tend to interpret plan documents as requiring payments to individuals instead of trying to preserve plan assets; nonexpert courts will try to supervise too closely, and second guess, the often technical decisions of plan administrators; and, lawyers will complicate ordinary benefit claims by dressing them up in fiduciary duty clothing. The need to avoid these consequences, they conclude, requires us to accept Varity's position. The concerns that amici raise seem to us unlikely to materialize, however, for several reasons. First, a fiduciary obligation, enforceable by beneficiaries seeking relief for themselves, does not necessarily favor payment over nonpayment. The common law of trusts recognizes the need to preserve assets to satisfy future, as well as present, claims and requires a trustee to take impartial account of the interests of all beneficiaries. See Restatement (Second) of Trusts § 183 (discussing duty of impartiality); id., § 232 (same). Second, characterizing a denial of benefits as a breach of fiduciary duty does not necessarily change the standard a court would apply when reviewing the administrator's decision to deny benefits. After all, Firestone, which authorized deferential court review when the plan itself gives the administrator discretionary authority, based its decision upon the same common-law trust doctrines that govern standards of fiduciary conduct. See Restatement (Second) of Trusts § 187 (Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion) (as quoted in Firestone, 489 U. S., at 111). Third, the statute authorizes  appropriate  equitable relief. We should expect that courts, in fashioning appropriate equitable relief, will keep in mind the special nature and purpose of employee benefit plans, and will respect the policy choices reflected in the inclusion of certain remedies and the exclusion of others. Pilot Life Ins. Co., 481 U. S., at 54. See also Russell, 473 U. S., at 147; Mertens, 508 U. S., at 263-264. Thus, we should expect that where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case such relief normally would not be appropriate. Cf. Russell, supra, at 144. But that is not the case here. The plaintiffs in this case could not proceed under the first subsection because they were no longer members of the Massey-Ferguson plan and, therefore, had no benefits due [them] under the terms of [the] plan. § 502(a)(1)(B). They could not proceed under the second subsection because that provision, tied to § 409, does not provide a remedy for individual beneficiaries. Russell, supra, at 144. They must rely on the third subsection or they have no remedy at all. We are not aware of any ERISA-related purpose that denial of a remedy would serve. Rather, we believe that granting a remedy is consistent with the literal language of the statute, the Act's purposes, and pre-existing trust law. For these reasons, the judgment of the Court of Appeals is Affirmed.",by a participant or beneficiary
+72,92222,1,1,"Mr. Storrow, complainant's counsel, admitted in his oral argument that `forty-nine witnesses testified that they had heard speech in Drawbaugh's shop before the date of the Bell patent' (Oral Argument of Storrow, p. 149). Seventy witnesses heard talk through the Drawbaugh telephones, or were present when others successfully talked through them prior to Bell's alleged conception of the telephone June 2, 1875. One hundred and forty-nine witnesses actually saw the instruments, and two hundred and twenty testified to having heard of or seen them prior to that time. Many of the witnesses testified to such circumstances, facts, and records corroborative of their evidence as to make it impossible that they could have erred, and either their testimony is true or they committed wilful perjury. No attempt has been made to impeach them. The dates they positively aver are all prior to June, 1875, the year when Bell claimed to have first conceived the idea of the telephone. Of this class of witnesses are the following:  Wilson H. Strickler: Never was at Milltown but once. Had made an invention for insulating telegraph wires. Visited Drawbaugh for information and advice concerning that invention. Had not then filed his application for a patent. He and Drawbaugh talked to each other through the telephone at that time, and Drawbaugh explained to him how electricity operated it. Subsequently filed his application and obtained a patent for his invention. Produced the specifications and drawings as filed, and the patent as issued. Date of filing, August 22, 1874; date of patent, April 20, 1875 (Additional Proofs, p. 233).  George W. Bowman: Resides at Mechanicsburg. Drove to Eberly's Mills with his wife to attend a baptism. After the baptism drove to Drawbaugh's shop. This was during the lifetime of his wife's mother, who died in 1871. He then and there heard Drawbaugh talk through the telephone (Additional Proofs, p. 173).  Mrs. Maggie E. Bowman, wife of the above, corroborates his testimony. Her mother died March 14, 1871. Knows the baptism was before her mother's death, because it was upon her mother's persuasion that they went to attend it (Additional Proofs, p. 177).  Emanuel K. Gregory: Resided at Milltown from March to October, 1870. Then removed to Massachusetts. Has never been in Pennsylvania since until he testified. At Milltown worked at Drawbaugh's shop for faucet company. The company's books corroborate this. Assisted Drawbaugh in his experiments, and heard him talk through his telephone a number of times. Identifies B and F as the instruments (Additional Proofs, p. 185).  William H. Zearing: Had a pair of steelyards relettered by Daniel Drawbaugh. Entered the date and charge therefor in a book, November 23, 1873, as shown by book produced. Never had any steelyards relettered at any other time. When he went for them Drawbaugh talked to him through a telephone, saying among other things, The steelyards are finished. Zeering was the secretary of the school board of his township (Def. Sur. Reb. Testimony, p. 122). Other witnesses of the same class are: Goodyear (Def. Sur. Reb. Tes., p. 1011); David Stevenson, Jr. (Def. Add. Proofs, p. 141); his two daughters (Def. Add. Proofs, pp. 166, 169); William H. Martin (Def. Sur. Reb. Tes., p. 827); John Keefauver (Def. Sur. Reb. Tes., p. 837). See accompanying brief for many others.",Proofs of Drawbaugh's Priority.
+73,92222,1,2,"Of the above proofs the court say: `If they contained all the testimony in the case it would be more difficult to reach the conclusion that Drawbaugh's claim was not sustained. But in our opinion their effect has been completely overcome by the conduct of Drawbaugh, about which there is no dispute, from the time of his visit to the Centennial until he was put forward by the promoters of the People's Company, nearly four years afterwards, to contest the claims of Bell.' p. 565. This conduct, concerning which the court say there is no dispute, relates solely to his incapacity as a business man. It is true that there is no dispute as to his incapacity to use, to the best advantage, the opportunity his invention gave him; but the court has evidently overlooked much testimony to show the constant efforts he did make to secure capital from 1876 to 1880 to enter upon the contention which would be sure to follow an application for a patent. Among the witnesses on this point are: Moffitt (Def. Record, Vol. 1, p. 497); Chellis (Same, p. 526), and Shettel (Same, p. 214). The accompanying brief cites many other witnesses to Drawbaugh's constant and earnest seeking of assistance to push his telephone inventions.",Drawbaugh's Conduct.
+74,92222,1,4,"The failure of Drawbaugh to ascertain, when visiting the Centennial Exhibition, whether the telephone instruments there exhibited by Bell were similar to his own, seems to have been regarded by the court as strong evidence against his claim. But the court, after citing questions and answers from 386 to 398, inclusive, overlook the answer to the very next question, in which Drawbaugh testifies that none of the instruments he saw at Philadelphia were the instruments represented in the cuts of Bell's instruments as given in the record in this case. The testimony of Prof. Barker (Add. Proofs, p. 7) says that the Bell instruments were not easily accessible in the building at that time. They seem to have been merely exhibited to invited individuals at times of private tests. A fair inference from Drawbaugh's answers cited in the opinion of the court, and the one omitted is that he saw the instruments he supposed to be the subject of comment, and they were not telephones at all, but were harmonic telegraphic instruments, which his answers fairly describe.",Drawbaugh's Visit to the Centennial.
+75,92222,1,5,"The court say that he had apparently lost all interest in talking machines from 1876 to 1880. Such a conclusion could only be reached by overlooking the evidence of many witnesses. Among these are Stees and Johnson, who operated his carbon transmitter J at Harrisburg in May, 1878, months before the Blake transmitter was invented (Add. Proofs, pp. 209 and 198). He was constantly exhibiting his telephones during the whole of those four years to numerous witnesses, as will readily be seen by citations in the accompanying brief, but what is absolutely conclusive on this point is the fact that he made the most effective and finished telephones from 1876 to 1880.",Drawbaugh's Pursuit of his Invention.
+76,92222,1,6,"The cost of an application for a patent being small, the failure of Drawbaugh to make such application is taken by the court as evidence that he had no invention. But this view leaves out of consideration the certainty of interference proceedings, the cost of which he was advised would be enormous, which advice has since been abundantly justified.",Drawbaugh's Neglect to Apply for a Patent.
+77,92222,1,7,"Successful tests of Drawbaugh's instruments, both original and reproduced, were made in New York in 1882 and in Philadelphia in 1885. The court say that: `It is substantially conceded that the test in New York was a failure'; that `Occasionally sound was heard, and sometimes a word, but it would not transmit sentences.' That this was a very material error is shown by the testimony of Mr. Benjamin, at page 1278 of Def. Vol. 2, and by other witnesses. So far from it being conceded that the test at New York was a failure, it was conceded by complainants' counsel, Mr. Storrow, that it was a success. Concerning the single instrument F, he said: `There were one hundred and thirty-seven phrases uttered into it on the second day, seven of those were understood, and some words of seven more, and that is all. The third day they got better. They uttered one hundred and seventy-five phrases into the transmitter; thirty-five of those were heard.' (Oral argument in Circuit Court, p. 92, filed here.) The court was of the opinion that the instruments afterwards reproduced and tested at Philadelphia were `not the same,' but `differently constructed'; but the Bell Company's expert, Pope, swore that they differed only in being constructed more carefully, and with better workmanship (Complainant's Reply, p. 176). In the opinion of the court in this very case, it is said of Bell's original instrument: `The particular instrument which he had, and which he used in his experiments did not under the circumstances in which it was tried reproduce the words spoken so that they could be clearly understood, but the proof is abundant and of the most convincing character that other instruments carefully constructed and made exactly in accordance with the specifications, without any additions whatever, have operated and will operate successfully.' The court said the instruments were used in a different way at Philadelphia than at New York; that is to say, that at New York they rested on a table, while at Philadelphia they were held in the hand. But Prof. Barker testified that he used them both ways at Philadelphia, and that they worked best when standing on the table as they did at New York. (Barker, Ans. 81 and 84 Def. Add. Proofs, p. 28). This evidence is more fully treated in the accompanying brief.",The Tests at New York and Philadelphia.
+78,92222,1,8,"The court said that nobody knew the actual construction of the original machines except Drawbaugh himself. But there is much evidence beside that of Drawbaugh as to their construction, as will be seen by reference to the testimony cited in the accompanying brief, for example, H.K. Drawbaugh could reproduce the machines from memory. (Def., Vol. 1, pp. 566-7, Ans. 129, 130). Steinberger described one from memory. (Def., Vol. 1, pp. 344-6), and so did Schrader (Def. Sur. Reb., pp. 470-1, and see ten others cited in brief).  Finally. The court says, in its opinion: `We do not doubt that Drawbaugh may have conceived the idea that speech could be transmitted to a distance by means of electricity, and that he was experimenting upon that subject,' meaning, as is clear from the context, that he did this before Bell's invention.  The Drawbaugh story, then, is no afterthought growing out of Bell's discoveries, but is based upon the admitted facts of a prior conception of the possibility of electric speech-transmission and prior experiments actually made to accomplish it. The same witnesses who satisfy the judgment of the court as to these facts, identify the machines and testify to their successful working, and are neither impeached nor contradicted as to these additional facts. At another point, referring to Drawbaugh, the court says: `He was a skilful and ingenious mechanic... . He was also somewhat of an inventor, and had some knowledge of electricity. According to the testimony he was an enthusiast on the subject of his `talking-machine,' and showed it freely to his neighbors and people from the country when they visited his shop.' p. 557 supra. Taking these admitted facts together his prior conception of the possibility of electric speech transmission; his experiments to accomplish it; and, during his experiments his enthusiasm about the talking-machine — how can his enthusiasm be accounted for? Is it conceivable that enthusiasm resulted from constant failure? Can it be explained on any other reasonable theory than that his machines were producing the successful results about which the corroborating witnesses so abundantly testify? And why should he exhibit the invention so freely to the surrounding public, if it constantly failed to work when thus exhibited? Did he exhibit it as a failure or as a success? Can his conduct at the time, especially when taken in connection with his contemporary declarations that he had achieved the result, and was going to patent the invention, and wanted financial aid to secure the patents, be reconciled with any other theory than that of success? And is it not clear that the court has erred as to the evidential force of the facts which it admits to have been established? On account of the errors above referred to, which will be made more apparent by reference to the accompanying brief, and to the end, therefore, that equity may be done, and that this court may, upon fuller consideration and with the advantage of oral argument, revise its former opinion (if revision be right and proper), your petitioners pray that the court may be pleased to take their suggestions under a careful consideration and grant a rehearing upon the points upon which said decision was based, and grant such other relief and order as in equity and good conscience may be proper. New York, May 1st, 1888. LYSANDER HILL, GEORGE F. EDMUNDS, DON M. DICKINSON, CHARLES P. CROSBY, HENRY C. ANDREWS, Of Counsel with Appellants. There was also filed with this petition a full brief, signed by the same counsel, with many references to the evidence. MR. JUSTICE MILLER, May 14, 1888, delivered the opinion of the court. No Justice who united in the opinion of the court having asked for a rehearing, the application is denied.",The Construction of the Instruments.
+79,105103,1,2,"Substantively, due process of law renders what is due to a strong state as well as to a free individual. It tolerates all reasonable measures to insure the national safety, and it leaves a large, at times a potentially dangerous, latitude for executive judgment as to policies and means. [5] After all, the pillars which support our liberties are the three branches of government, and the burden could not be carried by our own power alone. Substantive due process will always pay a high degree of deference to congressional and executive judgment, especially when they concur, as to what is reasonable policy under conditions of particular times and circumstances. Close to the maximum of respect is due from the judiciary to the political departments in policies affecting security and alien exclusion. Harisiades v. Shaughnessy, 342 U. S. 580. Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government. Nor do I doubt that due process of law will tolerate some impounding of an alien where it is deemed essential to the safety of the state. Even the resident, friendly alien may be subject to executive detention without bail, for a reasonable period, pending consummation of deportation arrangements. Carlson v. Landon, 342 U. S. 524. The alien enemy may be confined or his property seized and administered because hostility is assumed from his continued allegiance to a hostile state. Cf. Ludecke v. Watkins, 335 U. S. 160; Zittman v. McGrath, 341 U. S. 446, and 341 U. S. 471. If due process will permit confinement of resident aliens friendly in fact because of imputed hostility, I should suppose one personally at war with our institutions might be confined, even though his state is not at war with us. In both cases, the underlying consideration is the power of our system of government to defend itself, and changing strategy of attack by infiltration may be met with changed tactics of defense. Nor do I think the concept of due process so paralyzing that it forbids all detention of an alien as a preventive measure against threatened dangers and makes confinement lawful only after the injuries have been suffered. In some circumstances, even the citizen in default of bail has long been subject to federal imprisonment for security of the peace and good behavior. [6] While it is usually applied for express verbal threats, no reason is known to me why the power is not the same in the case of threats inferred by proper procedures from circumstances. The British, with whom due process is a habit, if not a written constitutional dictum, permit a court in a limited class of cases to pass a sentence of preventive detention if satisfied that it is expedient for the protection of the public. [7] I conclude that detention of an alien would not be inconsistent with substantive due process, provided—and this is where my dissent begins—he is accorded procedural due process of law.",substantive due process.
+80,105103,1,3,"Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which comprise substantive law. If it be conceded that in some way this alien could be confined, does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration. Cf. Knauff v. Shaughnessy, 338 U. S. 537, which was a near miss, saved by further administrative and congressional hearings from perpetrating an injustice. See Knauff, The Ellen Knauff Story (New York 1952). Our law may, and rightly does, place more restrictions on the alien than on the citizen. But basic fairness in hearing procedures does not vary with the status of the accused. If the procedures used to judge this alien are fair and just, no good reason can be given why they should not be extended to simplify the condemnation of citizens. If they would be unfair to citizens, we cannot defend the fairness of them when applied to the more helpless and handicapped alien. This is at the root of our holdings that the resident alien must be given a fair hearing to test an official claim that he is one of a deportable class. Wong Yang Sung v. McGrath, 339 U. S. 33. The most scrupulous observance of due process, including the right to know a charge, to be confronted with the accuser, to cross-examine informers and to produce evidence in one's behalf, is especially necessary where the occasion of detention is fear of future misconduct, rather than crimes committed. Both the old proceeding by which one may be bound to keep the peace and the newer British preventive detention are safeguarded with full rights to judicial hearings for the accused. On the contrary, the Nazi regime in Germany installed a system of protective custody by which the arrested could claim no judicial or other hearing process, [8] and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. That is what renders Communist justice such a travesty. There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government's theory of custody for safekeeping without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the protective custody of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere. That these apprehensive surmises are not such stuff as dreams are made on appears from testimony of a top immigration official concerning an applicant that He has no rights. Because the respondent has no right of entry, does it follow that he has no rights at all? Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat. Would not such measures be condemned judicially as a deprivation of life without due process of law? Suppose the authorities decide to disable an alien from entry by confiscating his valuables and money. Would we not hold this a taking of property without due process of law? Here we have a case that lies between the taking of life and the taking of property; it is the taking of liberty. It seems to me that this, occurring within the United States or its territorial waters, may be done only by proceedings which meet the test of due process of law. Exclusion of an alien without judicial hearing, of course, does not deny due process when it can be accomplished merely by turning him back on land or returning him by sea. But when indefinite confinement becomes the means of enforcing exclusion, it seems to me that due process requires that the alien be informed of its grounds and have a fair chance to overcome them. This is the more due him when he is entrapped into leaving the other shore by reliance on a visa which the Attorney General refuses to honor. It is evident that confinement of respondent no longer can be justified as a step in the process of turning him back to the country whence he came. Confinement is no longer ancillary to exclusion; it can now be justified only as the alternative to normal exclusion. It is an end in itself. The Communist conspiratorial technique of infiltration poses a problem which sorely tempts the Government to resort to confinement of suspects on secret information secretly judged. I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else. Congress has ample power to determine whom we will admit to our shores and by what means it will effectuate its exclusion policy. The only limitation is that it may not do so by authorizing United States officers to take without due process of law the life, the liberty or the property of an alien who has come within our jurisdiction; and that means he must meet a fair hearing with fair notice of the charges. [9] It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone.",procedural due process.
+81,106659,2,1,"Because this is the first case which has required this Court to consider the application of the antitrust laws to the commercial banking industry, and because aspects of the industry and of the degree of governmental regulation of it will recur throughout our discussion, we deem it appropriate to begin with a brief background description. [2] Commercial banking in this country is primarily unit banking. That is, control of commercial banking is diffused throughout a very large number of independent, local banks—13,460 of them in 1960—rather than concentrated in a handful of nationwide banks, as, for example, in England and Germany. There are, to be sure, in addition to the independent banks, some 10,000 branch banks; but branching, which is controlled largely by state law—and prohibited altogether by some States—enables a bank to extend itself only to state lines and often not that far. [3] It is also the case, of course, that many banks place loans and solicit deposits outside their home area. But with these qualifications, it remains true that ours is essentially a decentralized system of community banks. Recent years, however, have witnessed a definite trend toward concentration. Thus, during the decade ending in 1960 the number of commercial banks in the United States declined by 714, despite the chartering of 887 new banks and a very substantial increase in the Nation's credit needs during the period. Of the 1,601 independent banks which thus disappeared, 1,503, with combined total resources of well over $25,000,000,000, disappeared as the result of mergers. Commercial banks are unique among financial institutions in that they alone are permitted by law to accept demand deposits. This distinctive power gives commercial banking a key role in the national economy. For banks do not merely deal in, but are actually a source of, money and credit; when a bank makes a loan by crediting the borrower's demand deposit account, it augments the Nation's credit supply. [4] Furthermore, the power to accept demand deposits makes banks the intermediaries in most financial transactions (since transfers of substantial moneys are almost always by check rather than by cash) and, concomitantly, the repositories of very substantial individual and corporate funds. The banks' use of these funds is conditioned by the fact that their working capital consists very largely of demand deposits, which makes liquidity the guiding principle of bank lending and investing policies; thus it is that banks are the chief source of the country's short-term business credit. Banking operations are varied and complex; commercial banking describes a congeries of services and credit devices. [5] But among them the creation of additional money and credit, the management of the checkingaccount system, and the furnishing of short-term business loans would appear to be the most important. For the proper discharge of these functions is indispensable to a healthy national economy, as the role of bank failures in depression periods attests. It is therefore not surprising that commercial banking in the United States is subject to a variety of governmental controls, state and federal. Federal regulation is the more extensive, and our focus will be upon it. It extends not only to the national banks, i. e., banks chartered under federal law and supervised by the Comptroller of the Currency, see 12 U. S. C. § 21 et seq. For many state banks, see 12 U. S. C. § 321, as well as virtually all the national banks, 12 U. S. C. § 222, are members of the Federal Reserve System (FRS), and more than 95% of all banks, see 12 U. S. C. § 1815, are insured by the Federal Deposit Insurance Corporation (FDIC). State member and nonmember insured banks are subject to a federal regulatory scheme almost as elaborate as that which governs the national banks. The governmental controls of American banking are manifold. First, the Federal Reserve System, through its open-market operations, see 12 U. S. C. §§ 263 (c), 353-359, control of the rediscount rate, see 12 U. S. C. § 357, and modifications of reserve requirements, see 12 U. S. C. §§ 462, 462b, regulates the supply of money and credit in the economy and thereby indirectly regulates the interest rates of bank loans. This is not, however, rate regulation. The Reserve System's activities are only designed to influence the prime, i. e., minimum, bank interest rate. There is no federal control of the maximum, although all banks, state and national, are subject to state usury laws where applicable. See 12 U. S. C. § 85. In the range between the maximum fixed by state usury laws and the practical minimum set by federal fiscal policies (there is no law against undercutting the prime rate but bankers seldom do), bankers are free to price their loans as they choose. Moreover, charges for other banking services, such as service charges for checking privileges, are free of governmental regulation, state or federal. Entry, branching, and acquisitions are covered by a network of state and federal statutes. A charter for a new bank, state or national, will not be granted unless the invested capital and management of the applicant, and its prospects for doing sufficient business to operate at a reasonable profit, give adequate protection against undue competition and possible failure. See, e. g., 12 U. S. C. §§ 26, 27, 51; 12 CFR § 4.1 (b); Pa. Stat. Ann., Tit. 7, § 819-306. Failure to meet these standards may cause the FDIC to refuse an application for insurance, 12 U. S. C. §§ 1815, 1816, and may cause the FDIC, Federal Reserve Board (FRB), and Comptroller to refuse permission to branch to insured, member, and national banks, respectively. 12 U. S. C. §§ 36, 321, 1828 (d). Permission to merge, consolidate, acquire assets, or assume liabilities may be refused by the agencies on the same grounds. 12 U. S. C. (1958 ed., Supp. IV) § 1828 (c), note 8, infra. Furthermore, national banks appear to be subject to state geographical limitations on branching. See 12 U. S. C. § 36 (c). Banks are also subject to a number of specific provisions aimed at ensuring sound banking practices. For example, member banks of the Federal Reserve System may not pay interest on demand deposits, 12 U. S. C. § 371a, may not invest in common stocks or hold for their own account investment securities of any one obligor in excess of 10% of the bank's unimpaired capital and surplus, see 12 U. S. C. §§ 24 Seventh, 335, and may not pay interest on time or savings deposits above the rate fixed by the FRB, 12 U. S. C. § 371b. The payment of interest on deposits by nonmember insured banks is also federally regulated. 12 U. S. C. (1958 ed., Supp. IV) § 1828 (g); 12 CFR, 1962 Supp., Part 329. In the case of national banks, the 10% limit on the obligations of a single obligor includes loans as well as investment securities. See 12 U. S. C. § 84. Pennsylvania imposes the same limitation upon banks chartered under its laws, such as Girard. Pa. Stat. Ann. (1961 Supp.), Tit. 7, § 819-1006. But perhaps the most effective weapon of federal regulation of banking is the broad visitatorial power of federal bank examiners. Whenever the agencies deem it necessary, they may order a thorough examination of all the affairs of the bank, whether it be a member of the FRS or a nonmember insured bank. 12 U. S. C. §§ 325, 481, 483, 1820 (b); 12 CFR § 4.2. Such examinations are frequent and intensive. In addition, the banks are required to furnish detailed periodic reports of their operations to the supervisory agencies. 12 U. S. C. §§ 161, 324, 1820 (e). In this way the agencies maintain virtually a day-to-day surveillance of the American banking system. And should they discover unsound banking practices, they are equipped with a formidable array of sanctions. If in the judgment of the FRB a member bank is making undue use of bank credit, the Board may suspend the bank from the use of the credit facilities of the FRS. 12 U. S. C. § 301. The FDIC has an even more formidable power. If it finds unsafe or unsound practices in the conduct of the business of any insured bank, it may terminate the bank's insured status. 12 U. S. C. § 1818 (a). Such involuntary termination severs the bank's membership in the FRS, if it is a state bank, and throws it into receivership if it is a national bank. 12 U. S. C. § 1818 (b). Lesser, but nevertheless drastic, sanctions include publication of the results of bank examinations. 12 U. S. C. §§ 481, 1828 (f). As a result of the existence of this panoply of sanctions, recommendations by the agencies concerning banking practices tend to be followed by bankers without the necessity of formal compliance proceedings. 1 Davis, Administrative Law (1958), § 4.04. Federal supervision of banking has been called [p]robably the outstanding example in the federal government of regulation of an entire industry through methods of supervision . . . . The system may be one of the most successful [systems of economic regulation], if not the most successful. Id., § 4.04, at 247. To the efficacy of this system we may owe, in part, the virtual disappearance of bank failures from the American economic scene. [6]",The Background: Commercial Banking in the United States.
+82,106659,2,2,"The Philadelphia National Bank and Girard Trust Corn Exchange Bank are, respectively, the second and third largest of the 42 commercial banks with head offices in the Philadelphia metropolitan area, which consists of the City of Philadelphia and its three contiguous counties in Pennsylvania. The home county of both banks is the city itself; Pennsylvania law, however, permits branching into the counties contiguous to the home county, Pa. Stat. Ann. (1961 Supp.), Tit. 7, § 819-204.1, and both banks have offices throughout the four-county area. PNB, a national bank, has assets of over $1,000,000,000, making it (as of 1959) the twenty-first largest bank in the Nation. Girard, a state bank, is a member of the FRS and is insured by the FDIC; it has assets of about $750,000,000. Were the proposed merger to be consummated, the resulting bank would be the largest in the four-county area, with (approximately) 36% of the area banks' total assets, 36% of deposits, and 34% of net loans. It and the second largest (First Pennsylvania Bank and Trust Company, now the largest) would have between them 59% of the total assets, 58% of deposits, and 58% of the net loans, while after the merger the four largest banks in the area would have 78% of total assets, 77% of deposits, and 78% of net loans. The present size of both PNB and Girard is in part the result of mergers. Indeed, the trend toward concentration is noticeable in the Philadelphia area generally, in which the number of commercial banks has declined from 108 in 1947 to the present 42. Since 1950, PNB has acquired nine formerly independent banks and Girard six; and these acquisitions have accounted for 59% and 85% of the respective banks' asset growth during the period, 63% and 91% of their deposit growth, and 12% and 37% of their loan growth. During this period, the seven largest banks in the area increased their combined share of the area's total commercial bank resources from about 61% to about 90%. In November 1960 the boards of directors of the two banks approved a proposed agreement for their consolidation under the PNB charter. By the terms of the agreement, PNB's stockholders were to retain their share certificates, which would be deemed to represent an equal number of shares in the consolidated bank, while Girard's stockholders would surrender their shares in exchange for shares in the consolidated bank, receiving 1.2875 such shares for each Girard share. Such a consolidation is authorized, subject to the approval of the Comptroller of the Currency, by 12 U. S. C. (1958 ed., Supp. IV) § 215. [7] But under the Bank Merger Act of 1960, 12 U. S. C. (1963 ed., Supp. IV) § 1828 (c), the Comptroller may not give his approval until he has received reports from the other two banking agencies and the Attorney General respecting the probable effects of the proposed transaction on competition. [8] All three reports advised that the proposed merger would have substantial anticompetitive effects in the Philadelphia metropolitan area. However, on February 24, 1961, the Comptroller approved the merger. No opinion was rendered at that time. But as required by § 1828 (c), the Comptroller explained the basis for his decision to approve the merger in a statement to be included in his annual report to Congress. As to effect upon competition, he reasoned that [s]ince there will remain an adequate number of alternative sources of banking service in Philadelphia, and in view of the beneficial effects of this consolidation upon international and national competition it was concluded that the over-all effect upon competition would not be unfavorable. He also stated that the consolidated bank would be far better able to serve the convenience and needs of its community by being of material assistance to its city and state in their efforts to attract new industry and to retain existing industry. The day after the Comptroller approved the merger, the United States commenced the present action. No steps have been taken to consummate the merger pending the outcome of this litigation.",The Proposed Merger of PNB and Girard.
+83,106659,2,3,"The Government's case in the District Court relied chiefly on statistical evidence bearing upon market structure and on testimony by economists and bankers to the effect that, notwithstanding the intensive governmental regulation of banking, there was a substantial area for the free play of competitive forces; that concentration of commercial banking, which the proposed merger would increase, was inimical to that free play; that the principal anticompetitive effect of the merger would be felt in the area in which the banks had their offices, thus making the four-county metropolitan area the relevant geographical market; and that commercial banking was the relevant product market. The defendants, in addition to offering contrary evidence on these points, attempted to show business justifications for the merger. They conceded that both banks were economically strong and had sound management, but offered the testimony of bankers to show that the resulting bank, with its greater prestige and increased lending limit, [9] would be better able to compete with large out-of-state (particularly New York) banks, would attract new business to Philadelphia, and in general would promote the economic development of the metropolitan area. [10] Upon this record, the District Court held that: (1) the passage of the Bank Merger Act of 1960 did not repeal by implication the antitrust laws insofar as they may apply to bank mergers; (2) § 7 of the Clayton Act is inapplicable to bank mergers because banks are not corporations subject to the jurisdiction of the Federal Trade Commission; (3) but assuming that § 7 is applicable, the four-county Philadelphia metropolitan area is not the relevant geographical market because PNB and Girard actively compete with other banks for bank business throughout the greater part of the northeastern United States; (4) but even assuming that § 7 is applicable and that the four-county area is the relevant market, there is no reasonable probability that competition among commercial banks in the area will be substantially lessened as the result of the merger; (5) since the merger does not violate § 7 of the Clayton Act, a fortiori it does not violate § 1 of the Sherman Act; (6) the merger will benefit the Philadelphia metropolitan area economically. The District Court also ruled that for the purposes of § 7, commercial banking is a line of commerce; the appellees do not contest this ruling.",The Trial and the District Court's Decision.
+84,106659,2,2,"Appellees contended below that the Bank Merger Act, by directing the banking agencies to consider competitive factors before approving mergers, 12 U. S. C. (1958 ed., Supp. IV) § 1828 (c), note 8, supra, immunizes approved mergers from challenge under the federal antitrust laws. [26] We think the District Court was correct in rejecting this contention. No express immunity is conferred by the Act. [27] Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, [28] and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions. [29] Two recent cases, Pan American World Airways v. United States, 371 U. S. 296, and California v. Federal Power Comm'n, 369 U. S. 482, illustrate this principle. In Pan American, the Court held that because the Civil Aeronautics Board had been given broad powers to enforce the competitive standard clearly delineated by the Civil Aeronautics Act, and to immunize a variety of transactions from the operation of the antitrust laws, the Sherman Act could not be applied to facts composing the precise ingredients of a case subject to the Board's broad regulatory and remedial powers; in contrast, the banking agencies have authority neither to enforce the antitrust laws against mergers, cf. note 22, supra, nor to grant immunity from those laws. In the California case, on the other hand, the Court held that the FPC's approval of a merger did not confer immunity from § 7 of the Clayton Act, even though, as in the instant case, the agency had taken the competitive factor into account in passing upon the merger application. See 369 U. S., at 484-485, 487-488. We think California is controlling here. Although the Comptroller was required to consider effect upon competition in passing upon appellees' merger application, he was not required to give this factor any particular weight; he was not even required to (and did not) hold a hearing before approving the application; and there is no specific provision for judicial review of his decision. [30] Plainly, the range and scope of administrative powers under the Bank Merger Act bear little resemblance to those involved in Pan American. Nor did Congress, in passing the Bank Merger Act, embrace the view that federal regulation of banking is so comprehensive that enforcement of the antitrust laws would be either unnecessary, in light of the completeness of the regulatory structure, or disruptive of that structure. On the contrary, the legislative history of the Act seems clearly to refute any suggestion that applicability of the antitrust laws was to be affected. Both the House and Senate Committee Reports stated that the Act would not affect in any way the applicability of the antitrust laws to bank acquisitions. H. R. Rep. No. 1416, 86th Cong., 2d Sess. 9; S. Rep. No. 196, 86th Cong., 1st Sess. 3. See also, e. g., 105 Cong. Rec. 8131 (remarks of Senator Robertson, the Act's sponsor). Moreover, bank regulation is in most respects less complete than public utility regulation, to which interstate rail and air carriers, among others, are subject. Rate regulation in the banking industry is limited and largely indirect, see p. 328, supra; banks are under no duty not to discriminate in their services; and though the location of bank offices is regulated, banks may do business—place loans and solicit deposits—where they please. The fact that the banking agencies maintain a close surveillance of the industry with a view toward preventing unsound practices that might impair liquidity or lead to insolvency does not make federal banking regulation all-pervasive, although it does minimize the hazards of intense competition. Indeed, that there are so many direct public controls over unsound competitive practices in the industry refutes the argument that private controls of competition are necessary in the public interest and ought therefore to be immune from scrutiny under the antitrust laws. Cf. Kaysen and Turner, Antitrust Policy (1959), 206. We note, finally, that the doctrine of primary jurisdiction is not applicable here. That doctrine requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme. See Far East Conference v. United States, 342 U. S. 570; Great Northern R. Co. v. Merchants Elevator Co., 259 U. S. 285; Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv. L. Rev. 436, 464 (1954). [31] Court jurisdiction is not thereby ousted, but only postponed. See General Am. Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, 433; Federal Maritime Bd. v. Isbrandtsen Co., 356 U. S. 481, 498-499; 3 Davis, Administrative Law (1958), 1-55. Thus, even if we were to assume the applicability of the doctrine to merger-application proceedings before the banking agencies, [32] the present action would not be barred, for the agency proceeding was completed before the antitrust action was commenced. Cf. United States v. Western Pac. R. Co., 352 U. S. 59, 69; Retail Clerks Int'l Assn. v. Schermerhorn, 373 U. S. 746, 756. We recognize that the practical effect of applying the doctrine of primary jurisdiction has sometimes been to channel judicial enforcement of antitrust policy into appellate review of the agency's decision, see Federal Maritime Bd. v. Isbrandtsen Co., supra ; cf. D. L. Piazza Co. v. West Coast Line, Inc., 210 F. 2d 947 (C. A. 2d Cir. 1954), or even to preclude such enforcement entirely if the agency has the power to approve the challenged activities, see United States Nav. Co. v. Cunard S. S. Co., 284 U. S. 474; cf. United States v. Railway Express Agency, 101 F. Supp. 1008 (D. C. D. Del. 1951); but see Federal Maritime Bd. v. Isbrandtsen Co., supra . But here there may be no power of judicial review of the administrative decision approving the merger, and such approval does not in any event confer immunity from the antitrust laws, see pp. 350-352, supra. Furthermore, the considerations that militate against finding a repeal of the antitrust laws by implication from the existence of a regulatory scheme also argue persuasively against attenuating, by postponing, the courts' jurisdiction to enforce those laws. It should be unnecessary to add that in holding as we do that the Bank Merger Act of 1960 does not preclude application of § 7 of the Clayton Act to bank mergers, we deprive the later statute of none of its intended force. Congress plainly did not intend the 1960 Act to extinguish other sources of federal restraint of bank acquisitions having anticompetitive effects. For example, Congress certainly knew that bank mergers would continue subject to the Sherman Act, see p. 352, supra, as well as that pure stock acquisitions by banks would continue subject to § 7 of the Clayton Act. If, in addition, bank mergers are subject to § 7, we do not see how the objectives of the 1960 Act are thereby thwarted. It is not as if the Clayton and Sherman Acts embodied approaches to antitrust policy inconsistent with or unrelated to each other. The Sherman Act, of course, forbids mergers effecting an unreasonable restraint of trade. See, e. g., Northern Securities Co. v. United States, 193 U. S. 197; United States v. Union Pac. R. Co., 226 U. S. 61; indeed, there is presently pending before this Court a challenge to a bank merger predicated solely on the Sherman Act. United States v. First Nat. Bank & Trust Co. of Lexington, prob. juris. noted, post, p. 824. And the tests of illegality under the Sherman and Clayton Acts are complementary. [T]he public policy announced by § 7 of the Clayton Act is to be taken into consideration in determining whether acquisition of assets . . . violates the prohibitions of the Sherman Act against unreasonable restraints. United States v. Columbia Steel Co., 334 U. S. 495, 507, n. 7; see Note, 52 Col. L. Rev. 766, 768, n. 10 (1952). To be sure, not every violation of § 7, as amended, would necessarily be a violation of the Sherman Act; our point is simply that since Congress passed the 1960 Act with no intention of displacing the enforcement of the Sherman Act against bank mergers—or even of § 7 against pure stock acquisitions by banks—continued application of § 7 to bank mergers cannot be repugnant to the design of the 1960 Act. It would be anomalous to conclude that Congress, while intending the Sherman Act to remain fully applicable to bank mergers, and § 7 of the Clayton Act to remain fully applicable to pure stock acquisitions by banks, nevertheless intended § 7 to be completely inapplicable to bank mergers.",The Effect of the Bank Merger Act of 1960.
+85,112901,1,5,"[T]he question facing triers of fact in discrimination cases is both sensitive and difficult. The prohibitions against discrimination contained in the Civil Rights Act of 1964 reflect an important national policy. There will seldom be `eyewitness' testimony as to the employer's mental processes. But none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact. Nor should they make their inquiry even more difficult by applying legal rules which were devised to govern `the basic allocation of burdens and order of presentation of proof,' Burdine, 450 U. S., at 252, in deciding this ultimate question. 460 U. S., at 716. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.",We reaffirm today what we said in Aikens:
+86,112097,1,5,"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall — (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law. [4] Doe v. Casey, 254 U. S. App. D. C. 282, 293, and n. 41, 796 F. 2d 1508, 1519, and n. 41 (1986) (citing CIA Regulation HR 20-27m). [5] This arbitrary and capricious standard is derived from § 706(2)(A), see n. 3, supra. [6] The dissenting judge argued that Congress intended to preclude such review in creating § 102(c), and that the decision to discharge an employee was committed by that section to Agency discretion. He concluded that neither the statutory nor constitutional claims arising from a § 102(c) discharge are judicially reviewable under the APA. [7] We understand that petitioner concedes that the Agency's failure to follow its own regulations can be challenged under the APA as a violation of § 102(c). See Reply Brief for Appellant in No. 85-5291 (CADC), p. 18 ( Doe v. Casey, 254 U. S. App. D. C. 282, 796 F. 2d 1508 (1986)); see also Service v. Dulles, 354 U. S. 363 (1957) (recognizing the right of federal courts to review an agency's actions to ensure that its own regulations have been followed); Sampson v. Murray, 415 U. S. 61, 71 (1974) (stating that `federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations). The Court of Appeals, however, found that the CIA's own regulations plainly protect the discretion granted the Director by § 102(c), and that the regulations provid[e] no independent source of procedural or substantive protections. Doe v. Casey, supra, at 294, 796 F. 2d, at 1520. Thus, since petitioner prevailed on this ground below and does not seek further review of the question here, we do not reach that issue. [8] Petitioner asserts, see Brief for Petitioner 27-28, n. 23, that respondent fails to present a colorable constitutional claim when he asserts that there is a general CIA policy against employing homosexuals. Petitioner relies on our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to support this view. This question was not presented in the petition for certiorari, and we decline to consider it at this stage of the litigation. [] Technically, this provision merely precludes judicial review under the judicial review provisions of the Administrative Procedure Act (APA), that is, under Chapter 7 of Title 5 of the United States Code. However, at least with respect to all entities that come within the Chapter's definition of agency, see 5 U. S. C. § 701(b), if review is not available under the APA it is not available at all. Chapter 7 (originally enacted as § 10 of the APA) is an umbrella statute governing judicial review of all federal agency action. While a right to judicial review of agency action may be created by a separate statutory or constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excluded, see 5 U. S. C. § 559. To my knowledge, no specific exclusion exists.",Scope of review
+87,111239,1,1,"Since its inception in 1905, the NCAA has played an important role in the regulation of amateur collegiate sports. It has adopted and promulgated playing rules, standards of amateurism, standards for academic eligibility, regulations concerning recruitment of athletes, and rules governing the size of athletic squads and coaching staffs. In some sports, such as baseball, swimming, basketball, wrestling, and track, it has sponsored and conducted national tournaments. It has not done so in the sport of football, however. With the exception of football, the NCAA has not undertaken any regulation of the televising of athletic events. [2] The NCAA has approximately 850 voting members. The regular members are classified into separate divisions to reflect differences in size and scope of their athletic programs. Division I includes 276 colleges with major athletic programs; in this group only 187 play intercollegiate football. Divisions II and III include approximately 500 colleges with less extensive athletic programs. Division I has been subdivided into Divisions I-A and I-AA for football. Some years ago, five major conferences together with major football-playing independent institutions organized the College Football Association (CFA). The original purpose of the CFA was to promote the interests of major football-playing schools within the NCAA structure. The Universities of Oklahoma and Georgia, respondents in this Court, are members of the CFA. History of the NCAA Television Plan In 1938, the University of Pennsylvania televised one of its home games. [3] From 1940 through the 1950 season all of Pennsylvania's home games were televised. App. 303. That was the beginning of the relationship between television and college football. On January 11, 1951, a three-person Television Committee, appointed during the preceding year, delivered a report to the NCAA's annual convention in Dallas. Based on preliminary surveys, the committee had concluded that television does have an adverse effect on college football attendance and unless brought under some control threatens to seriously harm the nation's overall athletic and physical system. Id., at 265. The report emphasized that the television problem is truly a national one and requires collective action by the colleges. Id., at 270. As a result, the NCAA decided to retain the National Opinion Research Center (NORC) to study the impact of television on live attendance, and to declare a moratorium on the televising of football games. A television committee was appointed to implement the decision and to develop an NCAA television plan for 1951. Id., at 277-278. The committee's 1951 plan provided that only one game a week could be telecast in each area, with a total blackout on 3 of the 10 Saturdays during the season. A team could appear on television only twice during a season. The plan also provided that the NORC would conduct a systematic study of the effects of the program on attendance. Id., at 279. The plan received the virtually unanimous support of the NCAA membership; only the University of Pennsylvania challenged it. Pennsylvania announced that it would televise all its home games. The council of the NCAA thereafter declared Pennsylvania a member in bad standing and the four institutions scheduled to play at Pennsylvania in 1951 refused to do so. Pennsylvania then reconsidered its decision and abided by the NCAA plan. Id., at 280-281. During each of the succeeding five seasons, studies were made which tended to indicate that television had an adverse effect on attendance at college football games. During those years the NCAA continued to exercise complete control over the number of games that could be televised. Id., at 325-359. From 1952 through 1977 the NCAA television committee followed essentially the same procedure for developing its television plans. It would first circulate a questionnaire to the membership and then use the responses as a basis for formulating a plan for the ensuing season. The plan was then submitted to a vote by means of a mail referendum. Once approved, the plan formed the basis for NCAA's negotiations with the networks. Throughout this period the plans retained the essential purposes of the original plan. See 546 F. Supp., at 1283. [4] Until 1977 the contracts were all for either 1- or 2-year terms. In 1977 the NCAA adopted principles of negotiation for the future and discontinued the practice of submitting each plan for membership approval. Then the NCAA also entered into its first 4-year contract granting exclusive rights to the American Broadcasting Cos. (ABC) for the 1978-1981 seasons. ABC had held the exclusive rights to network telecasts of NCAA football games since 1965. Id., at 1283-1284. The Current Plan The plan adopted in 1981 for the 1982-1985 seasons is at issue in this case. [5] This plan, like each of its predecessors, recites that it is intended to reduce, insofar as possible, the adverse effects of live television upon football game attendance. [6] It provides that all forms of television of the football games of NCAA member institutions during the Plan control periods shall be in accordance with this Plan. App. 35. The plan recites that the television committee has awarded rights to negotiate and contract for the telecasting of college football games of members of the NCAA to two carrying networks. Id., at 36. In addition to the principal award of rights to the carrying networks, the plan also describes rights for a supplementary series that had been awarded for the 1982 and 1983 seasons, [7] as well as a procedure for permitting specific exception telecasts. [8] In separate agreements with each of the carrying networks, ABC and the Columbia Broadcasting System (CBS), the NCAA granted each the right to telecast the 14 live exposures described in the plan, in accordance with the ground rules set forth therein. [9] Each of the networks agreed to pay a specified minimum aggregate compensation to the participating NCAA member institutions during the 4-year period in an amount that totaled $131,750,000. In essence the agreement authorized each network to negotiate directly with member schools for the right to televise their games. The agreement itself does not describe the method of computing the compensation for each game, but the practice that has developed over the years and that the District Court found would be followed under the current agreement involved the setting of a recommended fee by a representative of the NCAA for different types of telecasts, with national telecasts being the most valuable, regional telecasts being less valuable, and Division II or Division III games commanding a still lower price. [10] The aggregate of all these payments presumably equals the total minimum aggregate compensation set forth in the basic agreement. Except for differences in payment between national and regional telecasts, and with respect to Division II and Division III games, the amount that any team receives does not change with the size of the viewing audience, the number of markets in which the game is telecast, or the particular characteristic of the game or the participating teams. Instead, the ground rules provide that the carrying networks make alternate selections of those games they wish to televise, and thereby obtain the exclusive right to submit a bid at an essentially fixed price to the institutions involved. See 546 F. Supp., at 1289-1293. [11] The plan also contains appearance requirements and appearance limitations which pertain to each of the 2-year periods that the plan is in effect. The basic requirement imposed on each of the two networks is that it must schedule appearances for at least 82 different member institutions during each 2-year period. Under the appearance limitations no member institution is eligible to appear on television more than a total of six times and more than four times nationally, with the appearances to be divided equally between the two carrying networks. See id., at 1293. The number of exposures specified in the contracts also sets an absolute maximum on the number of games that can be broadcast. Thus, although the current plan is more elaborate than any of its predecessors, it retains the essential features of each of them. It limits the total amount of televised intercollegiate football and the number of games that any one team may televise. No member is permitted to make any sale of television rights except in accordance with the basic plan. Background of this Controversy Beginning in 1979 CFA members began to advocate that colleges with major football programs should have a greater voice in the formulation of football television policy than they had in the NCAA. CFA therefore investigated the possibility of negotiating a television agreement of its own, developed an independent plan, and obtained a contract offer from the National Broadcasting Co. (NBC). This contract, which it signed in August 1981, would have allowed a more liberal number of appearances for each institution, and would have increased the overall revenues realized by CFA members. See id., at 1286. In response the NCAA publicly announced that it would take disciplinary action against any CFA member that complied with the CFA-NBC contract. The NCAA made it clear that sanctions would not be limited to the football programs of CFA members, but would apply to other sports as well. On September 8, 1981, respondents commenced this action in the United States District Court for the Western District of Oklahoma and obtained a preliminary injunction preventing the NCAA from initiating disciplinary proceedings or otherwise interfering with CFA's efforts to perform its agreement with NBC. Notwithstanding the entry of the injunction, most CFA members were unwilling to commit themselves to the new contractual arrangement with NBC in the face of the theatened sanctions and therefore the agreement was never consummated. See id., at 1286-1287. Decision of the District Court After a full trial, the District Court held that the controls exercised by the NCAA over the televising of college football games violated the Sherman Act. The District Court defined the relevant market as live college football television because it found that alternative programming has a significantly different and lesser audience appeal. Id., at 1297-1300. [12] The District Court then concluded that the NCAA controls over college football are those of a classic cartel with an almost absolute control over the supply of college football which is made available to the networks, to television advertisers, and ultimately to the viewing public. Like all other cartels, NCAA members have sought and achieved a price for their product which is, in most instances, artificially high. The NCAA cartel imposes production limits on its members, and maintains mechanisms for punishing cartel members who seek to stray from these production quotas. The cartel has established a uniform price for the products of each of the member producers, with no regard for the differing quality of these products or the consumer demand for these various products. Id., at 1300-1301. The District Court found that competition in the relevant market had been restrained in three ways: (1) NCAA fixed the price for particular telecasts; (2) its exclusive network contracts were tantamount to a group boycott of all other potential broadcasters and its threat of sanctions against its own members constituted a threatened boycott of potential competitors; and (3) its plan placed an artificial limit on the production of televised college football. Id., at 1293-1295. In the District Court the NCAA offered two principal justifications for its television policies: that they protected the gate attendance of its members and that they tended to preserve a competitive balance among the football programs of the various schools. The District Court rejected the first justification because the evidence did not support the claim that college football television adversely affected gate attendance. Id., at 1295-1296. With respect to the competitive balance argument, the District Court found that the evidence failed to show that the NCAA regulations on matters such as recruitment and the standards for preserving amateurism were not sufficient to maintain an appropriate balance. Id., at 1296. Decision of the Court of Appeals The Court of Appeals held that the NCAA television plan constituted illegal per se price fixing, 707 F. 2d, at 1152. [13] It rejected each of the three arguments advanced by NCAA to establish the procompetitive character of its plan. [14] First, the court rejected the argument that the television plan promoted live attendance, noting that since the plan involved a concomitant reduction in viewership the plan did not result in a net increase in output and hence was not procompetitive. Id., at 1153-1154. Second, the Court of Appeals rejected as illegitimate the NCAA's purpose of promoting athletically balanced competition. It held that such a consideration amounted to an argument that competition will destroy the market — a position inconsistent with the policy of the Sherman Act. Moreover, assuming arguendo that the justification was legitimate, the court agreed with the District Court's finding that any contribution the plan made to athletic balance could be achieved by less restrictive means. Id., at 1154. Third, the Court of Appeals refused to view the NCAA plan as competitively justified by the need to compete effectively with other types of television programming, since it entirely eliminated competition between producers of football and hence was illegal per se. Id., at 1155-1156. Finally, the Court of Appeals concluded that even if the television plan were not per se illegal, its anticompetitive limitation on price and output was not offset by any procompetitive justification sufficient to save the plan even when the totality of the circumstances was examined. Id., at 1157-1160. [15] The case was remanded to the District Court for an appropriate modification in its injunctive decree. Id., at 1162. [16]",The NCAA
+88,108715,1,1,"This case arises from the factual background of a chronic freight-car shortage on the Nation's railroads, which we described in United States v. Allegheny-Ludlum Steel Corp., supra . Judge Simpson, writing for the District Court in this case, noted that [f]or a number of years portions of the nation have been plagued with seasonal shortages of freight cars in which to ship goods. 322 F. Supp. 725, 726 (MD Fla. 1971). Judge Friendly, writing for a three-judge District Court in the Eastern District of New York in the related case of Long Island R. Co. v. United States, 318 F. Supp. 490, 491 (EDNY 1970), described the Commission's order as the latest chapter in a long history of freight-car shortages in certain regions and seasons and of attempts to ease them. Congressional concern for the problem was manifested in the enactment in 1966 of an amendment to § 1 (14) (a) of the Interstate Commerce Act, enlarging the Commission's authority to prescribe per diem charges for the use by one railroad of freight cars owned by another. Pub. L. 89-430, 80 Stat. 168. The Senate Committee on Commerce stated in its report accompanying this legislation: Car shortages, which once were confined to the Midwest during harvest seasons, have become increasingly more frequent, more severe, and nation-wide in scope as the national freight car supply has plummeted. S. Rep. No. 386, 89th Cong., 1st Sess., 1-2. The Commission in 1966 commenced an investigation, Ex parte No. 252, Incentive Per Diem Charges, to determine whether information presently available warranted the establishment of an incentive element increase, on an interim basis, to apply pending further study and investigation. 332 I. C. C. 11, 12 (1967). Statements of position were received from the Commission staff and a number of railroads. Hearings were conducted at which witnesses were examined. In October 1967, the Commission rendered a decision discontinuing the earlier proceeding, but announcing a program of further investigation into the general subject. In December 1967, the Commission initiated the rulemaking procedure giving rise to the order that appellees here challenge. It directed Class I and Class II line-haul railroads to compile and report detailed information with respect to freight-car demand and supply at numerous sample stations for selected days of the week during 12 four-week periods, beginning January 29, 1968. Some of the affected railroads voiced questions about the proposed study or requested modification in the study procedures outlined by the Commission in its notice of proposed rulemaking. In response to petitions setting forth these carriers' views, the Commission staff held an informal conference in April 1968, at which the objections and proposed modifications were discussed. Twenty railroads, including appellee Seaboard, were represented at this conference, at which the Commission's staff sought to answer questions about reporting methods to accommodate individual circumstances of particular railroads. The conference adjourned on a note that undoubtedly left the impression that hearings would be held at some future date. A detailed report of the conference was sent to all parties to the proceeding before the Commission. The results of the information thus collected were analyzed and presented to Congress by the Commission during a hearing before the Subcommittee on Surface Transportation of the Senate Committee on Commerce in May 1969. Members of the Subcommittee expressed dissatisfaction with the Commission's slow pace in exercising the authority that had been conferred upon it by the 1966 Amendments to the Interstate Commerce Act. Judge Simpson in his opinion for the District Court said: Members of the Senate Subcommittee on Surface Transportation expressed considerable dissatisfaction with the Commission's apparent inability to take effective steps toward eliminating the national shortage of freight cars. Comments were general that the Commission was conducting too many hearings and taking too little action. Senators pressed for more action and less talk, but Commission counsel expressed doubt respecting the Commission's statutory power to act without additional hearings. 322 F. Supp., at 727. Judge Friendly, describing the same event in Long Island R. Co. v. United States, supra , said: To say that the presentation was not received with enthusiasm would be a considerable under-statement. Senators voiced displeasure at the Commission's long delay at taking action under the 1966 amendment, engaged in some merriment over what was regarded as an unintelligible discussion of methodology . . . and expressed doubt about the need for a hearing . . . . But the Commission's general counsel insisted that a hearing was needed . . . and the Chairman of the Commission agreed . . . . 318 F. Supp., at 494. The Commission, now apparently imbued with a new sense of mission, issued in December 1969 an interim report announcing its tentative decision to adopt incentive per diem charges on standard boxcars based on the information compiled by the railroads. The substantive decision reached by the Commission was that so-called incentive per diem charges should be paid by any railroad using on its lines a standard boxcar owned by another railroad. Before the enactment of the 1966 amendment to the Interstate Commerce Act, it was generally thought that the Commission's authority to fix per diem payments for freight car use was limited to setting an amount that reflected fair return on investment for the owning railroad, without any regard being had for the desirability of prompt return to the owning line or for the encouragement of additional purchases of freight cars by the railroads as a method of investing capital. The Commission concluded, however, that in view of the 1966 amendment it could impose additional incentive per diem charges to spur prompt return of existing cars and to make acquisition of new cars financially attractive to the railroads. It did so by means of a proposed schedule that established such charges on an across-the-board basis for all common carriers by railroads subject to the Interstate Commerce Act. Embodied in the report was a proposed rule adopting the Commission's tentative conclusions and a notice to the railroads to file statements of position within 60 days, couched in the following language: That verified statements of facts, briefs, and statements of position respecting the tentative conclusions reached in the said interim report, the rules and regulations proposed in the appendix to this order, and any other pertinent matter, are hereby invited to be submitted pursuant to the filing schedule set forth below by an interested person whether or not such person is already a party to this proceeding. ..... That any party requesting oral hearing shall set forth with specificity the need therefor and the evidence to be adduced. 337 I. C. C. 183, 213. Both appellee railroads filed statements objecting to the Commission's proposal and requesting an oral hearing, as did numerous other railroads. In April 1970, the Commission, without having held further hearings, issued a supplemental report making some modifications in the tentative conclusions earlier reached, but overruling in toto the requests of appellees. The District Court held that in so doing the Commission violated § 556 (d) of the Administrative Procedure Act, and it was on this basis that it set aside the order of the Commission.",background of chronic freight car shortages
+89,108715,1,2,"In United States v. Allegheny-Ludlum Steel Corp., supra , we held that the language of § 1 (14) (a) of the Interstate Commerce Act authorizing the Commission to act after hearing was not the equivalent of a requirement that a rule be made on the record after opportunity for an agency hearing as the latter term is used in § 553 (c) of the Administrative Procedure Act. Since the 1966 amendment to § 1 (14) (a), under which the Commission was here proceeding, does not by its terms add to the hearing requirement contained in the earlier language, the same result should obtain here unless that amendment contains language that is tantamount to such a requirement. Appellees contend that such language is found in the provisions of that Act requiring that: [T]he Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed . . . . While this language is undoubtedly a mandate to the Commission to consider the factors there set forth in reaching any conclusion as to imposition of per diem incentive charges, it adds to the hearing requirements of the section neither expressly nor by implication. We know of no reason to think that an administrative agency in reaching a decision cannot accord consideration to factors such as those set forth in the 1966 amendment by means other than a trial-type hearing or the presentation of oral argument by the affected parties. Congress by that amendment specified necessary components of the ultimate decision, but it did not specify the method by which the Commission should acquire information about those components. [5] Both of the district courts that reviewed this order of the Commission concluded that its proceedings were governed by the stricter requirements of §§ 556 and 557 of the Administrative Procedure Act, rather than by the provisions of § 553 alone. [6] The conclusion of the District Court for the Middle District of Florida, which we here review, was based on the assumption that the language in § 1 (14) (a) of the Interstate Commerce Act requiring rulemaking under that section to be done after hearing was the equivalent of a statutory requirement that the rule be made on the record after opportunity for an agency hearing. Such an assumption is inconsistent with our decision in Allegheny-Ludlum, supra . The District Court for the Eastern District of New York reached the same conclusion by a somewhat different line of reasoning. That court felt that because § 1 (14) (a) of the Interstate Commerce Act had required a hearing, and because that section was originally enacted in 1917, Congress was probably thinking in terms of a hearing such as that described in the opinion of this Court in the roughly contemporaneous case of ICC v. Louisville & Nashville R. Co., 227 U. S. 88, 93 (1913). The ingredients of the hearing were there said to be that [a]ll parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal. Combining this view of congressional understanding of the term hearing with comments by the Chairman of the Commission at the time of the adoption of the 1966 legislation regarding the necessity for hearings, that court concluded that Congress had, in effect, required that these proceedings be on the record after opportunity for an agency hearing within the meaning of § 553 (c) of the Administrative Procedure Act. Insofar as this conclusion is grounded on the belief that the language after hearing of § 1 (14) (a), without more, would trigger the applicability of §§ 556 and 557, it, too, is contrary to our decision in Allegheny-Ludlum, supra . The District Court observed that it was rather hard to believe that the last sentence of § 553 (c) was directed only to the few legislative sports where the words `on the record' or their equivalent had found their way into the statute book. 318 F. Supp., at 496. This is, however, the language which Congress used, and since there are statutes on the books that do use these very words, see, e. g., the Fulbright Amendment to the Walsh-Healey Act, 41 U. S. C. § 43a, and 21 U. S. C. § 371 (e) (3), the regulations provision of the Food and Drug Act, adherence to that language cannot be said to render the provision nugatory or ineffectual. We recognized in Allegheny-Ludlum that the actual words on the record and after . . . hearing used in § 553 were not words of art, and that other statutory language having the same meaning could trigger the provisions of §§ 556 and 557 in rulemaking proceedings. But we adhere to our conclusion, expressed in that case, that the phrase after hearing in § 1 (14) (a) of the Interstate Commerce Act does not have such an effect.",applicability of administrative procedure act
+90,107252,1,2,"It is most fitting to begin an inquiry into the constitutional precedents by surveying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs and so serve to measure the actual as opposed to the professed distance it travels; and because examination of them helps reveal how the Court has coasted into its present position. The earliest confession cases in this Court emerged from federal prosecutions and were settled on a nonconstitutional basis, the Court adopting the common-law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. Utah, 110 U. S. 574; Pierce v. United States, 160 U. S. 355. While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions. [2] The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness in fact, Wan v. United States, 266 U. S. 1, 14 (quoted, ante, p. 462), and then by and large left federal judges to apply the same standards the Court began to derive in a string of state court cases. This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. Mississippi, 297 U. S. 278, and must now embrace somewhat more than 30 full opinions of the Court. [3] While the voluntariness rubric was repeated in many instances, e. g., Lyons v. Oklahoma, 322 U. S. 596, the Court never pinned it down to a single meaning but on the contrary infused it with a number of different values. To travel quickly over the main themes, there was an initial emphasis on reliability, e. g., Ward v. Texas, 316 U. S. 547, supplemented by concern over the legality and fairness of the police practices, e. g., Ashcraft v. Tennessee, 322 U. S. 143, in an accusatorial system of law enforcement, Watts v. Indiana, 338 U. S. 49, 54, and eventually by close attention to the individual's state of mind and capacity for effective choice, e. g., Gallegos v. Colorado, 370 U. S. 49. The outcome was a continuing re-evaluation on the facts of each case of how much pressure on the suspect was permissible. [4] Among the criteria often taken into account were threats or imminent danger, e. g., Payne v. Arkansas, 356 U. S. 560, physical deprivations such as lack of sleep or food, e. g., Reck v. Pate, 367 U. S. 433, repeated or extended interrogation, e. g., Chambers v. Florida, 309 U. S. 227, limits on access to counsel or friends, Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, 357 U. S. 504, length and illegality of detention under state law, e. g., Haynes v. Washington, 373 U. S. 503, and individual weakness or incapacities, Lynumn v. Illinois, 372 U. S. 528. Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. Illinois, 378 U. S. 478, it is worth capsulizing the then-recent case of Haynes v. Washington, 373 U. S. 503. There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and despite requests had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision held the confession inadmissible. There are several relevant lessons to be drawn from this constitutional history. The first is that with over 25 years of precedent the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is judicial in its treatment of one case at a time, see Culombe v. Connecticut, 367 U. S. 568, 635 (concurring opinion of THE CHIEF JUSTICE), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least. The second point is that in practice and from time to time in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty, [5] and the lower courts may often have been yet more tolerant. Of course the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States, 223 U. S. 303; Wilson v. United States, 162 U. S. 613. As recently as Haynes v. Washington, 373 U. S. 503, 515, the Court openly acknowledged that questioning of witnesses and suspects is undoubtedly an essential tool in effective law enforcement. Accord, Crooker v. California, 357 U. S. 433, 441. Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect in the unfettered exercise of his own will, Malloy v. Hogan, 378 U. S. 1, 8, and that a prisoner is not `to be made the deluded instrument of his own conviction,'  Culombe v. Connecticut, 367 U. S. 568, 581 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word voluntary may be deemed somewhat misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e. g., supra, n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but in any event one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court. I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a trompe l'oeil. The Court's opinion in my view reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation. The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents . . . . 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. 1961). Practice under the two doctrines has also differed in a number of important respects. [6] Even those who would readily enlarge the privilege must concede some linguistic difficulties since the Fifth Amendment in terms proscribes only compelling any person in any criminal case to be a witness against himself. Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965). Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion. [7] Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial rather than inquisitorial values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this indeed is why at present the kinship of the two rules [governing confessions and self-incrimination] is too apparent for denial. McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions. Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test. [8] It then emerges from a discussion of Escobedo that the Fifth Amendment requires for an admissible confession that it be given by one distinctly aware of his right not to speak and shielded from the compelling atmosphere of interrogation. See ante, pp. 465-466. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I do not believe these premises are sustained by precedents under the Fifth Amendment. [9] The more important premise is that pressure on the suspect must be eliminated though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, Maryland v. Soper, 270 U. S. 9; in refusal of a military commission, Orloff v. Willoughby, 345 U. S. 83; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz, 176 F. 2d 210; and in numerous other adverse consequences. See 8 Wigmore, Evidence § 2272, at 441-444, n. 18 (McNaughton rev. 1961); Maguire, Evidence of Guilt § 2.062 (1959). This is not to say that short of jail or torture any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e. g., Griffin v. California, 380 U. S. 609. However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits. The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e. g., United States v. Scully, 225 F. 2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence § 2269 (McNaughton rev. 1961). Cf. Henry v. Mississippi, 379 U. S. 443, 451-452 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might of course be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning but that is a different matter entirely. See infra, pp. 516-517. A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly relied on by the Court but whose judicial precedents turn out to be linchpins of the confession rules announced today. To support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst, 304 U. S. 458, ante, p. 475; appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright, 372 U. S. 335, and Douglas v. California, 372 U. S. 353, ante, p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran, 369 U. S. 506, ante, p. 475, as is the right to an express offer of counsel, ante, p. 471. All these cases imparting glosses to the Sixth Amendment concerned counsel at trial or on appeal. While the Court finds no pertinent difference between judicial proceedings and police interrogation, I believe the differences are so vast as to disqualify wholly the Sixth Amendment precedents as suitable analogies in the present cases. [10] The only attempt in this Court to carry the right to counsel into the station house occurred in Escobedo, the Court repeating several times that that stage was no less critical than trial itself. See 378 U. S., 485-488. This is hardly persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of narcotics by an undercover agent from a prospective defendant may all be equally critical yet provision of counsel and advice on that score have never been thought compelled by the Constitution in such cases. The sound reason why this right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor but not to himself. This danger shrinks markedly in the police station where indeed the lawyer in fulfilling his professional responsibilities of necessity may become an obstacle to truthfinding. See infra, n. 12. The Court's summary citation of the Sixth Amendment cases here seems to me best described as the domino method of constitutional adjudication . . . wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation. Friendly, supra, n. 10, at 950.",constitutional premises.
+91,107252,1,3,"Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante, p. 479. Rather, precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land. Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can in themselves exert a tug on the suspect to confess, and in this light [t]o speak of any confessions of crime made after arrest as being `voluntary' or `uncoerced' is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser. Ashcraft v. Tennessee, 322 U. S. 143, 161 (Jackson, J., dissenting). Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions. [11] The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all. [12] In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante, pp. 448-456. What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. [13] There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See, supra, n. 12. How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, [14] and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation. While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law. This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly debatable at best and therefore not to be read into the Constitution. However, it may make the analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona serves best, being neither the hardest nor easiest of the four under the Court's standards. [15] On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had an emotional illness of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was alert and oriented as to time, place, and person, intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a. m. Though at first denying his guilt, within a short time Miranda gave a detailed oral confession and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less without any force, threats or promises and—I will assume this though the record is uncertain, ante, 491-492 and nn. 66-67—without any effective warnings at all. Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel astonished that the Constitution can be read to produce this result. These confessions were obtained during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun conception of fairness which I seriously doubt is shared by many thinking citizens in this country. [16] The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the state and federal decisions in point have sought quite narrow interpretations. [17] Of the courts that have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision at all has gone as far as this Court goes today. [18] It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst, 304 U. S. 458, Mapp v. Ohio, 367 U. S. 643, and Gideon v. Wainwright, 372 U. S. 335. In Johnson, which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had in fact been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 36-42 (1955). In Mapp, which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U. S., at 651. In Gideon, which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U. S., at 345. By contrast, in this case new restrictions on police questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own. The Court in closing its general discussion invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief resume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy, [19] but in any event the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative waiver before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante, pp. 484-486. Apparently American military practice, briefly mentioned by the Court, has these same limits and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra, n. 2, at 1084-1089. The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence but not counsel has long been mandated by the Judges' Rules, which also place other somewhat imprecise limits on police cross-examination of suspects. However, in the court's discretion confessions can be and apparently quite frequently are admitted in evidence despite disregard of the Judges' Rules, so long as they are found voluntary under the common-law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify. [20] India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra, n. 2, at 1106-1110; Reg. v. Ramasamy [1965] A. C. 1 (P. C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and in many other respects Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country. [21] The Court ends its survey by imputing added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive. In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive re-examination of criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator of the Harvard Law School; and the President's Commission on Law Enforcement and Administration of Justice, under the leadership of the Attorney General of the United States. [22] Studies are also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center, and by others equipped to do practical research. [23] There are also signs that legislatures in some of the States may be preparing to re-examine the problem before us. [24] It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past. [25] But the legislative reforms when they come would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs.",policy considerations.
+92,107252,1,2,"(a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. . . . (b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material. ..... (d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him. The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958). Despite suggestions of some laxity in enforcement of the Rules and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e. g., [1964] Crim. L. Rev., at 182; and articles collected in [1960] Crim. L. Rev., at 298-356. [58] The introduction to the Judges' Rules states in part: These Rules do not affect the principles ..... (c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so . . . . [1964] Crim. L. Rev., at 166-167. [59] As stated by the Lord Justice General in Chalmers v. H. M. Advocate, [1954] Sess. Cas. 66, 78 (J. C.): The theory of our law is that at the stage of initial investigation the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e. g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice. [60] No confession made to a police officer shall be proved as against a person accused of any offence. Indian Evidence Act § 25. No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Indian Evidence Act § 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: [I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Sarwan Singh v. State of Punjab, 44 All India Rep. 1957, Sup. Ct. 637, 644. [61] I Legislative Enactments of Ceylon 211 (1958). [62] 10 U. S. C. § 831 (b) (1964 ed.). [63] United States v. Rose, 24 CMR 251 (1957); United States v. Gunnels, 23 CMR 354 (1957). [64] Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that No person accused of any offence shall be compelled to be a witness against himself. Constitution of India, Article 20 (3). See Tope, The Constitution of India 63-67 (1960). [65] Brief for United States in No. 761, Westover v. United States , pp. 44-47; Brief for the State of New York as amicus curiae, pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae, pp. 23-26. [66] Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that during the interrogation he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything. [67] One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally. [68] Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins, Civ. 9901 (D. C. W. D. N. Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33. [69] The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e. g., United States ex rel. Angelet v. Fay, 333 F. 2d 12, 16 (C. A. 2d Cir. 1964), aff'd, 381 U. S. 654 (1965). Cf. Ziffrin, Inc. v. United States, 318 U. S. 73, 78 (1943). [70] Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno, 378 U. S. 368 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33, 36 Cal. Rptr. 201 (1964). [71] After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that in these circumstances the decision below constituted a final judgment under 28 U. S. C. § 1257 (3) (1964 ed.), we denied the motion. 383 U. S. 903. [1] E. g., Inbau & Reid, Criminal Interrogation and Confessions (1962); O'Hara, Fundamentals of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940). [2] As developed by my Brother HARLAN, post, pp. 506-514, such cases, with the exception of the long-discredited decision in Bram v. United States, 168 U. S. 532 (1897), were adequately treated in terms of due process. [3] The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As my Brother HARLAN points out, post, pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's letter, ante, pp. 484-486, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as a right to counsel; nothing is said about a right to have counsel present at the custodial interrogation. (See also the examples cited by the Solicitor General, Westover v. United States, 342 F. 2d 684, 685 (1965) (right to consult counsel); Jackson v. United States, 337 F. 2d 136, 138 (1964) (accused entitled to an attorney).) Indeed, the practice is that whenever the suspect decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point . . . . When counsel appears in person, he is permitted to confer with his client in private. This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states: [T]hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge. So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself and that he may have counsel appointed only when brought before the judge or at trial—but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court. [4] In my view there is no significant support in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point see the dissenting opinion of my Brother WHITE, post, pp. 526-531. [1] My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement. [2] The case was Bram v. United States, 168 U. S. 532 (quoted, ante, p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded that no assertions could be more unfounded. 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed. 1940). The Court in United States v. Carignan, 342 U. S. 36, 41, declined to choose between Bram and Wigmore, and Stein v. New York, 346 U. S. 156, 191, n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell, 256 U. S. 465, 475; see Shotwell Mfg. Co. v. United States, 371 U. S. 341, 347. On Bram and the federal confession cases generally, see Developments in the Law—Confessions, 79 Harv. L. Rev. 935, 959-961 (1966). [3] Comment, 31 U. Chi. L. Rev. 313 & n. 1 (1964), states that by the 1963 Term 33 state coerced-confession cases had been decided by this Court, apart from per curiams. Spano v. New York, 360 U. S. 315, 321, n. 2, collects 28 cases. [4] Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col. L. Rev. 62, 73 (1966): In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice. See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St. L. J. 449, 452-458 (1964); Developments, supra, n. 2, at 964-984. [5] See the cases synopsized in Herman, supra, n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California, 343 U. S. 181, in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible. [6] Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev. 1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise; and where the privilege has been nullified—as by the English Bankruptcy Act—the confession rule may still operate. [7] Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03, at 15-16 (1959). [8] This, of course, is implicit in the Court's introductory announcement that [o]ur decision in Malloy v. Hogan, 378 U. S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates an examination of the scope of the privilege in state cases as well. Ante, p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has in recent years been the same standard as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U. S., at 7. [9] I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment and indeed its citation in this regard seems surprising in view of Escobedo 's primary reliance on the Sixth Amendment. [10] Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police-interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 943-948 (1965). [11] See supra, n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto, 348 F. 2d 823, 832 (concurring opinion); Bator & Vorenberg, supra, n. 4, at 72-73. [12] The Court's vision of a lawyer mitigat[ing] the dangers of untrustworthiness ( ante, p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watts v. Indiana, 338 U. S. 49, 59 (separate opinion of Jackson, J.): [A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances. See Enker & Elsen, Counsel for the Suspect, 49 Minn. L. Rev. 47, 66-68 (1964). [13] This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante, pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain, however the balance is resolved. [14] See, e. g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U. S. 568, 578-579 (Frankfurter, J., announcing the Court's judgment and an opinion). [15] In Westover, a seasoned criminal was practically given the Court's full complement of warnings and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera, the facts are complicated and the record somewhat incomplete. [16] [J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. Snyder v. Massachusetts, 291 U. S. 97, 122 (Cardozo, J.). [17] A narrow reading is given in: United States v. Robinson, 354 F. 2d 109 (C. A. 2d Cir.); Davis v. North Carolina, 339 F. 2d 770 (C. A. 4th Cir.); Edwards v. Holman, 342 F. 2d 679 (C. A. 5th Cir.); United States ex rel. Townsend v. Ogilvie, 334 F. 2d 837 (C. A. 7th Cir.); People v. Hartgraves, 31 Ill. 2d 375, 202 N. E. 2d 33; State v. Fox, ___ Iowa ___, 131 N. W. 2d 684; Rowe v. Commonwealth, 394 S. W. 2d 751 (Ky.); Parker v. Warden, 236 Md. 236, 203 A. 2d 418; State v. Howard, 383 S. W. 2d 701 (Mo.); Bean v. State, ___ Nev. ___, 398 P. 2d 251; State v. Hodgson, 44 N. J. 151, 207 A. 2d 542; People v. Gunner, 15 N. Y. 2d 226, 205 N. E. 2d 852; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A. 2d 288; Browne v. State, 24 Wis. 2d 491, 131 N. W. 2d 169. An ample reading is given in: United States ex rel. Russo v. New Jersey, 351 F. 2d 429 (C. A. 3d Cir.); Wright v. Dickson, 336 F. 2d 878 (C. A. 9th Cir.); People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361; State v. Dufour, ___ R. I. ___, 206 A. 2d 82; State v. Neely, 239 Ore. 487, 395 P. 2d 557, modified, 398 P. 2d 482. The cases in both categories are those readily available; there are certainly many others. [18] For instance, compare the requirements of the catalytic case of People v. Dorado, 62 Cal. 2d 338, 398 P. 2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 670. [19] The Court's obiter dictum notwithstanding, ante, p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual. [20] For citations and discussion covering each of these points, see Developments, supra, n. 2, at 1091-1097, and Enker & Elsen, supra, n. 12, at 80 & n. 94. [21] On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U. Pa. L. Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id., at 167-169; guilt based on majority jury verdicts, id., at 185; and pre-trial discovery of evidence on both sides, id., at 175. [22] Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code. [23] See Brief for the United States in Westover, p. 45. The N. Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confessions in New York. [24] The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N. Y. Times, May 24, 1966, p. 35 (late city ed.). [25] The Court waited 12 years after Wolf v. Colorado, 338 U. S. 25, declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded in Mapp v. Ohio, 367 U. S. 643, that adequate state remedies had not been provided to protect this interest so the exclusionary rule was necessary. [1] Of course the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante, at 479, n. 48, and it acknowledges that in the instant cases we might not find the defendants' statements to have been involuntary in traditional terms, ante, at 457. [2] In fact, the type of sustained interrogation described by the Court appears to be the exception rather than the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law—From Arrest to Release or Charge, 50 Calif. L. Rev. 11, 41-45 (1962). Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items of evidence, as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary § 5.01, at 170, n. 4 (Tent. Draft No. 1, 1966). [3] By contrast, the Court indicates that in applying this new rule it will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Ante, at 468. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden, 355 F. 2d 453 (C. A. 7th Cir. 1965), petition for cert. pending No. 1146, O. T. 1965 (Secret Service agent); People v. Du Bont, 235 Cal. App. 2d 844, 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O. T. 1965 (former police officer). [4] Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on Careers in Crime, which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years the group had accumulated 434,000 charges. FBI, Uniform Crime Reports—1964, 27-28. In 1963 and 1964 between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia between 28% and 35% of those sentenced had prior prison records and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963). A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined, 56 J. Crim. L., C. & P. S. 59 (1965) (within five years of release 62.33% of sample had committed offenses placing them in recidivist category). [5] Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra, note 4, 3-6. In the District Court for the District of Columbia a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id., at 58-59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial. Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9% of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports—1964, 20-22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included.",All written statements made after caution shall be taken in the following manner:
+93,86254,1,1,"19 1. The form of the collector's bonds is prescribed by law, and expressly assumes the past as well as prospective accountability of the collector. Act 1799, 3 U. S. Laws, 237. 20 2. The law obliged one collector, once in every three months, and oftener if required, to transmit his accounts, for settlement, to the officers of the Treasury. Act 1799, sec. 21, 3 U. S. Laws, 157; Act 1820, May 15, sec. 2, 6 U. S. Laws, 521. 21 The law also bound him, as a disbursing officer, to the same duty. Act 1823, Jan. 31, sec. 2, 7 U. S. Laws, 113. 22 3. The law required the officers of the Treasury Department to examine the accounts submitted, and to state and certify the balances thereof. Act 1817, March 3, sec. 4, 8, and 9, 6 U. S. Laws, 199; and also the references under the preceding proposition. 23 4. The accounts rendered quarterly to the Treasury, there examined, corrected, and returned to the collector, are binding upon both parties as to all the items embraced in the accounts and included in the adjustment at the Treasury. 24 II. The balances in the quarterly accounts are to be taken as cash funds, or cash on hand; if so, every consideration, equitable as well as legal, requires them to be treated as the primary fund for subsequent payments, and these payments to be applied accordingly. 25 III. If the quarterly balances are presumed to be arrears, or defaulting balances, nevertheless the mutual rendering of accounts between the collector and the Treasury Department, to each other, was an appropriation of the payments to the charges, in the order of time in which they stand in those accounts. 26 IV. The sureties in posterior bonds of collectors of the customs have no equity to be taken into view, even in respect to an appropriation of payments, by mere implication of law. 27 V. If the sureties on such posterior bonds should be deemed to have an equity against an application of payments, made after the date of their bonds, and during the period covered by it, to an antecedent balance, such application might have the effect to discharge such sureties; the United States cannot, for such a cause, without the consent of the anterior sureties, recall such application, made by accounts rendered, adjusted, and settled, according to law and long usage, and binding as between the United States and the collector. 28 VI. The re-statement of the account from 1830 to 1834, made at the Treasury in 1839, after the rendering and the settling, at the time of the quarterly accounts, was without authority of law, if it was to affect any previous appropriation of payments; if it was not, it was immaterial and irrelevant. It was in every view without authority of law. 29 Legar e , for plaintiffs. 30
+31
+32 1. The act of 3d March, 1797, 1 Story, 464, declares that a transcript of the account shall be evidence. It is objected that this is not such, because the account is re-stated. But if an account has been once stated, why not state it again? Accounting officers are not judges. Need not re-state, unless some error. Time does not discharge sureties. United States v. Kirkpatrick, 9 Wheat. Government is not estopped if new evidence be discovered. 1 Domat, Public Law, title 6. An error may be corrected in a patent. Grant v. Raymond, 6 Peters, 241. Where a contract requires to be severed, court will sever it, as with rent. Co. Litt. 742, 215, A; Litt. sec. 244; 1 Roll's Abr. Apportionment, D. So in partnership cases. 3 Bro. Ch. Cases, 4, 44. 33 As to the second point. 34 If the opposite doctrine be correct, neither set of securities is responsible, because there is no default in the second term, and the first is paid. 1 Mer. 529, 572. If the debtor does not apply the payment himself, the court will apply it where the security is most precarious. 6 Cranch, 27. Civil law stated in 1 Poth. on Obligations, 338, ed. of 1826. The creditor may make the application. 4 Cranch, 317. A leading case is in 7 Cranch, 572, but Justice Story dissents from it in 5 Mason's Rep. 82. Securities only liable for what was actually received during the term. 12 Wheat. 509. The responsibility must be severed. 1 Gilpin, 125. Lord , for defendants: 35 Custom has been to apply payments as to time, unless something peculiar in the case. Bond of second sureties retrospective; law required it to be so. Sureties must have looked to this, backward as well as forward. Quarterly settlements are required by law. Act of 1799, c. 128, s. 21; May, 1820, c. 625, s. 2; Jan. 1823, c. 138. 36 Collector is obliged to retain money for various purposes; for example, to pay debentures, &c. The quarterly accounts are settlements, and bind the parties. Act of March 3, 1817, makes it the duty of the government to settle them. Onus is on the government. 1 McLean's Rep. 493; 9 Cranch, 230, 237. Presumption is that the accounting officers knew what the collector ought to keep on hand, and allowed him to retain it, aided by his reappointment. Suppose that it was a debt from Swartwout: has it been paid? Rule is, that oldest debt is paid first, unless there be some equity. First, the debtor directs; if he does not, the creditor does; if neither does, the court makes the application. 6 Cranch, 9; 9 Wheat. 720; 4 Mason, 333. In December, 1834, this application was made. Oldest debt most likely to be lost, and policy of government is to throw balances on last securities. Debtor may make the application. 7 Cranch, 575; 9 Wheat. 720; 1 Mer. 604; 3 Sumn. 109; Gilpin, 125; 1 McLean, 493. The collector owed no debt until the government called for its money. Even if money had been borrowed from second surety and paid to government, the payment would have been good. The transcript is not a paper according to law, because the law meant a copy of what was done, not to make out something new. 37 Wright , on same side. 38 Debtor has a right to make the application. 2 Vern. 606. If he does not, the creditor may, but he must say before any controversy. 5 Taunt. 596. Either party having declared their intention is bound by it, and cannot change it without the consent of the other. 4 Cranch, 315. If neither party make the application, courts will consult the interests of creditor as well as debtor, because they will apply it to a debt not bearing interest or not secured, rather than to one bearing interest or secured. In a running account the oldest credits are applied to the oldest debts, and so on, in order of time. 9 Wheat. 720; 2 Strange, 1194; 9 Mod. 427; 4 Mason, 33; 2 Marsh. 319; 1 Mer. 572-611; 2 Barn. and Ald. 39; 3 Bingh. 71; 1 Wash. 128; 2 Brod. and Bingh. 7; 1 Stark. 122; 12 Wheat. 505; 1 Mason, 323; Stiles, 239; Ambl. 55; 5 Mason, 82; 3 East, 484; 1 Bingh. 452; 2 Barn. and Cres. 265; 2 Maule and Selw. 18; 9 Cranch, 212; 1 Gilpin, 125, 106; Theobald, 221; 1 Law Library, 131. The power of the creditor and debtor over payments is the same where there are sureties as where there are none. 4 Mason, 333; 3 Bingh. 71; 9 Cranch, 212. The case in 1 Gilpin, 125, is not justified by either the case in Cranch or the case in Mason. in 1 McLean, 493, the officer was not a disbursing officer, and the bond was not retrospective. Case in 5 Peters, 373, not applicable. 39 Payments in this case were in fact and in law applied to extinguishment of former balances. Law required accounts to be settled quarterly. Every quarter Swartwout made the application, and it must bind him. So the government officers, also, by bringing down fresh balances. 3 E ast, 484; 9 Peters, 12; 1 Mason, 323; 14 East, 239; 8 Wend. 403. 40 Suppose a new person had been appointed who had debited himself with the balance, and the government had assented to it; would not this have discharged principal and surety? and how is it changed if the same man be reappointed? 41 Legar e , for plaintiffs, in reply. 42 The question is not now, whether a balance can be shown, but merely whether the evidence is legal; a cash balance is prima facie evidence of a debt. Every term of office is a separate responsibility, as to principal and sureties. No matter how the accounts are kept; the law of 1820 cuts through and severs them. Act of 1840, commonly called the Sub-treasury Act, declares the appropriation of public money a felony, and such an appropriation to pay an old debt is the basis of this defence. In 9 Wheat. the bond was given during an executive appointment. The sureties must see that their principals settle every four years. Swartwout was a bailiff or agent, not a debtor. 15 Peters, 432. See 1 Jac. anc Walk. 247. An agent who keeps the money in bank is presumed to be using it for his own benefit. 11 Peters, 61. A debtor paying a debt out of his own money has a right to apply it, but not paying it out of another man's money. He held the money of the government as a mere bailiff, and had no right to do any thing with it but hand it over. 43",Preliminary references:
+94,86254,2,2,"32 1. The act of 3d March, 1797, 1 Story, 464, declares that a transcript of the account shall be evidence. It is objected that this is not such, because the account is re-stated. But if an account has been once stated, why not state it again? Accounting officers are not judges. Need not re-state, unless some error. Time does not discharge sureties. United States v. Kirkpatrick, 9 Wheat. Government is not estopped if new evidence be discovered. 1 Domat, Public Law, title 6. An error may be corrected in a patent. Grant v. Raymond, 6 Peters, 241. Where a contract requires to be severed, court will sever it, as with rent. Co. Litt. 742, 215, A; Litt. sec. 244; 1 Roll's Abr. Apportionment, D. So in partnership cases. 3 Bro. Ch. Cases, 4, 44. 33 As to the second point. 34 If the opposite doctrine be correct, neither set of securities is responsible, because there is no default in the second term, and the first is paid. 1 Mer. 529, 572. If the debtor does not apply the payment himself, the court will apply it where the security is most precarious. 6 Cranch, 27. Civil law stated in 1 Poth. on Obligations, 338, ed. of 1826. The creditor may make the application. 4 Cranch, 317. A leading case is in 7 Cranch, 572, but Justice Story dissents from it in 5 Mason's Rep. 82. Securities only liable for what was actually received during the term. 12 Wheat. 509. The responsibility must be severed. 1 Gilpin, 125. Lord , for defendants: 35 Custom has been to apply payments as to time, unless something peculiar in the case. Bond of second sureties retrospective; law required it to be so. Sureties must have looked to this, backward as well as forward. Quarterly settlements are required by law. Act of 1799, c. 128, s. 21; May, 1820, c. 625, s. 2; Jan. 1823, c. 138. 36 Collector is obliged to retain money for various purposes; for example, to pay debentures, &c. The quarterly accounts are settlements, and bind the parties. Act of March 3, 1817, makes it the duty of the government to settle them. Onus is on the government. 1 McLean's Rep. 493; 9 Cranch, 230, 237. Presumption is that the accounting officers knew what the collector ought to keep on hand, and allowed him to retain it, aided by his reappointment. Suppose that it was a debt from Swartwout: has it been paid? Rule is, that oldest debt is paid first, unless there be some equity. First, the debtor directs; if he does not, the creditor does; if neither does, the court makes the application. 6 Cranch, 9; 9 Wheat. 720; 4 Mason, 333. In December, 1834, this application was made. Oldest debt most likely to be lost, and policy of government is to throw balances on last securities. Debtor may make the application. 7 Cranch, 575; 9 Wheat. 720; 1 Mer. 604; 3 Sumn. 109; Gilpin, 125; 1 McLean, 493. The collector owed no debt until the government called for its money. Even if money had been borrowed from second surety and paid to government, the payment would have been good. The transcript is not a paper according to law, because the law meant a copy of what was done, not to make out something new. 37 Wright , on same side. 38 Debtor has a right to make the application. 2 Vern. 606. If he does not, the creditor may, but he must say before any controversy. 5 Taunt. 596. Either party having declared their intention is bound by it, and cannot change it without the consent of the other. 4 Cranch, 315. If neither party make the application, courts will consult the interests of creditor as well as debtor, because they will apply it to a debt not bearing interest or not secured, rather than to one bearing interest or secured. In a running account the oldest credits are applied to the oldest debts, and so on, in order of time. 9 Wheat. 720; 2 Strange, 1194; 9 Mod. 427; 4 Mason, 33; 2 Marsh. 319; 1 Mer. 572-611; 2 Barn. and Ald. 39; 3 Bingh. 71; 1 Wash. 128; 2 Brod. and Bingh. 7; 1 Stark. 122; 12 Wheat. 505; 1 Mason, 323; Stiles, 239; Ambl. 55; 5 Mason, 82; 3 East, 484; 1 Bingh. 452; 2 Barn. and Cres. 265; 2 Maule and Selw. 18; 9 Cranch, 212; 1 Gilpin, 125, 106; Theobald, 221; 1 Law Library, 131. The power of the creditor and debtor over payments is the same where there are sureties as where there are none. 4 Mason, 333; 3 Bingh. 71; 9 Cranch, 212. The case in 1 Gilpin, 125, is not justified by either the case in Cranch or the case in Mason. in 1 McLean, 493, the officer was not a disbursing officer, and the bond was not retrospective. Case in 5 Peters, 373, not applicable. 39 Payments in this case were in fact and in law applied to extinguishment of former balances. Law required accounts to be settled quarterly. Every quarter Swartwout made the application, and it must bind him. So the government officers, also, by bringing down fresh balances. 3 E ast, 484; 9 Peters, 12; 1 Mason, 323; 14 East, 239; 8 Wend. 403. 40 Suppose a new person had been appointed who had debited himself with the balance, and the government had assented to it; would not this have discharged principal and surety? and how is it changed if the same man be reappointed? 41 Legar e , for plaintiffs, in reply. 42 The question is not now, whether a balance can be shown, but merely whether the evidence is legal; a cash balance is prima facie evidence of a debt. Every term of office is a separate responsibility, as to principal and sureties. No matter how the accounts are kept; the law of 1820 cuts through and severs them. Act of 1840, commonly called the Sub-treasury Act, declares the appropriation of public money a felony, and such an appropriation to pay an old debt is the basis of this defence. In 9 Wheat. the bond was given during an executive appointment. The sureties must see that their principals settle every four years. Swartwout was a bailiff or agent, not a debtor. 15 Peters, 432. See 1 Jac. anc Walk. 247. An agent who keeps the money in bank is presumed to be using it for his own benefit. 11 Peters, 61. A debtor paying a debt out of his own money has a right to apply it, but not paying it out of another man's money. He held the money of the government as a mere bailiff, and had no right to do any thing with it but hand it over. 43",As to the application of payments.
+95,106856,1,3,"The Colorado plan creates a General Assembly composed of a Senate of 39 members and a House of 65 members. The State is divided into 65 equal population representative districts, with one representative to be elected from each district, and 39 senatorial districts, 14 of which include more than one county. In the Colorado House, the majority unquestionably rules supreme, with the population factor untempered by other considerations. In the Senate rural minorities do not have effective control, and therefore do not have even a veto power over the will of the urban majorities. It is true that, as a matter of theoretical arithmetic, a minority of 36% of the voters could elect a majority of the Senate, but this percentage has no real meaning in terms of the legislative process. [14] Under the Colorado plan, no possible combination of Colorado senators from rural districts, even assuming arguendo that they would vote as a bloc, could control the Senate. To arrive at the 36% figure, one must include with the rural districts a substantial number of urban districts, districts with substantially dissimilar interests. There is absolutely no reason to assume that this theoretical majority would ever vote together on any issue so as to thwart the wishes of the majority of the voters of Colorado. Indeed, when we eschew the world of numbers, and look to the real world of effective representation, the simple fact of the matter is that Colorado's three metropolitan areas, Denver, Pueblo, and Colorado Springs, elect a majority of the Senate. The State of Colorado is not an economically or geographically homogeneous unit. The Continental Divide crosses the State in a meandering line from north to south, and Colorado's 104,247 square miles of area are almost equally divided between high plains in the east and rugged mountains in the west. The State's population is highly concentrated in the urbanized eastern edge of the foothills, while farther to the east lies that agricultural area of Colorado which is a part of the Great Plains. The area lying to the west of the Continental Divide is largely mountainous, with two-thirds of the population living in communities of less than 2,500 inhabitants or on farms. Livestock raising, mining and tourism are the dominant occupations. This area is further subdivided by a series of mountain ranges containing some of the highest peaks in the United States, isolating communities and making transportation from point to point difficult, and in some places during the winter months almost impossible. The fourth distinct region of the State is the South Central region, in which is located the most economically depressed area in the State. A scarcity of water makes a state-wide water policy a necessity, with each region affected differently by the problem. The District Court found that the people living in each of these four regions have interests unifying themselves and differentiating them from those in other regions. Given these underlying facts, certainly it was not irrational to conclude that effective representation of the interests of the residents of each of these regions was unlikely to be achieved if the rule of equal population districts were mechanically imposed; that planned departures from a strict per capita standard of representation were a desirable way of assuring some representation of distinct localities whose needs and problems might have passed unnoticed if districts had been drawn solely on a per capita basis; a desirable way of assuring that districts should be small enough in area, in a mountainous State like Colorado, where accessibility is affected by configuration as well as compactness of districts, to enable each senator to have firsthand knowledge of his entire district and to maintain close contact with his constituents; and a desirable way of avoiding the drawing of district lines which would submerge the needs and wishes of a portion of the electorate by grouping them in districts with larger numbers of voters with wholly different interests. It is clear from the record that if per capita representation were the rule in both houses of the Colorado Legislature, counties having small populations would have to be merged with larger counties having totally dissimilar interests.. Their representatives would not only be unfamiliar with the problems of the smaller county, but the interests of the smaller counties might well be totally submerged by the interests of the larger counties with which they are joined. Since representatives representing conflicting interests might well pay greater attention to the views of the majority, the minority interest could be denied any effective representation at all. Its votes would not be merely diluted, an injury which the Court considers of constitutional dimensions, but rendered totally nugatory. The findings of the District Court speak for themselves: The heterogeneous characteristics of Colorado justify geographic districting for the election of the members of one chamber of the legislature. In no other way may representation be afforded to insular minorities. Without such districting the metropolitan areas could theoretically, and no doubt practically, dominate both chambers of the legislature. . . . The realities of topographic conditions with their resulting effect on population may not be ignored. For an example, if [the rule of equal population districts] was to be accepted, Colorado would have one senator for approximately every 45,000 persons. Two contiguous Western Region senatorial districts, Nos. 29 and 37, have a combined population of 51,675 persons inhabiting an area of 20,514 square miles. The division of this area into two districts does not offend any constitutional provisions. Rather, it is a wise recognition of the practicalities of life. . . . We are convinced that the apportionment of the Senate by Amendment No. 7 recognizes population as a prime, but not controlling, factor and gives effect to such important considerations as geography, compactness and contiguity of territory, accessibility, observance of natural boundaries, conformity to historical divisions such as county lines and prior representation districts, and `a proper diffusion of political initiative as between a state's thinly populated counties and those having concentrated masses.'  219 F. Supp., at 932. From 1954 until the adoption of Amendment 7 in 1962, the issue of apportionment had been the subject of intense public debate. The present apportionment was proposed and supported by many of Colorado's leading citizens. The factual data underlying the apportionment were prepared by the wholly independent Denver Research Institute of the University of Denver. Finally, the apportionment was adopted by a popular referendum in which not only a 2-1 majority of all the voters in Colorado, but a majority in each county, including those urban counties allegedly discriminated against, voted for the present plan in preference to an alternative proposal providing for equal representation per capita in both legislative houses. As the District Court said: The contention that the voters have discriminated against themselves appalls rather than convinces. Difficult as it may be at times to understand mass behavior of human beings, a proper recognition of the judicial function precludes a court from holding that the free choice of the voters between two conflicting theories of apportionment is irrational or the result arbitrary. Ibid. The present apportionment, adopted overwhelmingly by the people in a 1962 popular referendum as a state constitutional amendment, is entirely rational, and the amendment by its terms provides for keeping the apportionment current. [15] Thus the majority has consciously chosen to protect the minority's interests, and under the liberal initiative provisions of the Colorado Constitution, it retains the power to reverse its decision to do so. Therefore, there can be no question of frustration of the basic principle of majority rule.",colorado.
+96,106856,1,4,". . . Constitutional statecraft often involves a degree of protection for minorities which limits the principle of majority rule. Perfect numerical equality in voting rights would be achieved if an entire State legislature were elected at large but the danger is too great that the remote and less populated sections would be neglected or that, in the event of a conflict between two parts of the State, the more populous region would elect the entire legislature and in its councils the minority would never be heard. Due recognition of geographic and other minority interests is also a comprehensible reason for reducing the weight of votes in great cities. If seventy percent of a State's population lived in a single city and the remainder was scattered over wide country areas and small towns, it might be reasonable to give the city voters somewhat smaller representation than that to which they would be entitled by a strictly numerical apportionment in order to reduce the danger of total neglect of the needs and wishes of rural areas. The above two paragraphs are from the brief which the United States filed in Baker v. Carr, 369 U. S. 186. [16] It would be difficult to find words more aptly to describe the State of New York, or more clearly to justify the system of legislative apportionment which that State has chosen. Legislative apportionment in New York follows a formula which is written into the New York Constitution and which has been a part of its fundamental law since 1894. The apportionment is not a crazy quilt; it is rational, it is applied systematically, and it is kept reasonably current. The formula reflects a policy which accords major emphasis to population, some emphasis to region and community, and a reasonable limitation upon massive overcentralization of power. In order to effectuate this policy, the apportionment formula provides that each county shall have at least one representative in the Assembly, that the smaller counties shall have somewhat greater representation in the legislature than representation based solely on numbers would accord, and that some limits be placed on the representation of the largest counties in order to prevent one megalopolis from completely dominating the legislature. New York is not unique in considering factors other than population in its apportionment formula. Indeed, the inclusion of such other considerations is more the rule than the exception throughout the States. Two-thirds of the States have given effect to factors other than population in apportioning representation in both houses of their legislatures, and over four-fifths of the States give effect to nonpopulation factors in at least one house. [17] The typical restrictions are those like New York's affording minimal representation to certain political subdivisions, or prohibiting districts composed of parts of two or more counties, or requiring districts to be composed of contiguous and compact territory, or fixing the membership of the legislative body. All of these factors tend to place practical limitations on apportionment according to population, even if the basic underlying system is one of equal population districts for representation in one or both houses of the legislature. That these are rational policy considerations can be seen from even a cursory examination of New York's political makeup. In New York many of the interests which a citizen may wish to assert through the legislative process are interests which touch on his relation to the government of his county as well as to that of the State, and consequently these interests are often peculiar to the citizens of one county. As the District Court found, counties have been an integral part of New York's governmental structure since early colonial times, and the many functions performed by the counties today reflect both the historic gravitation toward the county as the central unit of political activity and the realistic fact that the county is usually the most efficient and practical unit for carrying out many governmental programs. [18] A policy guaranteeing minimum representation to each county is certainly rational, particularly in a State like New York. It prevents less densely populated counties from being merged into multicounty districts where they would receive no effective representation at all. Further, it may be only by individual county representation that the needs and interests of all the areas of the State can be brought to the attention of the legislative body. The rationality of individual county representation becomes particularly apparent in States where legislative action applicable only to one or more particular counties is the permissible tradition. Despite the rationality of according at least one representative to each county, it is clear that such a system of representation, coupled with a provision fixing the maximum number of members in the legislative bodyโ€”a necessity if the body is to remain small enough for manageably effective actionโ€”has the result of creating some population disparities among districts. But since the disparity flows from the effectuation of a rational state policy, the mere existence of the disparity itself can hardly be considered an invidious discrimination. In addition to ensuring minimum representation to each county, the New York apportionment formula, by allocating somewhat greater representation to the smaller counties while placing limitations on the representation of the largest counties, is clearly designed to protect against overcentralization of power. To understand fully the practical importance of this consideration in New York, one must look to its unique characteristics. New York is one of the few States in which the central cities can elect a majority of representatives to the legislature. As the District Court found, the 10 most populous counties in the State control both houses of the legislature under the existing apportionment system. Each of these counties is heavily urban; each is in a metropolitan area. Together they contain 73.5% of the citizen population, and are represented by 65.5% of the seats in the Senate and 62% of the seats in the Assembly. Moreover, the nine counties comprising one metropolitan areaโ€”New York City, Nassau, Rockland, Suffolk and Westchesterโ€”contain 63.2% of the total citizen population and elect a clear majority of both houses of the legislature under the existing system which the Court today holds invalid. Obviously, therefore, the existing system of apportionment clearly guarantees effective majority representation and control in the State Legislature. But this is not the whole story. New York City, with its seven million people and a budget larger than that of the State, has, by virtue of its concentration of population, homogeneity of interest, and political cohesiveness, acquired an institutional power and political influence of its own hardly measurable simply by counting the number of its representatives in the legislature. Elihu Root, a delegate to the New York Constitutional Convention of 1894, which formulated the basic structure of the present apportionment plan, made this very point at that time: The question is whether thirty separate centers of 38,606 each scattered over the country are to be compared upon the basis of absolute numerical equality with one center of thirty times 38,606 in one city, with all the multiplications of power that comes from representing a single interest, standing together on all measures against a scattered and disunited representation from the thirty widely separated single centers of 38,606. Thirty men from one place owing their allegiance to one political organization, representing the interest of one community, voting together, acting together solidly; why, they are worth double the scattered elements of power coming from hundreds of miles apart. 3 Revised Record of the New York State Constitutional Convention of 1894, p. 1215. Surely it is not irrational for the State of New York to be justifiably concerned about balancing such a concentration of political power, and certainly there is nothing in our Federal Constitution which prevents a State from reasonably translating such a concern into its apportionment formula. See MacDougall v. Green, 335 U. S. 281. The State of New York is large in area and diverse in interests. The Hudson and Mohawk Valleys, the farm communities along the southern belt, the many suburban areas throughout the State, the upstate urban and industrial centers, the Thousand Islands, the Finger Lakes, the Berkshire Hills, the Adirondacksโ€”the people of all these and many other areas, with their aspirations and their interests, just as surely belong to the State as does the giant metropolis which is New York City. What the State has done is to adopt a plan of legislative apportionment which is designed in a rational way to ensure that minority voices may be heard, but that the will of the majority shall prevail.",new york.
+97,112150,2,1,"12 The city's first contention is that the Excessive Fines Clause of the Eighth Amendment is applicable to contempt sanctions and that the particular sanctions imposed here were constitutionally excessive. The city accurately observes in this regard that the Court has indicated that the applicability of this Clause to punitive damages in civil cases is a question of some moment and difficulty. Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 79, 108 S.Ct. 1645, 1651, 100 L.Ed.2d 62 (1988). But, even if the Clause applies to punitive damages, the city offers no compelling reason why we should extend its reach to civil contempt sanctions. Indeed, it appears settled that the Cruel and Unusual Punishments Clause does not apply to civil contempt sanctions. See Ingraham v. Wright, 430 U.S. 651, 668, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977). This is not surprising since the Cruel and Unusual Punishments Clause, like the Excessive Fines Clause, applies to punishments for past conduct, while civil contempt sanctions are designed to secure future compliance with judicial decrees. See ibid.; Uphaus v. Wyman, 360 U.S. 72, 81, 79 S.Ct. 1040, 1046, 3 L.Ed.2d 1090 (1959). In any event, even assuming that the size of monetary contempt sanctions is limited by the Excessive Fines Clause or even the Due Process Clause, I do not think that the fines against the city, as modified by the Court of Appeals, are unreasonable. The city of Yonkers has an annual budget of $337 million. At one point, it offered to forfeit $30 million in federal funds to avoid compliance with the consent decree. Under these circumstances, a fine schedule which imposes $1 million a day only after noncompliance for 15 consecutive days can hardly be deemed unreasonable. 13 The city's second contention is that the contempt adjudication itself was improper because the District Court should have adopted less restrictive alternatives such as direct enactment of the legislation or appointment of an Affordable Housing Commission, and because the city had a valid impossibility defense. Neither contention has merit. First, the District Court had no need to resort to its equitable authority, codified in Federal Rule of Civil Procedure 70, to deem the legislation enacted, as the city had committed itself to adopting that legislation in a court-approved consent order. Surely it is both less disruptive and more effective to order compliance with that order than to usurp completely the council's legislative authority and enact the legislation directly. Second, having previously objected to the creation of an Affordable Housing Commission, the city cannot now claim that the District Court should have created such an entity. The city also contends the District Court erred by rejecting its impossibility defense. It claims that it does not have the ability to compel the councilmembers to enact the legislation or to remove recalcitrant members. The city's attempt to divorce itself from the actions of its councilmembers is disingenuous. As the city repeatedly points out in its application, Yonkers is relatively unique in that most of the governmental power in the city is centralized in the legislative branch. For this reason, the city is the council. Indeed, because the council sets municipal policy, see Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986), it is reasonable to attribute to the city the acts of its elected policymakers.",The City
+98,112150,2,2,"14 The councilmembers' primary argument is that a federal court lacks authority to order an individual local legislator, as opposed to the body in which he serves, to enact specific legislation. In the councilmembers' view, a federal court, by entering such an order, runs roughshod over what they see as the local legislator's right to be absolutely free from such restraints. While this issue arguably is of substantial interest, this case is not a proper vehicle for addressing it. In the first place, the broad question raised by the councilmembers is not presented by these facts. As the Court of Appeals stressed below, this is not a case where a federal court enjoined local legislators to vote in favor of a particular bill in order to remedy a constitutional violation. Far from that, this case presents the much more narrow question whether a federal court may order local officials to abide by an explicit obligation—here, a promise to enact legislation—contained in a consent decree that the officials voted to adopt and that the District Court agreed to accept. In short, this case is about a District Court's ability to enforce its consent decrees. In no way did the Court of Appeals even hint that federal courts possess the broad powers over local legislators that the councilmembers claim that the Court of Appeals arrogated to itself and the District Court. 15 In any event, it is not at all clear that federal courts lack authority in all circumstances to enter orders affecting a local legislator's performance of his legislative duties. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), the Court held that a District Court could order local school authorities to implement certain programs designed to ameliorate the effects of prior segregation policies. As a practical matter, the import of the Court's decision was that the individual members of the local school authority were required to vote a certain way for specific remedial programs. This necessary effect of a remedial order is highlighted by the Court's earlier decision in Griffin v. Prince Edward County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). There, the Court noted that a District Court possessed authority to order county supervisors to exercise the power that is theirs to levy taxes in order to reopen public schools that had been closed in an attempt to avoid a prior desegregation order. Id., at 233. As in this case, the individual local officials in Griffin openly flouted clear commands of a District Court. 16 Although cases like Milliken and Griffin may stand for the proposition that the district courts may enjoin local legislators to take certain affirmative steps in order to remedy constitutional violations, the Court has never squarely addressed the question whether these local legislators are entitled to some form of legislative immunity. In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, n. 26, 99 S.Ct. 1171, 1178, n. 26, 59 L.Ed.2d 401 (1979), the Court specifically left open the question whether local legislators are entitled to any immunity. (Earlier, in Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), state legislators were afforded absolute immunity for activities within the sphere of legislative activity; Lake Country extended such immunity to regional legislators, 440 U.S., at 405, 99 S.Ct., at 1179.) Since Lake Country issued, seven Courts of Appeals have held that local legislators are entitled to absolute legislative immunity. None of these cases, however, involved situations where the District Court sought to compel certain behavior to redress constitutional violations, let alone situations where the District Court merely sought to enforce a consent decree. Instead, the cases typically involved private-party damages actions against individual members of local governing boards. It would seem sensible to allow the lower courts to be the first to resolve the question whether legislative immunity protects local officials against the imposition of contempt sanctions for noncompliance with a consent decree imposing legislative obligations. 17 Even assuming that this question warrants the Court's immediate attention, the instant case contains a factual peculiarity that makes it unsuitable for review. The city stresses its extraordinary system of governance, in which the council exercises both legislative and executive powers. This necessarily complicates any legislative immunity analysis, particularly if one believes that the council exercised its executive prerogatives by not complying with the consent decree, and by not abiding by the July 26, 1988, order. Before the Court takes up the issue of local legislative immunity, it should wait for a case in which the legislative body is exercising only legislative powers. 18 Finally, the First Amendment and procedural due process claims strike me as totally meritless for the reasons articulated in the Court of Appeals' opinion. In any event, they involve the application of settled law to a particular set of facts.",The Councilmembers
+99,111062,2,1,"Each of the respondents owns a large inventory of valuable copyrights, but in the total spectrum of television programming their combined market share is small. The exact percentage is not specified, but it is well below 10%. [22] If they were to prevail, the outcome of this litigation would have a significant impact on both the producers and the viewers of the remaining 90% of the programming in the Nation. No doubt, many other producers share respondents' concern about the possible consequences of unrestricted copying. Nevertheless the findings of the District Court make it clear that time-shifting may enlarge the total viewing audience and that many producers are willing to allow private time-shifting to continue, at least for an experimental time period. [23] The District Court found: Even if it were deemed that home-use recording of copyrighted material constituted infringement, the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording. Defendants introduced considerable testimony at trial about the potential for such copying of sports, religious, educational and other programming. This included testimony from representatives of the Offices of the Commissioners of the National Football, Basketball, Baseball and Hockey Leagues and Associations, the Executive Director of National Religious Broadcasters and various educational communications agencies. Plaintiffs attack the weight of the testimony offered and also contend that an injunction is warranted because infringing uses outweigh noninfringing uses. Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law. 480 F. Supp., at 468. Although the District Court made these statements in the context of considering the propriety of injunctive relief, the statements constitute a finding that the evidence concerning sports, religious, educational and other programming was sufficient to establish a significant quantity of broadcasting whose copying is now authorized, and a significant potential for future authorized copying. That finding is amply supported by the record. In addition to the religious and sports officials identified explicitly by the District Court, [24] two items in the record deserve specific mention. First is the testimony of John Kenaston, the station manager of Channel 58, an educational station in Los Angeles affiliated with the Public Broadcasting Service. He explained and authenticated the station's published guide to its programs. [25] For each program, the guide tells whether unlimited home taping is authorized, home taping is authorized subject to certain restrictions (such as erasure within seven days), or home taping is not authorized at all. The Spring 1978 edition of the guide described 107 programs. Sixty-two of those programs or 58% authorize some home taping. Twenty-one of them or almost 20% authorize unrestricted home taping. [26] Second is the testimony of Fred Rogers, president of the corporation that produces and owns the copyright on Mister Rogers' Neighborhood. The program is carried by more public television stations than any other program. Its audience numbers over 3,000,000 families a day. He testified that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times. [27] If there are millions of owners of VTR's who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers' Neighborhood, and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works. The respondents do not represent a class composed of all copyright holders. Yet a finding of contributory infringement would inevitably frustrate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting. Of course, the fact that other copyright holders may welcome the practice of time-shifting does not mean that respondents should be deemed to have granted a license to copy their programs. Third-party conduct would be wholly irrelevant in an action for direct infringement of respondents' copyrights. But in an action for contributory infringement against the seller of copying equipment, the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome. In this case, the record makes it perfectly clear that there are many important producers of national and local television programs who find nothing objectionable about the enlargement in the size of the television audience that results from the practice of time-shifting for private home use. [28] The seller of the equipment that expands those producers' audiences cannot be a contributory infringer if, as is true in this case, it has had no direct involvement with any infringing activity.",Authorized Time-Shifting
+100,111062,2,2,"Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 154-155. Moreover, the definition of exclusive rights in § 106 of the present Act is prefaced by the words subject to sections 107 through 118. Those sections describe a variety of uses of copyrighted material that are not infringements of copyright notwithstanding the provisions of section 106. The most pertinent in this case is § 107, the legislative endorsement of the doctrine of fair use. [29] That section identifies various factors [30] that enable a court to apply an equitable rule of reason analysis to particular claims of infringement. [31] Although not conclusive, the first factor requires that the commercial or nonprofit character of an activity be weighed in any fair use decision. [32] If the Betamax were used to make copies for a commercial or profitmaking purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U. S. C. § 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced, see § 107(3), does not have its ordinary effect of militating against a finding of fair use. [33] This is not, however, the end of the inquiry because Congress has also directed us to consider the effect of the use upon the potential market for or value of the copyrighted work. § 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit. [34] Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated. In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents' evidence as follows: Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in `not a great deal of harm.' Plaintiffs' greatest concern about time-shifting is with `a point of important philosophy that transcends even commercial judgment.' They fear that with any Betamax usage, `invisible boundaries' are passed: `the copyright owner has lost control over his program.'  480 F. Supp., at 467. Later in its opinion, the District Court observed: Most of plaintiffs' predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA's president, calls a `black art' because of the significant level of imprecision involved in the calculations. Id., at 469. [35] There was no need for the District Court to say much about past harm. Plaintiffs have admitted that no actual harm to their copyrights has occurred to date. Id., at 451. On the question of potential future harm from time-shifting, the District Court offered a more detailed analysis of the evidence. It rejected respondents' fear that persons `watching' the original telecast of a program will not be measured in the live audience and the ratings and revenues will decrease, by observing that current measurement technology allows the Betamax audience to be reflected. Id., at 466. [36] It rejected respondents' prediction that live television or movie audiences will decrease as more people watch Betamax tapes as an alternative, with the observation that [t]here is no factual basis for [the underlying] assumption. Ibid. [37] It rejected respondents' fear that time-shifting will reduce audiences for telecast reruns, and concluded instead that given current market practices, this should aid plaintiffs rather than harm them. Ibid. [38] And it declared that respondents' suggestion that theater or film rental exhibition of a program will suffer because of time-shift recording of that program lacks merit. Id., at 467. [39] After completing that review, the District Court restated its overall conclusion several times, in several different ways. Harm from time-shifting is speculative and, at best, minimal. Ibid. The audience benefits from the time-shifting capability have already been discussed. It is not implausible that benefits could also accrue to plaintiffs, broadcasters, and advertisers, as the Betamax makes it possible for more persons to view their broadcasts. Ibid. No likelihood of harm was shown at trial, and plaintiffs admitted that there had been no actual harm to date. Id., at 468-469. Testimony at trial suggested that Betamax may require adjustments in marketing strategy, but it did not establish even a likelihood of harm. Id., at 469. Television production by plaintiffs today is more profitable than it has ever been, and, in five weeks of trial, there was no concrete evidence to suggest that the Betamax will change the studios' financial picture. Ibid. The District Court's conclusions are buttressed by the fact that to the extent time-shifting expands public access to freely broadcast television programs, it yields societal benefits. In Community Television of Southern California v. Gottfried, 459 U. S. 498, 508, n. 12 (1983), we acknowledged the public interest in making television broadcasting more available. Concededly, that interest is not unlimited. But it supports an interpretation of the concept of fair use that requires the copyright holder to demonstrate some likelihood of harm before he may condemn a private act of time-shifting as a violation of federal law. When these factors are all weighed in the equitable rule of reason balance, we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use. In light of the findings of the District Court regarding the state of the empirical data, it is clear that the Court of Appeals erred in holding that the statute as presently written bars such conduct. [40] In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcasts time-shifted by private viewers. And second, respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial noninfringing uses. Sony's sale of such equipment to the general public does not constitute contributory infringement of respondents' copyrights.",Unauthorized Time-Shifting
+101,111062,1,4,"The doctrine of fair use has been called, with some justification, the most troublesome in the whole law of copyright. Dellar v. Samuel Goldwyn, Inc., 104 F. 2d 661, 662 (CA2 1939); see Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F. 2d 1171, 1174 (CA5 1980); Meeropol v. Nizer, 560 F. 2d 1061, 1068 (CA2 1977), cert. denied, 434 U. S. 1013 (1978). Although courts have constructed lists of factors to be considered in determining whether a particular use is fair, [27] no fixed criteria have emerged by which that determination can be made. This Court thus far has provided no guidance; although fair use issues have come here twice, on each occasion the Court was equally divided and no opinion was forthcoming. Williams & Wilkins Co. v. United States, 203 Ct. Cl. 74, 487 F. 2d 1345 (1973), aff'd, 420 U. S. 376 (1975); Benny v. Loew's Inc., 239 F. 2d 532 (CA9 1956), aff'd sub nom. Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U. S. 43 (1958). Nor did Congress provide definitive rules when it codified the fair use doctrine in the 1976 Act; it simply incorporated a list of factors to be considered: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and, perhaps the most important, the effect of the use upon the potential market for or value of the copyrighted work (emphasis supplied). § 107. No particular weight, however, was assigned to any of these, and the list was not intended to be exclusive. The House and Senate Reports explain that § 107 does no more than give statutory recognition to the fair use doctrine; it was intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. 1976 House Report 66. See 1975 Senate Report 62; S. Rep. No. 93-983, p. 116 (1974); H. R. Rep. No. 83, 90th Cong., 1st Sess., 32 (1967); H. R. Rep. No. 2237, 89th Cong., 2d Sess., 61 (1966).
+Despite this absence of clear standards, the fair use doctrine plays a crucial role in the law of copyright. The purpose of copyright protection, in the words of the Constitution, is to promote the Progress of Science and useful Arts. Copyright is based on the belief that by granting authors the exclusive rights to reproduce their works, they are given an incentive to create, and that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in `Science and the useful Arts.'  Mazer v. Stein, 347 U. S. 201, 219 (1954). The monopoly created by copyright thus rewards the individual author in order to benefit the public. Twentieth Century Music Corp. v. Aiken, 422 U. S., at 156; Fox Film Corp. v. Doyal, 286 U. S. 123, 127-128 (1932); see H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). There are situations, nevertheless, in which strict enforcement of this monopoly would inhibit the very Progress of Science and useful Arts that copyright is intended to promote. An obvious example is the researcher or scholar whose own work depends on the ability to refer to and to quote the work of prior scholars. Obviously, no author could create a new work if he were first required to repeat the research of every author who had gone before him. [28] The scholar, like the ordinary user, of course could be left to bargain with each copyright owner for permission to quote from or refer to prior works. But there is a crucial difference between the scholar and the ordinary user. When the ordinary user decides that the owner's price is too high, and forgoes use of the work, only the individual is the loser. When the scholar forgoes the use of a prior work, not only does his own work suffer, but the public is deprived of his contribution to knowledge. The scholar's work, in other words, produces external benefits from which everyone profits. In such a case, the fair use doctrine acts as a form of subsidy — albeit at the first author's expense — to permit the second author to make limited use of the first author's work for the public good. See Latman Fair Use Study 31; Gordon, Fair Use as Market Failure: A Structural Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600, 1630 (1982). A similar subsidy may be appropriate in a range of areas other than pure scholarship. The situations in which fair use is most commonly recognized are listed in § 107 itself; fair use may be found when a work is used for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research. The House and Senate Reports expand on this list somewhat, [29] and other examples may be found in the case law. [30] Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work. [31] The fair use doctrine, in other words, permits works to be used for socially laudable purposes. See Copyright Office, Briefing Papers on Current Issues, reprinted in 1975 House Hearings 2051, 2055. I am aware of no case in which the reproduction of a copyrighted work for the sole benefit of the user has been held to be fair use. [32] I do not suggest, of course, that every productive use is a fair use. A finding of fair use still must depend on the facts of the individual case, and on whether, under the circumstances, it is reasonable to expect the user to bargain with the copyright owner for use of the work. The fair use doctrine must strike a balance between the dual risks created by the copyright system: on the one hand, that depriving authors of their monopoly will reduce their incentive to create, and, on the other, that granting authors a complete monopoly will reduce the creative ability of others. [33] The inquiry is necessarily a flexible one, and the endless variety of situations that may arise precludes the formulation of exact rules. But when a user reproduces an entire work and uses it for its original purpose, with no added benefit to the public, the doctrine of fair use usually does not apply. There is then no need whatsoever to provide the ordinary user with a fair use subsidy at the author's expense. The making of a videotape recording for home viewing is an ordinary rather than a productive use of the Studios' copyrighted works. The District Court found that Betamax owners use the copy for the same purpose as the original. They add nothing of their own. 480 F. Supp., at 453. Although applying the fair use doctrine to home VTR recording, as Sony argues, may increase public access to material broadcast free over the public airwaves, I think Sony's argument misconceives the nature of copyright. Copyright gives the author a right to limit or even to cut off access to his work. Fox Film Corp. v. Doyal, 286 U. S., at 127. A VTR recording creates no public benefit sufficient to justify limiting this right. Nor is this right extinguished by the copyright owner's choice to make the work available over the airwaves. Section 106 of the 1976 Act grants the copyright owner the exclusive right to control the performance and the reproduction of his work, and the fact that he has licensed a single television performance is really irrelevant to the existence of his right to control its reproduction. Although a television broadcast may be free to the viewer, this fact is equally irrelevant; a book borrowed from the public library may not be copied any more freely than a book that is purchased. It may be tempting, as, in my view, the Court today is tempted, to stretch the doctrine of fair use so as to permit unfettered use of this new technology in order to increase access to television programming. But such an extension risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create. [34] Even in the context of highly productive educational uses, Congress has avoided this temptation; in passing the 1976 Act, Congress made it clear that off-the-air videotaping was to be permitted only in very limited situations. See 1976 House Report 71; 1975 Senate Report 64. And, the Senate Report adds, [t]he committee does not intend to suggest . . . that off-the-air recording for convenience would under any circumstances, be considered `fair use.'  Id., at 66. I cannot disregard these admonitions.
+I recognize, nevertheless, that there are situations where permitting even an unproductive use would have no effect on the author's incentive to create, that is, where the use would not affect the value of, or the market for, the author's work. Photocopying an old newspaper clipping to send to a friend may be an example; pinning a quotation on one's bulletin board may be another. In each of these cases, the effect on the author is truly de minimis. Thus, even though these uses provide no benefit to the public at large, no purpose is served by preserving the author's monopoly, and the use may be regarded as fair. Courts should move with caution, however, in depriving authors of protection from unproductive ordinary uses. As has been noted above, even in the case of a productive use, § 107(4) requires consideration of the effect of the use upon the potential market for or value of the copyrighted work (emphasis added). [A] particular use which may seem to have little or no economic impact on the author's rights today can assume tremendous importance in times to come. Register's Supplementary Report 14. Although such a use may seem harmless when viewed in isolation, [i]solated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented. 1975 Senate Report 65. I therefore conclude that, at least when the proposed use is an unproductive one, a copyright owner need prove only a potential for harm to the market for or the value of the copyrighted work. See 3 M. Nimmer, Copyright § 13.05[E][4][c], p. 13-84 (1983). Proof of actual harm, or even probable harm, may be impossible in an area where the effect of a new technology is speculative, and requiring such proof would present the real danger . . . of confining the scope of an author's rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances. Register's Supplementary Report 14. Infringement thus would be found if the copyright owner demonstrates a reasonable possibility that harm will result from the proposed use. When the use is one that creates no benefit to the public at large, copyright protection should not be denied on the basis that a new technology that may result in harm has not yet done so. The Studios have identified a number of ways in which VTR recording could damage their copyrights. VTR recording could reduce their ability to market their works in movie theaters and through the rental or sale of prerecorded videotapes or videodiscs; it also could reduce their rerun audience, and consequently the license fees available to them for repeated showings. Moreover, advertisers may be willing to pay for only live viewing audiences, if they believe VTR viewers will delete commercials or if rating services are unable to measure VTR use; if this is the case, VTR recording could reduce the license fees the Studios are able to charge even for first-run showings. Library-building may raise the potential for each of the types of harm identified by the Studios, and time-shifting may raise the potential for substantial harm as well. [35] Although the District Court found no likelihood of harm from VTR use, 480 F. Supp., at 468, I conclude that it applied an incorrect substantive standard and misallocated the burden of proof. The District Court reasoned that the Studios had failed to prove that library-building would occur to any significant extent, id., at 467; that the Studios' prerecorded videodiscs could compete with VTR recordings and were arguably . . . more desirable, ibid.; that it was not clear that movie audiences will decrease, id., at 468; and that the practice of deleting commercials may be too tedious for many viewers, ibid. To the extent any decrease in advertising revenues would occur, the court concluded that the Studios had marketing alternatives at hand to recoup some of that predicted loss. Id., at 452. Because the Studios' prediction of harm was based on so many assumptions and on a system of marketing which is rapidly changing, the court was hesitant to identify `probable effects' of home-use copying. Ibid. The District Court's reluctance to engage in prediction in this area is understandable, but, in my view, the court was mistaken in concluding that the Studios should bear the risk created by this uncertainty. The Studios have demonstrated a potential for harm, which has not been, and could not be, refuted at this early stage of technological development. The District Court's analysis of harm, moreover, failed to consider the effect of VTR recording on the potential market for or the value of the copyrighted work, as required by § 107(4). [36] The requirement that a putatively infringing use of a copyrighted work, to be fair, must not impair a potential market for the work has two implications. First, an infringer cannot prevail merely by demonstrating that the copyright holder suffered no net harm from the infringer's action. Indeed, even a showing that the infringement has resulted in a net benefit to the copyright holder will not suffice. Rather, the infringer must demonstrate that he had not impaired the copyright holder's ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay to see or hear the copyrighted work. Second, the fact that a given market for a copyrighted work would not be available to the copyright holder were it not for the infringer's activities does not permit the infringer to exploit that market without compensating the copyright holder. See Iowa State University Research Foundation, Inc. v. American Broadcasting Cos., 621 F. 2d 57 (CA2 1980). In this case, the Studios and their amici demonstrate that the advent of the VTR technology created a potential market for their copyrighted programs. That market consists of those persons who find it impossible or inconvenient to watch the programs at the time they are broadcast, and who wish to watch them at other times. These persons are willing to pay for the privilege of watching copyrighted work at their convenience, as is evidenced by the fact that they are willing to pay for VTR's and tapes; undoubtedly, most also would be willing to pay some kind of royalty to copyright holders. The Studios correctly argue that they have been deprived of the ability to exploit this sizable market. It is thus apparent from the record and from the findings of the District Court that time-shifting does have a substantial adverse effect upon the potential market for the Studios' copyrighted works. Accordingly, even under the formulation of the fair use doctrine advanced by Sony, time-shifting cannot be deemed a fair use.",Fair Use
+102,111062,1,5,"From the Studios' perspective, the consequences of home VTR recording are the same as if a business had taped the Studios' works off the air, duplicated the tapes, and sold or rented them to members of the public for home viewing. The distinction is that home VTR users do not record for commercial advantage; the commercial benefit accrues to the manufacturer and distributors of the Betamax. I thus must proceed to discuss whether the manufacturer and distributors can be held contributorily liable if the product they sell is used to infringe. It is well established that liability for copyright infringement can be imposed on persons other than those who actually carry out the infringing activity. Kalem Co. v. Harper Brothers, 222 U. S. 55, 62-63 (1911); 3 M. Nimmer, Copyright § 12.04[A] (1983); see Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11; Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 198 (1931). Although the liability provision of the 1976 Act provides simply that [a]nyone who violates any of the exclusive rights of the copyright owner. . . is an infringer of the copyright, 17 U. S. C. § 501(a) (1982 ed.), the House and Senate Reports demonstrate that Congress intended to retain judicial doctrines of contributory infringement. 1975 Senate Report 57; 1976 House Report 61. [37] The doctrine of contributory copyright infringement, however, is not well defined. One of the few attempts at definition appears in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159 (CA2 1971). In that case the Second Circuit stated that one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a `contributory' infringer. Id., at 1162 (footnote omitted). While I have no quarrel with this general statement, it does not easily resolve the present case; the District Court and the Court of Appeals, both purporting to apply it, reached diametrically opposite results.
+In absolving Sony from liability, the District Court reasoned that Sony had no direct involvement with individual Betamax users, did not participate in any off-the-air copying, and did not know that such copying was an infringement of the Studios' copyright. 480 F. Supp., at 460. I agree with the Gershwin court that contributory liability may be imposed even when the defendant has no formal control over the infringer. The defendant in Gershwin was a concert promoter operating through local concert associations that it sponsored; it had no formal control over the infringing performers themselves. 443 F. 2d, at 1162-1163. See also Twentieth Century Music Corp. v. Aiken, 422 U. S., at 160, n. 11. Moreover, a finding of contributory infringement has never depended on actual knowledge of particular instances of infringement; it is sufficient that the defendant have reason to know that infringement is taking place. 443 F. 2d, at 1162; see Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 256 F. Supp. 399 (SDNY 1966). [38] In the so-called dance hall cases, in which questions of contributory infringement arise with some frequency, proprietors of entertainment establishments routinely are held liable for unauthorized performances on their premises, even when they have no knowledge that copyrighted works are being performed. In effect, the proprietors in those cases are charged with constructive knowledge of the performances. [39] Nor is it necessary that the defendant be aware that the infringing activity violates the copyright laws. Section 504(c)(2) of the 1976 Act provides for a reduction in statutory damages when an infringer proves he was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, but the statute establishes no general exemption for those who believe their infringing activities are legal. Moreover, such an exemption would be meaningless in a case such as this, in which prospective relief is sought; once a court has established that the copying at issue is infringement, the defendants are necessarily aware of that fact for the future. It is undisputed in this case that Sony had reason to know the Betamax would be used by some owners to tape copyrighted works off the air. See 480 F. Supp., at 459-460. The District Court also concluded that Sony had not caused, induced, or contributed materially to any infringing activities of Betamax owners. Id., at 460. In a case of this kind, however, causation can be shown indirectly; it does not depend on evidence that particular Betamax owners relied on particular advertisements. In an analogous case decided just two Terms ago, this Court approved a lower court's conclusion that liability for contributory trademark infringement could be imposed on a manufacturer who suggested, even by implication that a retailer use the manufacturer's goods to infringe the trademark of another. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851 (1982); see id., at 860 (opinion concurring in result). I think this standard is equally appropriate in the copyright context. The District Court found that Sony has advertised the Betamax as suitable for off-the-air recording of favorite shows, novels for television, and classic movies, 480 F. Supp., at 436, with no visible warning that such recording could constitute copyright infringement. It is only with the aid of the Betamax or some other VTR, that it is possible today for home television viewers to infringe copyright by recording off-the-air. Off-the-air recording is not only a foreseeable use for the Betamax, but indeed is its intended use. Under the circumstances, I agree with the Court of Appeals that if off-the-air recording is an infringement of copyright, Sony has induced and materially contributed to the infringing conduct of Betamax owners. [40]
+Sony argues that the manufacturer or seller of a product used to infringe is absolved from liability whenever the product can be put to any substantial noninfringing use. Brief for Petitioners 41-42. The District Court so held, borrowing the staple article of commerce doctrine governing liability for contributory infringement of patents. See 35 U. S. C. § 271. [41] This Court today is much less positive. See ante, at 440-442. I do not agree that this technical judge-made doctrine of patent law, based in part on considerations irrelevant to the field of copyright, see generally Dawson Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 187-199 (1980), should be imported wholesale into copyright law. Despite their common constitutional source, see U. S. Const., Art. I, § 8, cl. 8, patent and copyright protections have not developed in a parallel fashion, and this Court in copyright cases in the past has borrowed patent concepts only sparingly. See Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 345-346 (1908). I recognize, however, that many of the concerns underlying the staple article of commerce doctrine are present in copyright law as well. As the District Court noted, if liability for contributory infringement were imposed on the manufacturer or seller of every product used to infringe — a typewriter, a camera, a photocopying machine — the wheels of commerce would be blocked. 480 F. Supp., at 461; see also Kalem Co. v. Harper Brothers, 222 U. S., at 62. I therefore conclude that if a significant portion of the product's use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product's infringing uses. See ante, at 440-441. If virtually all of the product's use, however, is to infringe, contributory liability may be imposed; if no one would buy the product for noninfringing purposes alone, it is clear that the manufacturer is purposely profiting from the infringement, and that liability is appropriately imposed. In such a case, the copyright owner's monopoly would not be extended beyond its proper bounds; the manufacturer of such a product contributes to the infringing activities of others and profits directly thereby, while providing no benefit to the public sufficient to justify the infringement. The Court of Appeals concluded that Sony should be held liable for contributory infringement, reasoning that [v]ideotape recorders are manufactured, advertised, and sold for the primary purpose of reproducing television programming, and [v]irtually all television programming is copyrighted material. 659 F. 2d, at 975. While I agree with the first of these propositions, [42] the second, for me, is problematic. The key question is not the amount of television programming that is copyrighted, but rather the amount of VTR usage that is infringing. [43] Moreover, the parties and their amici have argued vigorously about both the amount of television programming that is covered by copyright and the amount for which permission to copy has been given. The proportion of VTR recording that is infringing is ultimately a question of fact, [44] and the District Court specifically declined to make findings on the percentage of legal versus illegal home-use recording. 480 F. Supp., at 468. In light of my view of the law, resolution of this factual question is essential. I therefore would remand the case for further consideration of this by the District Court.",Contributory Infringement
+103,98903,1,1,"We shall consider the various contentions which come under this heading under separate subdivisions. (a) Equal protection of the laws and penalties. The want of equality is based upon two considerations. The one is the exemption of certain short line and electric railroads. We dismiss it because it has been adversely disposed of by many previous decisions. [1d] The second rests upon the charge that unlawful inequality results because the statute deals not with all, but only with the wages of employees engaged in the movement of trains. But such employees were those concerning whom the dispute as to wages existed growing out of which the threat of interruption of interstate commerce arose, — a consideration which establishes an adequate basis for the statutory classification. As to the penalties it suffices to say that in this case a recovery of penalties is not asked and consequently the subject may well be postponed until it actually arises for decision. [2b] (b) Want of due process resulting from the improvidence with which the statute was enacted and the impossibility in practice of giving effect to its provisions; in other words, as stated in the argument, its  unworkability.  The contention virtually is that, conceding the legislative power under the circumstances stated to fix a standard of wages, such authority necessarily contemplates consideration before action and not a total and obvious disregard of every right of the employer and his property — a want of consideration and a disregard which, it is urged, appear on the face of the statute and which cause it therefore to amount to a decision without a hearing and to a mere arbitrary bestowal of millions by way of wages upon employees to the injury not only of the employer but of the public upon whom the burden must necessarily fall. Upon the assumption that unconstitutionality would result if there be ground for the propositions, [1e] let us test them. In the first place, as we have seen, there is no room for question that it was the dispute between the parties, their failure to agree as to wages and the threatened disruption of interstate commerce caused by that dispute which was the subject which called for the exertion of the power to regulate commerce and which was dealt with by the exertion of that power which followed. In the second place, all the contentions as to want of consideration sustaining the action taken are disposed of by the history we have given of the events out of which the controversy grew, the public nature of the dispute, the interposition of the President, the call by him upon Congress for action in conjunction with the action taken, all demonstrating not unwitting action or a failure to consider, whatever may be the room, if any, for a divergence of opinion as to the want of wisdom shown by the action taken. But to bring the subject to a closer analysis, let us briefly recall the situation, the conditions dealt with and the terms of the statute. What was the demand made by the employees? A permanent agreement as to wages by which the period should be shortened in which the fixed mileage task previously existing should be performed, an allowance to be made of extra pay by the minute at one and one-half times the regular pay for any overtime required to perform the task if it was not done in the reduced time, with a condition that no reduction in wages should occur from putting the demands into effect and also that in that event their operation should be binding upon the employers and optional on the employees. What was the real dispute? The employers insisted that this largely increased the pay because the allotted task would not be performed in the new and shorter time and a large increase for overtime would result. The employees on the other hand insisted that as the task would be unchanged and would be performed in the shorter hours, there would be no material, or at all events no inordinate, increase of pay. What did the statute do in settling these differences? It permanently applied an eight-hour standard for work and wages which existed and had been in practice on about fifteen per cent. of the railroads. It did not fix the amount of the task to be done during those hours, thus leaving that to the will of the parties. It yielded in part to the objections of the employers by permitting overtime only if necessary and it also absolutely rejected in favor of the employers and against the employees the demand for an increased rate of pay during overtime if there was any and confined it to the regular rate and it moreover rejected the option in favor of the employees by making the law obligatory upon both parties. In addition, by the provision prohibiting a lower rate of wages under the new system than was previously paid, it fixed the wages for such period. But this was not a permanent fixing, but in the nature of things a temporary one which left the will of the employers and employees to control at the end of the period if their dispute had then ceased. Considering the extreme contentions relied upon in the light of this situation we can discover no basis upon which they may rest. It certainly is not afforded because of the establishment of the eight-hour standard, since that standard was existing as we have said on about fifteen per cent. of the railroads, had already been established by act of Congress as a basis for work on government contracts, and had been upheld by this court in sustaining state legislation. [1f] It certainly cannot be said that the act took away from the parties, employers and employees, their private right to contract on the subject of a scale of wages since the power which the act exerted was only exercised because of the failure of the parties to agree and the resulting necessity for the lawmaking will to supply the standard rendered necessary by such failure of the parties to exercise their private right. Further, in view of the provisions of the act narrowing and limiting the demands made, the statute certainly affords no ground for the proposition that it arbitrarily considered only one side of the dispute to the absolute and total disregard of the rights of the other, since it is impossible to state the modifications which the statute made of the demands without by the very words of the statement manifesting that there was an exertion of legislative discretion and judgment in acting upon the dispute between the parties. How can this demonstration fail to result if it be stated that the scope of the task to be performed in the eight-hour period was not expressed but was left therefore to adjustment between the parties, that overtime was only permitted if necessary, and that extra pay for overtime was rejected and regular rate of pay substituted? Conceding that there would necessarily result from the enforcement of the statute an increase of pay during the period for which the statute forbade a reduction, such concession would not bring the statute within the grounds stated. The right to meet the situation caused by the dispute and to fix a standard which should be binding upon both parties included of course the legislative authority to take into consideration the elements of difference and in giving heed to them all to express such legislative judgment as was deemed best under the circumstances. From this it also follows that there is no foundation for the proposition that arbitrary action in total disregard of the private rights concerned was taken because the right to change or lower the wages was left to be provided for by agreement between the parties after a reasonable period which the statute fixed. This must be unless it can be said that to afford an opportunity for the exertion of the private right of agreement as to the standard of wages was in conflict with such right. When it is considered that no contention is made that in any view the enforcement of the act would result in confiscation, the misconception upon which all the propositions proceed becomes apparent. Indeed in seeking to test the arguments by which the propositions are sought to be supported we are of opinion that it is evident that in substance they assert not that no legislative judgment was exercised, but that in enacting the statute there was an unwise exertion of legislative power begotten either from some misconception or some mistaken economic view or partiality for the rights of one disputant over the other or some unstated motive which should not have been permitted to influence action. But to state such considerations is to state also the entire want of judicial power to consider them, — a view which therefore has excluded them absolutely from our mind and which impels us as a duty to say that we have not in the slightest degree passed upon them. While it is a truism to say that the duty to enforce the Constitution is paramount and abiding, it is also true that the very highest of judicial duties is to give effect to the legislative will and in doing so to scrupulously abstain from permitting subjects which are exclusively within the field of legislative discretion to influence our opinion or to control judgment. Finally we say that the contention that the act was void and could not be made operative because of the unworkability of its provisions is without merit, since we see no reason to doubt that if the standard fixed by the act were made applicable and a candid effort followed to carry it out, the result would be without difficulty accomplished. It is true that it might follow that in some cases because of particular terms of employment or exceptional surroundings some change might be necessary, but these exceptions afford no ground for holding the act void because its provisions are not susceptible in practice of being carried out. Being of the opinion that Congress had the power to adopt the act in question, whether it be viewed as a direct fixing of wages to meet the absence of a standard on that subject resulting from the dispute between the parties or as the exertion by Congress of the power which it undoubtedly possessed to provide by appropriate legislation for compulsory arbitration — a power which inevitably resulted from its authority to protect interstate commerce in dealing with a situation like that which was before it — we conclude that the court below erred in holding the statute was not within the power of Congress to enact and in restraining its enforcement and its decree therefore must be and it is reversed and the cause remanded with directions to dismiss the bill. And it is so ordered.",Such an abuse of the power if possessed as rendered its exercise unconstitutional.
+104,107058,1,2,"The undersigned complaint, being duly sworn, states: That he is a Special Agent of the Internal Revenue Service and, in the performance of the duties imposed on him by law, he has conducted an investigation of the Federal income tax liability of Max Jaben for the calendar year 1956, by examining the said taxpayer's tax return for the year 1956 and other years; by identifying and interviewing third parties with whom the said taxpayer did business; by consulting public and private records reflecting the said taxpayer's income; and by interviewing third persons having knowledge of the said taxpayer's financial condition. That based on the aforesaid investigation, the complainant has personal knowledge that on or about the 16th day of April, 1957, at Kansas City, Missouri, in the Western District of Missouri, Max Jaben did unlawfully and wilfully attempt to evade and defeat the income taxes due and owing by him to the United States of America for the calendar year 1956, by filing and causing to be filed with the District Director of Internal Revenue for the District of Kansas City, Missouri, at Kansas City, Missouri, a false and fraudulent income tax return, wherein he stated that his taxable income for the calendar year 1956 was $17,665.31, and that the amount of tax due and owing thereon was the sum of $6,017.32, when in fact his taxable income for the said calendar year was the sum of $40,001.76 upon which said taxable income he owed to the United States of America an income tax of $14,562.99. [Signed] David A. Thompson Special Agent Internal Revenue Service Kansas City, Missouri. Petitioner argues that the complaint is basically indistinguishable from that which the Court found wanting in Giordenello v. United States, 357 U. S. 480. The Giordenello complaint read in relevant part: The undersigned complaint being duly sworn states: That on or about January 26, 1956, at Houston. Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code. And the complainant further states that he believes that ___________ ____________ [4] are material witnesses in relation to this charge. The complaints there and here are materially distinguishable. Information in a complaint alleging the commission of a crime falls into two categories: (1) that information which, if true, would directly indicate commission of the crime charged, and (2) that which relates to the source of the directly incriminating information. The Giordenello complaint gave no source information whatsoever. Its directly incriminating information consisted merely of an allegation in the words of the statute, and even then incomplete, supplemented by on or about January 26, 1956, at Houston. If the Jaben complaint were as barren, it would have stated simply that on or about April 16, 1957, at Kansas City, Missouri, Jaben willfully filed a false income tax return. In fact, it gave dollars-and-cents figures for the amounts which allegedly should have been returned and the amounts actually returned. As to sources, the affiant indicated that he, in his official capacity, had personally conducted an investigation in the course of which he had examined the taxpayer's returns for 1956 and other years, interviewed third persons with whom the taxpayer did business and others having knowledge of his financial condition, and consulted public and private records reflecting the taxpayer's income; and that the conclusion that Jaben had committed the offense was based upon this investigation. Beyond the substance of the complaint there is a material distinction in the nature of the offense charged. Some offenses are subject to putative establishment by blunt and concise factual allegations, e. g.,  A saw narcotics in B 's possession, whereas  A saw B file a false tax return does not mean very much in a tax evasion case. Establishment of grounds for belief that the offense of tax evasion has been committed often requires a reconstruction of the taxpayer's income from many individually unrevealing facts which are not susceptible of a concise statement in a complaint. Furthermore, unlike narcotics informants, for example, whose credibility may often be suspect, the sources in this tax evasion case are much less likely to produce false or untrustworthy information. Thus, whereas some supporting information concerning the credibility of informants in narcotics cases or other common garden varieties of crime may be required, such information is not so necessary in the context of the case before us. Giordenello v. United States, supra , and Aguilar v. Texas, 378 U. S. 108, established that a magistrate is intended to make a neutral judgment that resort to further criminal process is justified. A complaint must provide a foundation for that judgment. It must provide the affiant's answer to the magistrate's hypothetical question, What makes you think that the defendant committed the offense charged? This does not reflect a requirement that the Commissioner ignore the credibility of the complaining witness. There is a difference between dis-believing the affiant and requiring him to indicate some basis for his allegations. Obviously any reliance upon factual allegations necessarily entails some degree of reliance upon the credibility of the source. See, e. g., Johnson v. United States, 333 U. S. 10, 13. Nor does it indicate that each factual allegation which the affiant puts forth must be independently documented, or that each and every fact which contributed to his conclusions be spelled out in the complaint. Compare United States v. Ventresca, 380 U. S. 102. It simply requires that enough information be presented to the Commissioner to enable him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process. In this instance the issue of probable cause comes down to the adequacy of the basis given for the allegation that petitioner's income was $40,001.76 instead of the $17,665.31 he had reported. This is not the type of fact that can be physically observed. The amount of petitioner's income could only be determined by examining records and interviewing third persons familiar with petitioner's financial condition. Compare Holland v. United States, 348 U. S. 121. Here the affiant, a Special Agent of the Internal Revenue Service, swore that he had conducted just such an investigation and thereafter swore that he had personal knowledge as to petitioner's actual income. In such circumstances, the magistrate would be justified in accepting the agent's judgment of what he saw without requiring him to bring the records and persons to court, to list and total the items of unreported income or to otherwise explain how petitioner's actual income was calculated. We conclude that the challenged count of this indictment is not time-barred. Affirmed.",The Jaben complaint read as follows:
+105,108380,1,1,"The Rhode Island Salary Supplement Act [1] was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers. In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity. [2] The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use only teaching materials which are used in the public schools. Finally, any teacher applying for a salary supplement must first agree in writing not to teach a course in religion for so long as or during such time as he or she receives any salary supplements under the Act. Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance. A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. It found that Rhode Island's nonpublic elementary schools accommodated approximately 25% of the State's pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools. The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was an integral part of the religious mission of the Catholic Church. The District Court concluded that the Act violated the Establishment Clause, holding that it fostered excessive entanglement between government and religion. In addition two judges thought that the Act had the impermissible effect of giving significant aid to a religious enterprise. 316 F. Supp. 112. We affirm. The Pennsylvania Statute Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act [3] was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of those purely secular educational objectives achieved through nonpublic education . . . . The statute authorizes appellee state Superintendent of Public Instruction to purchase specified secular educational services from nonpublic schools. Under the contracts authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials. A school seeking reimbursement must maintain prescribed accounting procedures that identify the separate cost of the secular educational service. These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes. There are several significant statutory restrictions on state aid. Reimbursement is limited to courses presented in the curricula of the public schools. It is further limited solely to courses in the following secular subjects: mathematics, modern foreign languages, [4] physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains any subject matter expressing religious teaching, or the morals or forms of worship of any sect. The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils—more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church. Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are associations of persons resident in Pennsylvania declaring belief in the separation of church and state; individual plaintiffs-appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased a ticket at a race track and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants-appellees. A three-judge federal court was convened pursuant to 28 U. S. C. §§ 2281, 2284. The District Court held that the individual plaintiffs-appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs-appellants were denied standing under Flast v. Cohen, 392 U. S. 83, 99, 101 (1968). The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief. [5] 310 F. Supp. 35. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse.",The Rhode Island Statute
+106,86460,1,1,"They had employed Harnden to collect checks and drafts on the banks in the city of New York, and to bring home the proceeds in specie. He had no interest in the money, or in the contract with the respondents for its conveyance, except what was derived from the possession in the execution of his agency. The general property remained in the libellants, the real owners, subject at all times to their direction and control; and any loss that might happen to it in the course of the shipment would fall upon them. This would be clearly so if Harnden is to be regarded as a private agent; and even if in the light of a common carrier of this description of goods, the result would not be changed, so far as relates to the right of property. The carrier has a lien on the goods for his freight, if not paid in advance; but subject to this claim he can set up no right of property or of possession against the general owners. (Story on Bailments, § 93, g.) The carrier, says Buller, J., is considered in law the agent or servant of the owner, and the possession of the agent is the possession of the owner. (4 T.R. 490.) Under these circumstances, the contract between Harnden and the respondents for the transportation of the specie was, in contemplation of law, a contract between them and the libellants; and although made in his own name, and without disclosing his employers at the time, a suit may be maintained directly upon it in their names. It would be otherwise, in a court of law, if the contract was under seal. (Story on Agency, § 160.) It rested in parol, in this case, at the time of the loss. In Sims v. Bond, 5 Barn. & Adol. 393, the court observed that it was a well-established rule of law, that, where a contract, not under seal, is made by an agent in his own name for an undisclosed principal, either the agent or the principal may sue on it; the defendant in the latter case being entitled to be placed in the same situation, at the time of the disclosure of the real principal, as if the agent had been the contracting party. The same doctrine is affirmed by Baron Parke, in delivering the judgment of the court in Higgins v. Senior, 8 Mees. & Wels. 834, 844, in the Court of Exchequer. In that case, it was held that the suit might be maintained on the contract, either in the name of the principal or of the agent, and that, too, although required to be in writing by the statute of frauds. The rule is, also, equally well established in this country, as may be seen by a reference to the cases of Beebee v. Robert, 12 Wend. 413, Taintor v. Prendergast, 3 Hill, 72, and Sanderson v. Lamberton, 6 Binney, 129. The last case is like the one before us. It was an action by the owners directly upon the sub-contract made by the first with the second carrier for the conveyance of the goods, in whose hands they were lost. The cases are numerous in which the general owner has sustained an action of tort against the wrong-doer for injuries to the property while in the hands of the bailee. The above cases show that it may be equally well sustained for a breach of contract entered into between the bailee and a third person. The court look to the substantial parties in interest, with a view to avoid circuity of action; saving, at the same time, to the defendant all the rights belonging to him if the suit had been in the name of the agent. We think, therefore, that the action was properly brought in the name of the libellants. II. The next question is as to the duties and liabilities of the respondents, as carriers, upon their contract with Harnden. As the libellants claim through it, they must affirm its provisions, so far as they may be consistent with law. The general liability of the carrier, independently of any special agreement, is familiar. He is chargeable as an insurer of the goods, and accountable for any damage or loss that may happen to them in the course of the conveyance, unless arising from inevitable accident, — in other words, the act of God or the public enemy. The liability of the respondents, therefore, would be undoubted, were it not for the special agreement under which the goods were shipped. The question is, to what extent has this agreement qualified the common law liability? We lay out of the case the notices published by the respondents, seeking to limit their responsibility, because, — 1. The carrier cannot in this way exonerate himself from duties which the law has annexed to his employment; and, 2. The special agreement with Harnden is quite as comprehensive in restricting their obligation as any of the published notices. A question has been made, whether it is competent for the carrier to restrict his obligation even by a special agreement. It was very fully considered in the case of Gould and others v. Hill and others, 2 Hill, 623, and the conclusion arrived at that he could not. See also Hollister v. Nowlen, 19 Wend. 240, and Cole v. Goodwin, ib. 272, 282. As the extraordinary duties annexed to his employment concern only, in the particular instance, the parties to the transaction, involving simply rights of property, — the safe custody and delivery of the goods, — we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it than exist in the case of any other insurer of goods, to which his obligation in analogous; and which depends altogether upon the contract between the parties. The owner, by entering into the contract, virtually agrees, that, in respect to the particular transaction, the carrier is not to be regarded as in the exercise of his public employment; but as a private person, who incurs no responsibility beyond that of an ordinary bailee for hire, and answerable only for misconduct or negligence. The right thus to restrict the obligation is admitted in a large class of cases founded on bills of lading and charter-parties, where the exception to the common law liability (other than that of inevitable accident) has been, from time to time, enlarged, and the risk diminished, by the express stipulation of the parties. The right of the carrier thus to limit his liability in the shipment of goods has, we think, never been doubted. But admitting the right thus to restrict his obligation, it by no means follows that he can do so by any act of his own. He is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public, limiting his obligation, which may or may not be assented to. He is bound to receive and carry all the goods offered for transportation, subject to all the responsibilities incident to his employment, and is liable to an action in case of refusal. And we agree with the court in the case of Hollister v. Nowlen, that, if any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualification. The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence; but should be specific and certain, leaving no room for controversy between the parties. The special agreement, in this case, under which the goods were shipped, provided that they should be conveyed at the risk of Harnden; and that the respondents were not to be accountable to him or to his employers, in any event, for loss or damage. The language is general and broad, and might very well comprehend every description of risk incident to the shipment. But we think it would be going farther than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for wilful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands. This is the utmost effect that was given to a general notice, both in England and in this country, when allowed to restrict the carrier's liability, although as broad and absolute in its terms as the special agreement before us (Story on Bailm. § 570); nor was it allowed to exempt him from accountability for losses occasioned by a defect in the vehicle, or mode of conveyance used in the transportation. (13 Wend. 611, 627, 628.) Although he was allowed to exempt himself from losses arising out of events and accidents against which he was a sort of insurer, yet, inasmuch as he had undertaken to carry the goods from one place to another, he was deemed to have incurred the same degree of responsibility as that which attaches to a private person, engaged casually in the like occupation, and was, therefore, bound to use ordinary care in the custody of the goods, and in their delivery, and to provide proper vehicles and means of conveyance for their transportation. This rule, we think, should govern the construction of the agreement in question. If it is competent at all for the carrier to stipulate for the gross negligence of himself, and his servants or agents, in the transportation of the goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties. The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care, or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such restriction. We have accordingly looked into the proofs in the case with a view to the question. There were on board the vessel one hundred and fifty bales of cotton, part of which was stowed away on and along side of the boiler-deck, and around the steam-chimney, extending to within a foot or a foot and a half of the casing of the same, which was made of pine, and was itself but a few inches from the chimney. The cotton around the chimney extended from the boiler to within a foot of the upper deck. The fire broke out in the cotton next the steam-chimney, between the two decks, at about half past seven o'clock in the evening, and was discovered before it had made much progress. If the vessel had been stopped, a few buckets of water, in all probability, would have extinguished it. No effort seems to have been made to stop her, but, instead thereof, the wheel was put hard a-port, for the purpose of heading her to the land. In this act, one of the wheel-ropes parted, being either burnt or broken, in consequence of which the hands had no longer any control of the boat. Some of them then resorted to the fire-engine, but it was found to be stowed away in one place in the vessel, and the hose belonging to it, and without which it was useless, in another, and which was inaccessible in consequence of the fire. They then sought the fire-buckets. Two or three only, in all, could be found, and but one of them properly prepared and fitted with heaving-lines; and, in the emergency, the specie-boxes were emptied, and used to carry water. The act of Congress (5 Statutes at Large, 306, § 9) made it the duty, at the time, of these respondents to provide, as a part of the necessary furniture of the vessel, a suction-hose and fire-engine, and hose suitable to be worked in case of fire, and to carry the same on every trip, in good order; and further provided, that iron rods or chains should be employed and used in the navigation of steamboats, instead of wheel or tiller ropes. This latter provision was wholly disregarded on board the vessel during the trip in question; and the former also, as we have seen, for all practical or useful purposes. We think there was great want of care, and which amounted to gross negligence, on the part of the respondents, in the stowage of the cotton; especially, regarding its exposure to fire from the condition of the covering of the boiler-deck, and the casing of the steam-chimney. The former had been on fire on the previous trip, and a box of goods partly consumed. Also, for the want of proper furniture and equipments of the vessel, as required by the act of Congress, as well as by the most prudential considerations. It is, indeed, difficult, on studying the facts, to resist the conclusion, that, if there had been no fault on board in the particulars mentioned, and the emergency had been met by the officers and crew with ordinary firmness and deliberation, the terrible calamity that befell the vessel and nearly all on board would have been arrested. We are of opinion, therefore, that the respondents are liable for the loss of the specie, notwithstanding the special agreement under which it was shipped.",As to the right of the libellants to maintain the suit.
+107,86460,1,2,"By the second section of the third article of the Constitution, it is declared that the judicial power shall extend to all cases of admiralty and maritime jurisdiction. The ground of objection to the jurisdiction, in this case, rests upon the assumption, that this provision had reference to the jurisdiction of the High Court of Admiralty in England, as restrained by the statutes of 13 and 15 Richard II., or as exercised in the colonies by the courts of vice-admiralty, which, as their decisions were subject to the appellate power of the High Court at home, with few exceptions, and those by act of Parliament, were confined within the same limits. This is the foundation of the argument in support of the restricted jurisdiction, and which, it is claimed, excludes the contract in question. Under the statutes of Richard, as expounded by the common law courts, in cases of prohibition against the admiralty, its jurisdiction over contracts was confined to seamen's wages, bottomry bonds, and contracts made and to be executed on the high seas. If made on land, or within the body of an English county, though to be executed, or the service to be performed, upon the sea, or if made upon the sea, but to be executed upon the land, in either case it was held by the common law courts that the admiralty had no jurisdiction. In the first, because the place where the contract was made, and in the second, where it was to be performed, was within the body of the county, and, of course, within the cognizance of the common law courts, which excluded the admiralty. It is not to be denied, therefore, if the grant of power in the Constitution had reference to the jurisdiction of the admiralty in England at the time, and is to be governed by it, that the present suit cannot be maintained, as the District Court of Rhode Island had no jurisdiction. But in answer to this view, and to the ground on which it rests, we have been referred to the practical construction that has been given to the Constitution by Congress in the Judiciary Act of 1789, which established the courts of admiralty, and assigned to them their jurisdiction; and also to the adjudications of this, and of the Circuit and District Courts, in admiralty cases, which not only reject the very limited jurisdiction in England, but assert and uphold a jurisdiction much more comprehensive, both in respect to contracts and torts, and which has been exercised ever since the establishment of these courts. And it is insisted, that, whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed. We are inclined to concur in this view, and shall proceed to state some of the grounds in support of it. By the ninth section of the Judiciary Act of 1789, which established the admiralty courts, it is declared that the District Courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. The High Court of Admiralty in England never had original jurisdiction of causes arising under the revenue laws, or laws concerning the navigation and trade of the kingdom. They belong, exclusively, to the jurisdiction of the Court of Exchequer, in which the proceedings are conducted as at common law. That court exercises an appellate power ever the decisions of the vice-admiralty courts in revenue cases in the colonies; even that power was doubted, till affirmed by the Court of Delegates, on an appeal from a decision of the vice-admiralty court in South Carolina, in 1754. Since then, it has been exercised; but this is the extent of its power over revenue cases, or cases arising under the navigation laws. Thus it will be seen that a very wide departure from the English limit of admiralty jurisdiction took place within two years after the adoption of the Constitution; and that, too, by the Congress called upon to expound the grant with a view to the establishment of the proper tribunals to carry it into execution. The constitutionality of this act of Congress, and, of course, the true construction of the grant in the Constitution, became a subject of discussion before this court, at a very early day, on several occasions, and received its particular consideration. The first case that involved the question was the case of The Vengeance, in 1796, nine years after the adoption of the Constitution. (3 Dallas, 297.) The vessel was seized by the marshal in the port of New York, as forfeited under an act of Congress, prohibiting the exportation of arms, and libelled and condemned in the District Court. On appeal, the Circuit Court reversed the decree and dismissed the proceedings; upon which an appeal was taken to this court. On the argument, the Attorney-General took two grounds for reversing the decree. The second was, that, even if the proceeding could be considered a civil suit, it was not a suit of admiralty and maritime jurisdiction; and therefore the Circuit Court should have remanded it to the District Court, to be tried before a jury. He referred to the ninth section of the Judiciary Act, which declared, that the trials of issues of fact in the District Courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury, and insisted, that a libel for a violation of the navigation laws was not a civil suit of admiralty jurisdiction; that the principles regulating the admiralty jurisdiction in this country must be such as were consistent with the common law of England at the period of the Revolution; that there admiralty causes must be causes arising wholly upon the sea, and not within the precincts of any county; that the act of exporting arms must have commenced on land, and if done part on land and part on the sea, the authorities held that the admiralty had no jurisdiction. The court took time to consider the question, and on a subsequent day gave judgment, holding that the suit was a civil cause of admiralty and maritime jurisdiction, and therefore rightfully tried by the District Court without a jury; that the case was one coming within the general admiralty powers of the court; and, for a like reason, it was held that the appeal to the Circuit Court was regular, and properly disposed of. It will be observed that the seizure, in this case, was in the port of New York, and within the body of the county, which extends to Sandy Hook. The next case that came before the court was the case of The Schooner Sally, in 1805, which arose in the Maryland district, and involved the same question as in the case of the Vengeance, and was decided in the same way. But the most important one, as it respects the question before us, was the case of The Schooner Betsey, in 1808 (4 Cranch, 443). This vessel was seized for a violation of the non-intercourse act between the United States and St. Domingo, in the port of Alexandria, in this District. She was condemned in the District Court; but on appeal the Circuit Court reversed the decree, from which an appeal was taken to this court. Mr. Lee, who had argued the case of the Vengeance, appeared for the claimant, and requested permission to argue the point again more at large, namely, whether the case was one of admiralty and maritime jurisdiction; and in this argument will be found the ground and substance of all the arguments which have been since urged in favor of the limited construction of the admiralty power under the Constitution. He referred to the terms of the grant in the Constitution, and denied that Congress could make cases of admiralty jurisdiction; nor could it confer on the federal courts jurisdiction of a case which was not of admiralty and maritime cognizance at the time of the adoption of the Constitution. That the seizure of a vessel within the body of a county, for a breach of a municipal law of trade, was not of admiralty cognizance, — that it was never so considered in England, — that all seizures in that country for a violation of the revenue and navigation acts were tried by a jury, in the Court of Exchequer, according to the course of the common law, — that the High Court of Admiralty in England exercised no jurisdiction in revenue cases, — and insisted, that if the ninth section of the Judiciary Act was to be construed as including revenue cases and seizures under the navigation acts as civil causes of admiralty and maritime jurisdiction, the act was repugnant to the Constitution, and void. The court rejected the argument, and held that the case was not distinguishable from that of the Vengeance, and which they had already determined belonged properly to the jurisdiction of the admiralty. They observed, that it was the place of seizure, and not the place of committing the offence, that determined the jurisdiction, and regarded it as clear that Congress meant to discriminate between seizures on waters navigable from the sea, and seizures on land or on waters not navigable, and to class the former among the civil causes of admiralty and maritime jurisdiction. Similar objections were taken to the jurisdiction of the court in the cases of The Samuel and The Octavia (1 Wheat. 9 and 20), and received a similar answer from the court. We have been more particular in referring to these cases, and to the arguments of counsel, because they show, — 1. That the arguments used in the present case against the jurisdiction, and in favor of restricting it to the common law limit in England at the Revolution, have been heretofore presented to the court, on several occasions, and at a very early day, and on each, after full consideration, were rejected, and the judgment of the court placed upon grounds altogether inconsistent with that mode of construing the Constitution; and, 2. They affirm the practical construction given to the Constitution by Congress in the act of 1789, which, we have seen, assigns to the District Courts, in terms, a vast field of admiralty jurisdiction unknown to that court in England. The jurisdiction in all these cases is maintained on the broad ground, that the subject-matter was of admiralty cognizance, as the causes of action arose out of transactions that had occurred upon the high seas, or within the ebb and flow of the tide; expressly rejecting the common law test, which was attempted to be applied, namely, that they arose within the body of a county, and therefore out of the limits of the admiralty. In answer to an argument that was pressed, that the offence must have been committed upon land, such as in case of an exportation of prohibited goods, the court say that it is the place of seizure, and not the place of committing the offence, that decides the jurisdiction, — a seizure upon the high seas or within tide-waters, although the tide-waters may be within the body of a county. All the cases thus arising under the revenue and navigation laws were held to be civil causes of admiralty and maritime jurisdiction within the words of the Constitution, and, as such, were properly assigned to the District Court, in the act of 1789, as part of its admiralty jurisdiction. They were so regarded, as well in respect to the subject-matter as in respect to the place where the causes of action had arisen. The clause in the act of 1789, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it, was referred to on the argument in support of the restricted jurisdiction. And it was insisted that the remedy is thus saved to both parties, plaintiff and defendant, and is, in effect, an exception from the admiralty power conferred upon the District Courts of all causes in which a remedy might be had at common law. The language is certainly peculiar, and unfortunate, if this was the object of the clause; and besides, the construction would exclude from the District Court cases which the sternest opponent of the admiralty will admit properly belonged to it. The common law courts exercise a concurrent jurisdiction in nearly all the cases of admiralty cognizance, whether of tort or contract (with the exception of proceedings in rem), which, upon the construction contended for, would be transferred from the admiralty to the exclusive cognizance of these courts. The meaning of the clause we think apparent. By the Constitution, the entire admiralty power of the country is lodged in the federal judiciary, and Congress intended by the ninth section to invest the District Courts with this power, as courts of original jurisdiction. The term exclusive original cognizance is used for this purpose, and is intended to be exclusive of the State, as well as of the other federal courts. The saving clause was inserted, probably, from abundant caution, lest the exclusive terms in which the power is conferred on the District Courts might be deemed to have taken away the concurrent remedy which had before existed. This leaves the concurrent power where it stood at common law. The clause has no application to seizures arising under the revenue laws, or laws of navigation, as these belong exclusively to the District Courts. (Slocum v. Mayberry, 2 Wheat. 1; Gelston v. Hoyt, 3 ib. 246.) If the thing seized is acquitted, then the owner may prosecute the wrong-doer for the taking and detention, either in admiralty or at common law. The remedy is concurrent. (Ibid.) 2. Another class of cases in which jurisdiction has always been exercised by the admiralty courts in this country, but which is denied in England, are suits by ship-carpenters and material men, for repairs and necessaries, made and furnished to ships, whether foreign or in the port of a State to which they do not belong, or in the home port, if the municipal laws of the State give a lien for the work and materials. (1 Peters's Adm. R. 227, 233, note; Bee's Adm. R. 106; 4 Wash. C.C.R. 453; 1 Payne, 620; Gilpin, D.C.R. 203, 473; 1 Wheat. 96; 4 ib. 438; 9 ib. 409; 10 ib. 428; 7 Peters, 324; 11 ib. 175.) The principle stated in the case of The General Smith, 4 Wheat. 438, and which has been repeated in all the subsequent cases, is, that where repairs have been made or necessaries furnished to a foreign ship, or to a ship, in the ports of a State to which she does not belong, the general maritime law gives a lien on the ship as security, and the party may maintain a suit in admiralty to enforce his right. But as to repairs or necessaries in the port or State to which the ship belongs, the case is governed altogether by the local law of the State, and no lien is implied unless recognized by that law. But if the local law gives the lien, it may be enforced in admiralty. The jurisdiction in these cases, as will be seen from the authorities referred to, appears to have been exercised by the District Courts from the time of their earliest organization, and which was affirmed by this court the first time the question came before it. The District Court of South Carolina, in 1796, in the case of North and Vesey v. The Brig Eagle, Bee's R. 79, maintained a libel for supplies furnished a foreign vessel, and considered the question as a very clear one at that day. See also Pritchard v. The Lady Horatia, p. 169, decided in 1800. Judge Winchester, district judge of the Maryland district; maintained the jurisdiction, in a most able opinion, at a very early day. (1 Peters's Adm. R. 233, note.) The same opinion was also entertained by Judge Peters, of the Pennsylvania district. (1 Peters, 227.) Since then, the jurisdiction appears to have been undisputed. We refer to these opinions, not so much for the authority they afford, though entitled to the highest respect as such, but as evidence of the line of jurisdiction exercised, at that early day, by learned admiralty lawyers, in direct contradiction to the theory, that the constitutional limit is to be determined by the jurisdiction in England. They are the opinions of men of the Revolution, engaged in administering admiralty law as understood in the country soon after the adoption of the Constitution, fresh from the discussions which every provision and grant of power in that instrument had undergone. The opinions may be well referred to as affording the highest evidence of the law on this subject in their day. 3. Another class of cases in which jurisdiction is entertained by the courts in this country on contracts, but which is denied in England, are suits for pilotage. (10 Peters, 108). It is denied in England on the ground of locality, the contract having been made within the body of a county. We shall pursue the examination no farther. The authorities, we think are decisive against expounding the constitutional grant according to the jurisdiction of the English admiralty, and in favor of a line of jurisdiction which fully embraces the contract in question. Before jurisdiction can be withheld in the case, the court must not only retrace its steps, and take back several of its decided cases, but must also disapprove of the ground which has heretofore been taken, and maintained in every case, as the proper test of admiralty jurisdiction. Some question was made on the argument founded on the circumstance, that this was a suit in personam. The answer is, if the cause is a maritime cause, subject to admiralty cognizance, jurisdiction is complete over the person, as well as over the ship; it must, in its nature, be complete, for it cannot be confined to one of the remedies on the contract, when the contract itself is within its cognizance. On looking into the several cases in admiralty which have come before this court, and in which its jurisdiction was involved or came under its observation, it will be found that the inquiry has been, not into the jurisdiction of the court of admiralty in England, but into the nature and subject-matter of the contract, — whether it was a maritime contract, and the service a maritime service, to be performed upon the sea, or upon waters within the ebb and flow of the tide. And, again, whether the service was to be substantially performed upon the sea, or tide-waters, although it had commenced and had terminated beyond the reach of the tide; if it was, then jurisdiction has always been maintained. But if the substantial part of the service under the contract is to be performed beyond tide-waters, or if the contract relates exclusively to the interior navigation and trade of a State, jurisdiction is disclaimed. (10 Wheat. 428; 7 Peters, 324; 11 ib. 175; 12 ib. 72; 5 Howard, 463.) The exclusive jurisdiction in admiralty cases was conferred on the national government, as closely connected with the grant of the commercial power. It is a maritime court instituted for the purpose of administering the law of the seas. There seems to be ground, therefore, for restraining its jurisdiction, in some measure, within the limit of the grant of the commercial power, which would confine it, in cases of contracts, to those concerning the navigation and trade of the country upon the high seas and tide-waters with foreign countries, and among the several States. Contracts growing out of the purely internal commerce of the State, as well as commerce beyond tide-waters, are generally domestic in their origin and operation, and could scarcely have been intended to be drawn within the cognizance of the federal courts. Upon the whole, without pursuing the examination farther, we are satisfied that the decision of the Circuit Court below was correct, and that its decree should be affirmed.",The remaining question is as to the jurisdiction of the court.
+108,87632,1,1,"1st. Because it disposes of the entire merits , and leaves nothing but a mere accounting. 2d. Because the court below has power to render and enforce such a decree (and the practice of rendering and enforcing such decrees has become very general), and unless an appeal be allowed therefrom, the right of appeal to this court is virtually annulled in this class of cases, where the decree is for the complainant. 3d. Because the accounting in such cases is necessarily tedious and expensive, and should therefore be postponed until the merits are finally disposed of; for if the decree be reversed the accounting becomes a needless waste of time and money, and even if it be modified, as to the nature or extent of the patent or of the infringement of same, such accounting becomes almost equally useless.","An appeal from such a decree as this is, should be allowed:"
+109,104841,1,2,"In order for the sales here involved to come under the Clayton Act, as amended by the Robinson-Patman Act, they must have been made in interstate commerce. [5] The Commission and the court below agree that the sales were so made. 41 F. T. C. 263, 271, 173 F. 2d 210, 213-214. Facts determining this were found by the Commission as follows: Petitioner is an Indiana corporation, whose principal office is in Chicago. Its gasoline is obtained from fields in Kansas, Oklahoma, Texas and Wyoming. Its refining plant is at Whiting, Indiana. It distributes its products in 14 middle western states, including Michigan. The gasoline sold by it in the Detroit, Michigan, area, and involved in this case, is carried for petitioner by tankers on the Great Lakes from Indiana to petitioner's marine terminal at River Rouge, Michigan. Enough gasoline is accumulated there during each navigation season so that a winter's supply is available from the terminal. The gasoline remains for varying periods at the terminal or in nearby bulk storage stations, and while there it is under the ownership of petitioner and en route from petitioner's refinery in Indiana to its market in Michigan. Although the gasoline was not brought to River Rouge pursuant to orders already taken, the demands of the Michigan territory were fairly constant, and the petitioner's customers' demands could be accurately estimated, so the flow of the stream of commerce kept surging from Whiting to Detroit. 173 F. 2d at 213-214. Gasoline delivered to customers in Detroit, upon individual orders for it, is taken from the gasoline at the terminal in interstate commerce en route for delivery in that area. Such sales are well within the jurisdictional requirements of the Act. Any other conclusion would fall short of the recognized purpose of the Robinson-Patman Act to reach the operations of large interstate businesses in competition with small local concerns. Such temporary storage of the gasoline as occurs within the Detroit area does not deprive the gasoline of its interstate character. Stafford v. Wallace, 258 U. S. 495. Compare Walling v. Jacksonville Paper Co., 317 U. S. 564, 570, with Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U. S. 257, 268. [6] III. THERE SHOULD BE A FINDING AS TO WHETHER OR NOT PETITIONER'S PRICE REDUCTION WAS MADE IN GOOD FAITH TO MEET A LAWFUL EQUALLY LOW PRICE OF A COMPETITOR. Petitioner presented evidence tending to prove that its tank-car price was made to each jobber in order to retain that jobber as a customer and in good faith to meet a lawful and equally low price of a competitor. Petitioner sought to show that it succeeded in retaining these customers, although the tank-car price which it offered them merely approached or matched, and did not undercut, the lower prices offered them by several competitors of petitioner. The trial examiner made findings on the point [7] but the Commission declined to do so, saying: Based on the record in this case the Commission concludes as a matter of law that it is not material whether the discriminations in price granted by the respondent to the said four dealers were made to meet equally low prices of competitors. The Commission further concludes as a matter of law that it is unnecessary for the Commission to determine whether the alleged competitive prices were in fact available or involved gasoline of like grade or quality or of equal public acceptance. Accordingly the Commission does not attempt to find the facts regarding those matters because, even though the lower prices in question may have been made by respondent in good faith to meet the lower prices of competitors, this does not constitute a defense in the face of affirmative proof that the effect of the discrimination was to injure, destroy and prevent competition with the retail stations operated by the said named dealers and with stations operated by their retailer-customers. 41 F. T. C. 263, 281-282. The court below affirmed the Commission's position. [8] There is no doubt that under the Clayton Act, before its amendment by the Robinson-Patman Act, this evidence would have been material and, if accepted, would have established a complete defense to the charge of unlawful discrimination. At that time the material provisions of § 2 were as follows: SEC. 2. That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly to discriminate in price between different purchasers of commodities . . . where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent discrimination in price between purchasers of commodities on account of differences in the grade, quality, or quantity of the commodity sold, or that makes only due allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities made in good faith to meet competition: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade. (Emphasis added within the first proviso.) 38 Stat. 730-731, 15 U. S. C. (1934 ed.) § 13. The question before us, therefore, is whether the amendments made by the Robinson-Patman Act deprived those facts of their previously recognized effectiveness as a defense. The material provisions of § 2, as amended, are quoted below, showing in italics those clauses which bear upon the proviso before us. The modified provisions are distributed between the newly created subsections (a) and (b). These must be read together and in relation to the provisions they supersede. The original phrase that nothing herein contained shall prevent is still used to introduce each of the defenses. The defense relating to the meeting of the price of a competitor appears only in subsection (b). There it is applied to discriminations in services or facilities as well as to discriminations in price, which alone are expressly condemned in subsection (a). In its opinion in the instant case, the Commission recognizes that it is an absolute defense to a charge of price discrimination for a seller to prove, under § 2 (a), that its price differential makes only due allowances for differences in cost or for price changes made in response to changing market conditions. 41 F. T. C. at 283. Each of these three defenses is introduced by the same phrase nothing . . . shall prevent, and all are embraced in the same word justification in the first sentence of § 2 (b). It is natural, therefore, to conclude that each of these defenses is entitled to the same effect, without regard to whether there also appears an affirmative showing of actual or potential injury to competition at the same or a lower level traceable to the price differential made by the seller. The Commission says, however, that the proviso in § 2 (b) as to a seller meeting in good faith a lower competitive price is not an absolute defense if an injury to competition may result from such price reduction. We find no basis for such a distinction between the defenses in § 2 (a) and (b). The defense in subsection (b), now before us, is limited to a price reduction made to meet in good faith an equally low price of a competitor. It thus eliminates certain difficulties which arose under the original Clayton Act. For example, it omits reference to discriminations in price in the same or different communities . . . and it thus restricts the proviso to price differential occurring in actual competition. It also excludes reductions which undercut the lower price of a competitor. None of these changes, however, cut into the actual core of the defense. That still consists of the provision that wherever a lawful lower price of a competitor threatens to deprive a seller of a customer, the seller, to retain that customer, may in good faith meet that lower price. Actual competition, at least in this elemental form, is thus preserved. Subsections 2 (a) and (b), as amended, are as follows: SEC. 2. (a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differential which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered:. . . And provided further, That nothing herein contained shall prevent price changes from time to time . . . in response to changing conditions affecting the market for or the marketability of the goods concerned . . . . (b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.  (Emphasis added in part.) 49 Stat. 1526, 15 U. S. C. § 13 (a) and (b). This right of a seller, under § 2 (b), to meet in good faith an equally low price of a competitor has been considered here before. Both in Corn Products Refining Co. v. Federal Trade Comm'n, 324 U. S. 726, and in Federal Trade Comm'n v. Staley Mfg. Co., 324 U. S. 746, evidence in support of this defense was reviewed at length. There would have been no occasion thus to review it under the theory now contended for by the Commission. While this Court did not sustain the seller's defense in either case, it did unquestionably recognize the relevance of the evidence in support of that defense. The decision in each case was based upon the insufficiency of the seller's evidence to establish its defense, not upon the inadequacy of its defense as a matter of law. [9] In the Corn Products case, supra, after recognizing that the seller had allowed differentials in price in favor of certain customers, this Court examined the evidence presented by the seller to show that such differentials were justified because made in good faith to meet equally low prices of a competitor. It then said: Examination of the testimony satisfies us, as it did the court below, that it was insufficient to sustain a finding that the lower prices allowed to favored customers were in fact made to meet competition. Hence petitioners failed to sustain the burden of showing that the price discriminations were granted for the purpose of meeting competition. (Emphasis added.) 324 U. S. at 741. [10] In the Staley case, supra, most of the Court's opinion is devoted to the consideration of the evidence introduced in support of the seller's defense under § 2 (b). The discussion proceeds upon the assumption, applicable here, that if a competitor's lower price is a lawful individual price offered to any of the seller's customers, then the seller is protected, under § 2 (b), in making a counteroffer provided the seller proves that its counteroffer is made to meet in good faith its competitor's equally low price. On the record in the Staley case, a majority of the Court of Appeals, in fact, declined to accept the findings of the Commission and decided in favor of the accused seller. [11] This Court, on review, reversed that judgment but emphatically recognized the availability of the seller's defense under § 2 (b) and the obligation of the Commission to make findings upon issues material to that defense. It said: Congress has left to the Commission the determination of fact in each case whether the person, charged with making discriminatory prices, acted in good faith to meet a competitor's equally low prices. The determination of this fact from the evidence is for the Commission. See Federal Trade Commission v. Pacific States Paper Trade Assn., 273 U. S. 52, 63; Federal Trade Commission v. Algoma Lumber Co., 291 U. S. 67, 73. In the present case, the Commission's finding that respondents' price discriminations were not made to meet a `lower' price and consequently were not in good faith, is amply supported by the record, and we think the Court of Appeals erred in setting aside this portion of the Commission's order to cease and desist. ..... In appraising the evidence, the Commission recognized that the statute does not place an impossible burden upon sellers, but it emphasized the good faith requirement of the statute, which places the burden of proving good faith on the seller, who has made the discriminatory prices. . . . . . . We agree with the Commission that the statute at least requires the seller, who has knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor. Nor was the Commission wrong in holding that respondents failed to meet this burden. 324 U. S. at 758, 759-760. See also, Federal Trade Comm'n v. Cement Institute, 333 U. S. 683, 721-726; Federal Trade Comm'n v. Morton Salt Co., 334 U. S. 37, 43; and United States v. United States Gypsum Co., 340 U. S. 76, 92. All that petitioner asks in the instant case is that its evidence be considered and that findings be made by the Commission as to the sufficiency of that evidence to support petitioner's defense under § 2 (b). In addition, there has been widespread understanding that, under the Robinson-Patman Act, it is a complete defense to a charge of price discrimination for the seller to show that its price differential has been made in good faith to meet a lawful and equally low price of a competitor. This understanding is reflected in actions and statements of members and counsel of the Federal Trade Commission. [12] Representatives of the Department of Justice have testified to the effectiveness and value of the defense under the Robinson-Patman Act. [13] We see no reason to depart now from that interpretation. [14] The heart of our national economic policy long has been faith in the value of competition. In the Sherman and Clayton Acts, as well as in the Robinson-Patman Act, Congress was dealing with competition, which it sought to protect, and monopoly, which it sought to prevent. Staley Mfg. Co. v. Federal Trade Comm'n, 135 F. 2d 453, 455. We need not now reconcile, in its entirely, the economic theory which underlies the Robinson-Patman Act with that of the Sherman and Clayton Acts. [15] It is enough to say that Congress did not seek by the Robinson-Patman Act either to abolish competition or so radically to curtail it that a seller would have no substantial right of self-defense against a price raid by a competitor. For example, if a large customer requests his seller to meet a temptingly lower price offered to him by one of his seller's competitors, the seller may well find it essential, as a matter of business survival, to meet that price rather than to lose the customer. It might be that this customer is the seller's only available market for the major portion of the seller's product, and that the loss of this customer would result in forcing a much higher unit cost and higher sales price upon the seller's other customers. There is nothing to show a congressional purpose, in such a situation, to compel the seller to choose only between ruinously cutting its prices to all its customers to match the price offered to one, or refusing to meet the competition and then ruinously raising its prices to its remaining customers to cover increased unit costs. There is, on the other hand, plain language and established practice which permits a seller, through § 2 (b), to retain a customer by realistically meeting in good faith the price offered to that customer, without necessarily changing the seller's price to its other customers. In a case where a seller sustains the burden of proof placed upon it to establish its defense under § 2 (b), we find no reason to destroy that defense indirectly, merely because it also appears that the beneficiaries of the seller's price reductions may derive a competitive advantage from them or may, in a natural course of events, reduce their own resale prices to their customers. It must have been obvious to Congress that any price reduction to any dealer may always affect competition at that dealer's level as well as at the dealer's resale level, whether or not the reduction to the dealer is discriminatory. Likewise, it must have been obvious to Congress that any price reductions initiated by a seller's competitor would, if not met by the seller, affect competition at the beneficiary's level or among the beneficiary's customers just as much as if those reductions had been met by the seller. The proviso in § 2 (b), as interpreted by the Commission, would not be available when there was or might be an injury to competition at a resale level. So interpreted, the proviso would have such little, if any, applicability as to be practically meaningless. We may, therefore, conclude that Congress meant to permit the natural consequences to follow the seller's action in meeting in good faith a lawful and equally low price of its competitor. In its argument here, the Commission suggests that there may be some situations in which it might recognize the proviso in § 2 (b) as a complete defense, even though the seller's differential in price did injure competition. In support of this, the Commission indicates that in each case it must weigh the potentially injurious effect of a seller's price reduction upon competition at all lower levels against its beneficial effect in permitting the seller to meet competition at its own level. In the absence of more explicit requirements and more specific standards of comparison than we have here, it is difficult to see how an injury to competition at a level below that of the seller can thus be balanced fairly against a justification for meeting the competition at the seller's level. We hesitate to accept § 2 (b) as establishing such a dubious defense. On the other hand, the proviso is readily understandable as simply continuing in effect a defense which is equally absolute, but more limited in scope than that which existed under § 2 of the original Clayton Act. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded to that court with instructions to remand it to the Federal Trade Commission to make findings in conformity with this opinion. It is so ordered. MR. JUSTICE MINTON took no part in the consideration or decision of this case.",the sales were made in interstate commerce.
+110,88349,1,1,"Affreightment contracts are of two kinds, and they differ from each other very widely in their nature as well as in their terms and legal effect. Charterers or freighters may become the owners for the voyage without any sale or purchase of the ship, as in cases where they hire the ship and have by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner retains the possession, command, and navigation of the ship and contracts for a specified voyage, as, for example, to carry a cargo from one port to another, the arrangement in contemplation of law is a mere affreightment sounding in contract and not a demise of the vessel, and the charterer or freighter is not clothed with the character or legal responsibility of ownership. [] Unless the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner retains the possession, command, and navigation of the ship, is the agent of the general owner and the mariners are regarded as in his employment and he is responsible for their conduct. [†] Courts of justice are not inclined to regard the contract as a demise of the ship if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer, but where the vessel herself is demised or let to hire, and the general owner parts with the possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and if need be he may appoint the master and ship the mariners, and he becomes responsible for their acts. [‡] On the first day of June, 1865, the assistant quartermaster of the United States, stationed at St. Louis, applied to the plaintiffs, as the owners of the steamboat Belle Peoria, to transport a cargo of military supplies from that port to Fort Berthold, but the owners of the steamboat declined on account of the lateness of the season. He then ordered them to prepare for the trip, and informed them that in case of refusal the steamboat would be impressed. They protested, but under the orders given got the boat in readiness, put the cargo on board, and on the 3d of June, 1865, left St. Louis for the place of destination where the steamboat arrived on the 22d of July following, when she discharged her cargo and on the 24th of the same month started down the river on her return trip. She proceeded for two days in safety, when a high wind sprung up, and in attempting to land she was blown ashore and grounded. All efforts to get her off proved unavailing, and believing it impossible to do so until a rise should occur in the river, the master, most of the other officers, and crew decided to return, leaving on board the mate, one engineer, and three watchmen to take care of the boat, aided by a military guard detailed and sent from Fort Rice by the officer in command at that post. Information that the steamboat was aground reached the owners at St. Louis on the 10th of August, 1865, but she remained aground until the 15th of April of the next year, when she was swept off by an ice-freshet in the river and totally destroyed. When the assistant quartermaster ordered the owners to prepare for the trip he fixed the per diem compensation of the boat at $272, which appears to have been satisfactory to the owners, as they were paid at that rate to the time they received information of the disaster, and they have presented no claim for any greater allowance for that period of time. They were also paid at the rate of $101 per day from the said 10th of August to the 30th of September in the same year, covering the period, as stated in the finding, that the mate, engineer, and the three watchmen remained on board after the master and the rest of the officers and crew returned. Vouchers were also issued to the plaintiffs at the rate of $80 per day from the 30th of September of the same year to the 30th of November following, but those vouchers have never been paid or recognized, and the plaintiffs sued the United States for the amount of those vouchers and for compensation for the use of the steamboat at the same rate from the time the last voucher was issued to the time when the steamboat was swept off from the place where she was grounded by the ice-freshet in the river and totally destroyed. Although the plaintiffs objected to the order of the quartermaster at the time it was given, still it is quite evident that they ultimately consented to perform the service as matter of contract, and that they were content to receive the per diem compensation fixed by the assistant quartermaster at the time he gave the order. Abundant confirmation of that view is found, if any be needed, in the fact that they voluntarily accepted the prescribed per diem compensation from the commencement of the trip to the 10th of August following, when they received information of the disaster, which was at the time when the master and all the steamboat's company, except the mate, one engineer, and three watchmen, returned to the port of departure, and that the plaintiffs make no claim for any additional compensation during that period. Compulsion is not set up by the plaintiffs, and, if it was, the theory could not be supported, as the jurisdiction of the Court of Claims does not extend to torts. They have also been paid for the value of the steamboat, and also a per diem compensation of $101 per day from the 10th of August to the 30th of September, which is the date when the mate, engineer, and the three watchmen also left the steamboat and returned to St. Louis. No additional compensation is claimed for that period, but they claim for the amount of the vouchers issued at the rate of $80 per day for the two months next succeeding that period, and at the same rate from the end of that period to the 15th of April in the following year, when the steamboat was swept off by the ice-freshet and was totally destroyed. Judgment was rendered for the claimants for certain moneys, not involved in this appeal, which were expended by them in efforts to save the steamboat, but the petition, so far as respects the per diem compensation, was dismissed, and the claimants appealed to this court. Throughout the litigation the plaintiffs have prosecuted their claim as a matter of contract, and it is quite clear that it could have no other foundation in the court where the suit was brought, and of course it must depend upon the proper application of the principles of commercial law to the facts of the case as found by the Court of Claims. By the terms of the contract, they were to carry the cargo of military supplies from the port of St. Louis up the Missouri River to Fort Berthold for $272 per day during the voyage, including the return trip as well as the trip to the place of destination, in full compensation for the entire services. By necessary implication the plaintiffs were to victual and man the steamboat and keep her in a seaworthy condition, and in contemplation of law they retained the possession, control, and navigation of the steamboat, as the master was one of their own selection and the crew were in their own employment, and they were responsible for their conduct. Steamers require fuel as a means of creating motive power, and it is quite obvious that it was the duty of the plaintiffs to supply the steamboat with fuel for that purpose as well as provisions for the officers and crew, and that the master was their agent and not the agent of the charterers. Well-founded doubts cannot be entertained upon that subject, and if those conclusions of fact are correct then it follows as a conclusion of law that the plaintiffs, as the general owners of the steamboat, were also the owners for the voyage, and that the true relation of the United States to the adventure was that of a charterer for hire and shipper of the cargo. [] Through the assistant quartermaster at St. Louis the United States put the cargo on board the steamboat, at a fixed per diem compensation during the round trip, for transporting the military supplies constituting the cargo to the place of destination, the steamboat having the right to take a return cargo from other shippers or to return in ballast, at the election of her owners. She performed the trip up the river and delivered the cargo in good condition and started on the return trip, the United States, as the charterers, having no further interest in the voyage except that the steamboat should return to the port of departure without delay. All sea risks were unquestionably upon the owners of the steamboat, as they were the owners for the voyage as well as the owners in fact, and the record shows that they must have so understood their own rights, as the statement in the record is that when they received information of the disaster they made their protest in order to cover the insurance. Suggestion may be made that the act of the United States in paying for the value of the steamboat after she was swept off by the ice-freshet and destroyed is inconsistent with the theory that they were merely the charterers for hire, and that the plaintiffs were the owners for the voyage as well as the owners in fact, but the adjudication of the third auditor cannot change the rights of the parties in respect to any matters not within his jurisdiction. [] Whether that adjudication was correct or incorrect is not a question in this case, and it is only referred to as showing that it cannot have any weight in the decision of the case before the court. Freight, it is said, cannot be earned unless the voyage is performed and the cargo is delivered; but the voyage in this case, so far as respects the cargo, was performed and the cargo was duly delivered to the consignees, and to that extent the freight was earned; but the plaintiffs were entitled, under the contract, to the same per diem compensation during the return trip in case it was performed without unnecessary delay, and it may be that the United States could not have claimed any deduction from the agreed compensation if the interruption in the voyage had been only a temporary one, and the master, when the cause of interruption had been removed or overcome, had proceeded with the steamboat to the return port. Whatever repairs became necessary in consequence of the disaster would have been a charge to the steamboat or her owners, but it may be that the plaintiffs would have been entitled to the agreed compensation for the days spent in executing the repairs as well as for the days actually spent in the return trip, but it is not necessary to decide those questions in this case, and the court does not express any decided opinion upon the subject. [†] But the interruption in the voyage was not merely a temporary one in any proper sense of the term. On the contrary the voyage was completely broken up, as fully appears from the fact that the master and all the crew ultimately abandoned the steamboat, leaving her where she was stranded, and that she remained there until the 15th of April of the next year, when she was swept off by the ice freshet and became a total loss. Broken up, as the voyage was, by the perils of navigation, no doubt is entertained that the plaintiffs were entitled to the agreed per diem compensation to that time, and to such further allowance at the same rate and for such additional time as it would have required for the steamboat to have completed the return trip. They had performed the whole of the stipulated service for the United States and had delivered the cargo to the assignees, and were proceeding on the return trip in good faith, when the voyage was broken up by causes beyond their control and without any fault on their part or on the part of the master or crew. Unless a carrier assumes the risk of all contingencies, he is not liable because he fails to perform what is rendered impossible by the perils of the sea. Such events as are known as the accidents of major force, or fortuitous events, or the acts of God, always constitute an implied condition in every such engagement. [] Neither party is at liberty to abandon the contract without the consent of the other, or without legal cause, and such cause must not be one procured or occasioned by the fault of the party who relies upon it. [†] Different views have been expressed by different courts as to the effect of a temporary interruption of a voyage upon the rights of the owner of the ship and the shipper or charterer; but the rule seems to be well settled, that when the voyage is broken up by a sea peril, that neither the shipper nor the charterer is in general liable to the ship-owner beyond the time when the peril occurred; but that rule is more particularly applicable in cases where the transportation of the cargo is not complete, and it cannot be applied at all to the case before the court without considerable qualification. [] Reasonably construed, the contract gives the plaintiffs the agreed per diem compensation from the commencement of the voyage until the same was broken up, including also so many days in addition as would have been spent, if no disaster had occurred, in completing the return trip. Apply that rule to the case, and it is clear that the judgment of the court below must be affirmed, as the United States, upon the most liberal computation, have paid more than the contract would entitle the plaintiffs to demand. Payment was made to the time when the mate, engineer, and three watchmen returned home, and the plaintiffs have no right to claim anything more. JUDGMENT AFFIRMED.",in the appeal.
+111,88349,1,2,"Supplies for the military service were transported by the appellees from St. Louis up the Missouri River to Fort Berthold, as more fully explained by the court in the case just decided. They were the owners of the steamboat Belle Peoria, and it appears by the findings in the court below that the assistant quartermaster at that station, on the 1st day of June, 1865, applied to them to take such a cargo and transport it to that place. Objections were made by the owners of the steamboat, as explained in the preceding case; but they put the cargo on board, and on the 3d of the same month started on the upward trip, and it appears that they made the trip in safety, delivered the cargo to the consignees, and without any unnecessary delay started on the return trip. Two days after they started on the return trip the steamboat encountered a high wind, and while those in charge of her were endeavoring to land she was blown aground and became fast. All efforts to get her off proving unavailing, the officers and crew, except the mate, one engineer, and three watchmen, left her and returned to the port of departure. By the findings, it appears that the mate, one engineer, and three watchmen remained on board to the 30th of September of the same year, when they also left the steamer and returned. Claim was made by the present appellees, in the case just decided, for compensation for the service performed in addition to what they had received; but it is unnecessary to enter into any of those details, except to say that the boat remained aground until the 15th of April of the following year, when she was swept off by an ice freshet, and was totally destroyed. Before that occurred, however, the owners of the steamboat dispatched a pilot and crew up the river to the place where the steamboat was aground, to get her afloat and bring her down the river, but the steamboat had been swept off and destroyed three days before they arrived at the place of the disaster. Expenses of course were incurred for the wages of the pilot and crew, and for provisions and transportation, and the court below found that those expenses amounted to the sum of $2500, and for that sum the Court of Claims rendered judgment for the appellees, and the United States appealed to this court. Apart from what appears in the opinion delivered in the other appeal, the only facts found by the court below in support of the claim are what is exhibited in the following statement: These persons, meaning the pilot and crew, were sent, after consultation with the quartermaster at St. Louis, and for the purpose of protecting the interests of the United States as well as those of the claimants. Unless the United States, in contemplation of law, were the owners of the steamboat for the voyage, they had no property interests in the stranded steamboat, as the cargo had, two days before the disaster occurred, been safely discharged at the place of destination and duly delivered to the consignees. They were not owners for the voyage, as the court has just decided, so that if the statement is founded on that theory it is error, and entitled to no weight; and if not founded on that theory, it does not appear to rest on any substantial foundation, as the court has decided in the other appeal that the appellees, as the general owners and owners for the voyage, assumed all risks from sea perils for the entire trip. Temporary delays, if any had occurred, might have increased the per diem compensation which the United States had agreed to pay; but the voyage had been broken up and frustrated more than six months before the pilot and crew were sent to the place of the disaster for the purpose of getting the steamboat afloat. Suppose, however, that it could be admitted that the United States had some property interests in the steamboat, still the admission would not benefit the appellees, as it is perfectly clear that the assistant quartermaster had no authority to bind the United States in any such arrangement. He did not attempt to make any contract, and nothing of the kind can be inferred from the finding of the court, even if it be competent for this court to make inferences to support the judgment, which is not admitted. All that is found is that the owners of the steamboat consulted with the quartermaster before they dispatched the pilot and crew to the scene of the disaster, which falls very far short of evidence to prove a contract, even if the quartermaster had been invested with authority for any such purpose. Viewed in any light, the record does not show any legal foundation for the judgment. JUDGMENT REVERSED, AND THE CAUSE REMANDED WITH DIRECTIONS TO DISMISS THE PETITION.",in the cross appeal.
+112,106566,1,1,"The Project was authorized by the Congress and undertaken by the Bureau of Reclamation of the Department of the Interior pursuant to the Act of August 26, 1937, 50 Stat. 844, 850. It is generally described in sufficient detail for our purposes in United States v. Gerlach Live Stock Co., supra , and Ivanhoe Irrigation District v. McCracken, 357 U. S. 275 (1958). See Graham, The Central Valley Project: Resource Development of a Natural Basin, 38 Cal. L. Rev. 588, 591 (1950), for a description and citation of federal authorizations. The grand design of the Project was to conserve and put to maximum beneficial use the waters of the Central Valley of California, [2] comprising a third of the State's territory, and the bowl of which starts in the northern part of the State and, averaging more than 100 miles in width, extends southward some 450 miles. The northern portion of the bowl is the Sacramento Valley, containing the Sacramento River, and the southern portion is the San Joaquin Valley, containing the San Joaquin River. The Sacramento River rises in the extreme north, runs southerly to the City of Sacramento and then on into San Francisco Bay and the Pacific Ocean. The San Joaquin River rises in the Sierra Nevada northeast of Fresno, runs westerly to Mendota and then northwesterly to the Sacramento-San Joaquin Delta where it joins the Sacramento River. The Sacramento River, because of heavier rainfall in its watershed, has surplus water, but its valley has little available tillable soil, while the San Joaquin is in the contrary situation. An imaginative engineering feat has transported some of the Sacramento surplus to the San Joaquin scarcity and permitted the waters of the latter river to be diverted to new areas for irrigation and other needs. This transportation of Sacramento water is accomplished by pumping water from the Sacramento-San Joaquin Delta into the Delta-Mendota Canal, a lift of some 200 feet. The water then flows by gravity through this canal along the west side of the San Joaquin Valley southerly to Mendota, some 117 miles, where it is discharged into the San Joaquin River. The waters of the San Joaquin River are impounded by a dam constructed at Friant, approximately 60 miles upstream from Mendota. Friant Dam stores the water in Millerton Lake from which it is diverted by the Madera Canal on the north to Madera County and the Friant-Kern Canal on the south to the vicinity of Bakersfield for use in those areas for irrigation and other public purposes. The river bed at Friant is at a level approximately 240 feet higher than at Mendota, 142 F. Supp. 173, which prevents the Sacramento water from being carried further upstream and replenishing the San Joaquin in the 60-mile area between Mendota and Friant Dam, thereby furnishing Sacramento River water for the entire length of the San Joaquin below Friant Dam. This 60-mile stretch of the San Joaquin—and more particularly that between Friant Dam and Gravelly Ford, 37 miles downstream —is the approximate area involved in this litigation. It has been the subject of cooperative studies by the state, local, and federal governments for many years. Indeed the initial planning of the Project recognized, as indicated by the engineering studies included in the plan, that the water flow on the San Joaquin between Friant Dam and Mendota would be severely diminished. See 18 Op. Cal. Atty. Gen. 31, 33-34 (1951). All of the parties recognized the existence of water rights in the area and the necessity to accommodate or extinguish them. Report No. 3, Calif. Water Project Authority, Definition of Rights to the Waters of the San Joaquin River Proposed for Diversion to Upper San Joaquin Valley, 1-2 (1936). The principal alternative, as shown by the reports of the United States Reclamation Bureau to the Congress and the subsequent appropriations of the Congress, was to purchase or pay for infringement of these rights. As early as 1939 the Government entered into negotiations ultimately culminating in the purchase of water rights or agreements for substitute diversions or periodic releases of water from Friant Dam into the San Joaquin River. Graham, The Central Valley Project: Resource Development of a Natural Basin, supra. As of 1952 the United States had entered into 215 contracts of this nature involving almost 12,000 acres, of which contracts some 100 require the United States to maintain a live stream of water in the river. However, agreements could not be reached with some of the claimants along this reach of the river, and this suit resulted.",aspects of the central valley reclamation project involved.
+113,106566,1,2,"The suit was filed in 1947 and has been both costly and protracted. [3] It involves some 325,000 acres of land including a portion of the City of Fresno. See map in 142 F. Supp., at 40. Originally filed in the Superior Court of California, it sought to enjoin local officials of the United States Reclamation Bureau from storing or diverting water to the San Joaquin at Friant Dam or, in the alternative, to obtain a decree of a physical solution of water rights. The action was removed to the United States District Court for the Southern District of California. The named plaintiffs claimed to represent a class of owners of riparian as well as other types of water rights. In addition to the local officials of the Reclamation Bureau two of the Irrigation Districts receiving diverted water from Millerton Lake were originally made defendants and later the other Irrigation and Utility District defendants were joined. The complaint challenged the constitutional authority of the United States to operate the Project. A three-judge court was impaneled pursuant to 28 U. S. C. § 2282, and it decided this issue presented no substantial constitutional question. Rank v. Krug, 90 F. Supp. 773 (D. C. S. D. Cal. 1950). This left undecided the question of whether the Secretary of the Interior and Bureau of Reclamation officials had statutory authority to acquire the water rights involved. The issue remained dormant until the Delta-Mendota Canal was completed in 1951, 142 F. Supp., at 45, and the Government began to reduce the flow of water through Friant Dam. By consent, temporary restraining orders were entered controlling the releases covering the years 1951, 1952, and part of 1953. In June of the latter year the United States withdrew its consent with the approval of the Court of Appeals, United States v. United States District Court, 206 F. 2d 303. The District Court then ordered the United States joined as a party on the basis of the McCarran amendment, Act of July 10, 1952, 66 Stat. 560, 43 U. S. C. § 666, infra, n. 5. Friant Dam has, however, been operated by the United States without judicial interference since June 30, 1953. The District Court announced its opinion in the case on February 7, 1956, 142 F. Supp. 1, and the judgment was entered the next year. It declared the water rights of all of the claimants, the members of the class they claimed to represent and the intervenors, Tranquility Irrigation District and the City of Fresno, as against the United States, the Reclamation Bureau officers and the Districts. It did not grant relief as between individual claimants of water rights or adjudicate the priority of these rights among them. 142 F. Supp., at 36. The judgment declared that the claimants have been, now are, and will be entitled to the full natural flow of the San Joaquin River past Friant at all times . . . unless and until the physical solution hereinelsewhere described is erected and constructed [by the defendants] within a reasonable time, and thereafter operated as hereinelsewhere set forth. Transcript of Record, Vol. III, p. 993. The physical solution was a series of 10 small dams to be built at the expense of the United States along the stretch of river involved for the purpose of keeping the water at a level equivalent to the natural flow, 142 F. Supp., at 166, or to simulate it at a flow of 2,000 feet per second. 142 F. Supp., at 169. In summary, the court held that the United States was a proper party under the McCarran amendment; that the claimants had vested rights to the full natural flow of the river superior to any rights of the United States or other defendants; that the operation of Friant Dam does not permit sufficient water to pass down the river to satisfy these rights; that Congress has not authorized the taking of these rights by physical seizure but only by eminent domain exercised through judicial proceedings; that as a consequence the impounding at Friant Dam constitutes an unauthorized and unlawful invasion of rights for which damages are not adequate recompense; that this requires all of the defendants, including the United States, to be enjoined from storing or diverting or otherwise impeding the full natural flow of the San Joaquin at Friant Dam unless within a reasonable time and at its own expense the United States, or the Districts, build the dams aforesaid and put them into operation; that the United States is subject to the California county of origin and watershed of origin statutes, Calif. Water Code § 10505, and §§ 11460-11463, and must first satisfy at the same charge as made for agricultural water service the full needs of the City of Fresno and Tranquility Irrigation District before diverting San Joaquin water to other areas; and finally that the United States is also subject to Calif. Water Code §§ 106 and 106.5 as to domestic-use water priority and the power of municipalities to acquire and hold water rights. [4] The Court of Appeals reversed as to the joinder of the United States, holding that it could not be made a party without its consent. It likewise found that the United States was authorized to acquire, either by physical seizure or otherwise, such of the rights of the claimants as it needed to operate the Project and that this power could not be restricted by state law. However, it found that no such authorized seizure had occurred because the Government had not sufficiently identified what rights it was seizing, and because of this equivocation of the federal officials, there was a trespass rather than a taking. It concluded, therefore, that the petitioner Reclamation Bureau officials had acted beyond their statutory authority and affirmed the injunctive features of the judgment. On rehearing, the injunction was modified to make it inapplicable to the petitioner Districts in No. 115 but the court refused to dismiss as to them.",history of the litigation.
+114,106566,1,3,"We go directly to the question of joinder of the United States as a party. We agree with the Court of Appeals on this issue and therefore do not consider the contention at length. It is sufficient to say that the provision of the McCarran amendment, 66 Stat. 560, 43 U. S. C. § 666, [5] relied upon by respondents and providing that the United States may be joined in suits for the adjudication of rights to the use of water of a river system or other source, is not applicable here. Rather than a case involving a general adjudication of all of the rights of various owners on a given stream, S. Rep. No. 755, 82d Cong., 1st Sess. 9 (1951), it is a private suit to determine water rights solely between the respondents and the United States and the local Reclamation Bureau officials. In addition to the fact that all of the claimants to water rights along the river are not made parties, no relief is either asked or granted as between claimants, nor are priorities sought to be established as to the appropriative and prescriptive rights asserted. But because of the presence of local Reclamation Bureau officials and the nature of the relief granted against them, the failure of the action against the United States does not end the matter. We must yet deal with the holding of the Court of Appeals that the suit against these officials is not one against the United States.",the united states as a party.
+115,106566,1,4,"The Court of Appeals correctly held that the United States was empowered to acquire the water rights of respondents by physical seizure. As early as 1937, by the Rivers and Harbors Act, 50 Stat. 844, 850, the Congress had provided that the Secretary of the Interior may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes . . . . Likewise, in United States v. Gerlach Live Stock Co., supra , this Court implicitly recognized that such rights were subject to seizure when we held that Gerlach and others were entitled to compensation therefor. The question was specifically settled in Ivanhoe Irrigation District v. McCracken, supra , where we said that such rights could be acquired by the payment of compensation either through condemnation or, if already taken, through action of the owners in the courts. 357 U. S., at 291. However, the Court of Appeals, in examining the extent of the taking here, concluded that rather than an authorized taking of water rights, the action of the Reclamation Bureau officials constituted an unauthorized trespass. The court observed that the San Joaquin will not be dried up below Friant because the Government has contracted with other water right owners to maintain a live stream, and as the flow of water varies from day to day the respondents do not now and never will know what part of their claimed water rights the Government has taken or will take. A casual day by day taking under these circumstances constitutes day to day trespass upon the water right. . . . The cloud cast prospectively on the water right by the assertion of a power to take creates a present injury above what has been suffered by the interference itself—a present loss in property value which cannot be compensated until it can be measured. 293 F. 2d, at 358. The court, therefore, permitted the suit against the petitioning Reclamation Bureau officers as one in trespass, which led it to affirm, with modification, the injunctive relief granted by the District Court. Rather than a trespass, we conclude that there was, under respondents' allegations, a partial taking of respondents' claimed rights. We believe that the Court of Appeals incorrectly applied the principle of Larson v. Domestic & Foreign Corp., 337 U. S. 682 (1949), and other cases in the field of sovereign immunity. The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, Land v. Dollar, 330 U. S. 731, 738 (1947), or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act. Larson v. Domestic & Foreign Corp., supra, at 704; Ex parte New York, 256 U. S. 490, 502 (1921). The decree here enjoins the federal officials from impounding, or diverting, or storing for diversion, or otherwise impeding or obstructing the full natural flow of the San Joaquin River . . . . Transcript of Record, Vol. III, p. 1021. As the Court of Appeals found, the Project could not operate without impairing, to some degree, the full natural flow of the river. Experience of over a decade along the stretch of the San Joaquin involved here indicates clearly that the impairment was most substantial—almost three-fourths of the natural flow of the river. To require the full natural flow of the river to go through the dam would force the abandonment of this portion of a project which has not only been fully authorized by the Congress but paid for through its continuing appropriations. Moreover, it would prevent the fulfillment of the contracts made by the United States with the Water and Utility Districts, which are petitioning in No. 115. The Government would, indeed, be stopped in its tracks . . . . Larson v. Domestic & Foreign Corp., supra, at 704. The physical solution has no less direct effect. The Secretary of the Interior, the President and the Congress have authorized the Project as now constructed and operated. Its plans do not include the 10 additional dams required by the physical solution to be built at government expense. The judgment, therefore, would not only interfere with the public administration but also expend itself on the public treasury . . . . Land v. Dollar, supra, at 738. Moreover, the decree would require the United States—contrary to the mandate of the Congress— to dispose of valuable irrigation water and deprive it of the full use and control of its reclamation facilities. It is therefore readily apparent that the relief granted operates against the United States. Nor do we believe that the action of the Reclamation Bureau officials falls within either of the recognized exceptions to the above general rule as reaffirmed only last Term. Malone v. Bowdoin, 369 U. S. 643. See Larson v. Domestic & Foreign Corp., supra ; Santa Fe Pac. R. Co. v. Fall, 259 U. S. 197, 199 (1922); Scranton v. Wheeler, 179 U. S. 141, 152-153 (1900). Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void. Malone v. Bowdoin, supra, at 647. In either of such cases the officer's action can be made the basis of a suit for specific relief against the officer as an individual . . . . Ibid. But the fact that the Court of Appeals characterized the action of the officers as a trespass does not at all establish that it was either unconstitutional or unauthorized. As this Court said in Larson, supra, at 693: The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet [the] requirement [that it must also appear that the action to be restrained or directed is not action of the sovereign]. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign. And, the Court added: the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so `illegal' as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void. Id., at 701-702. Since the Government, through its officers here, had the power, under authorization of Congress, to seize the property of the respondents, as held by the Court of Appeals and recognized by several cases in this Court, and this power of seizure was constitutionally permissible, as we held in Ivanhoe, supra, there can be no question that this case comes under the rule of Larson and Malone, supra . The power to seize which was granted here had no limitation placed upon it by the Congress, nor did the Court of Appeals bottom its conclusion on a finding of any limitation. Having plenary power to seize the whole of respondents' rights in carrying out the congressional mandate, the federal officers a fortiori had authority to seize less. It follows that if any part of respondents' claimed water rights were invaded it amounted to an interference therewith and a taking thereof—not a trespass. We find no substance to the contention that respondents were without knowledge of the interference or partial taking. Nor can we accept the view that the absence of specificity as to the amount of water to be taken prevents the assessment of damages in this case. From the very beginning it was recognized that the operation of Friant Dam and its facilities would entail a taking of water rights below the dam. Indeed, it was obvious from the expressed purpose of the construction of the dam—to store and divert to other areas the waters of the San Joaquin—and the intention of the Government to purchase water rights along the river. [6] Pursuant to this announced intention the Government did in fact enter into numerous contracts for water rights, as we have previously noted. While it is true, as the Court of Appeals observed, that the Government did not announce that it was taking water rights to a specified number of gallons or, for that matter, inches of water, see 293 F. 2d 340, 357-358, we do not think this quantitative uncertainty precludes ascertainment of the value of the taking. On this point we conclude that the Court of Appeals was in error. We find no uncertainty in the taking. It is likely that an element of uncertainty may have been drawn by the Court of Appeals from the Secretary of the Interior's statement in a letter that the operation of Friant Dam is an administrative one, voluntarily assumed and voluntarily to be executed. 293 F. 2d 340, 356, n. 8. This alone might present a picture of a spillway being opened and closed at the whim of the Secretary. We view this statement, however, as merely notice to the court that the Secretary intended to operate the water works fairly, but solely on his own, without court interference. Neither he nor the United States was a party. Even if the statement did introduce an element of uncertainty as to what exactly the Secretary might do, injunctive relief was not proper. Despite this caveat, damages were clearly ascertainable (see Collier v. Merced Irrigation District, 213 Cal. 554, 571-572, 2 P. 2d 790, 797 (1931)), based partially on the Secretary's prior unequivocal statement regarding his plans as to the minimum flow of water to be released into the river below the dam. [7] Parenthetically, we note that petitioners, in their brief, at p. 12, inform us that Friant Dam has since been operated in accordance with the Secretary's stated plan, subject to adjustments required by weather and other conditions. Damages in this instance are to be measured by the difference in market value of the respondents' land before and after the interference or partial taking. As the Supreme Court of California said in Collier v. Merced Irrigation District, supra, at 571-572. . . . [T]he riparian right is a part and parcel of the land in a legal sense, yet it is a usufructuary and intangible right inhering therein and neither a partial nor a complete taking produces a disfigurement of the physical property. The only way to measure the injury done by an invasion of this right is to ascertain the depreciation in market value of the physical property. . . . There was a distinct conflict in the evidence as to whether the lands of appellant had a greater or a less market value after the taking by respondent, but there is no question of law arising on the evidence. The right claimed here is to the continued flow of water in the San Joaquin and to its use as it flows along the landowner's property. A seizure of water rights need not necessarily be a physical invasion of land. It may occur upstream, as here. Interference with or partial taking of water rights in the manner it was accomplished here might be analogized to interference or partial taking of air space over land, such as in our recent case of Griggs v. Allegheny County, 369 U. S. 84, 89-90 (1962). See United States v. Causby, 328 U. S. 256, 261-263, 267 (1946); Portsmouth Co. v. United States, 260 U. S. 327, 329 (1922). See also 1 Wiel, Water Rights in the Western States (3d ed. 1911), § 15; 2 Nichols, Eminent Domain (3d ed. 1950), § 6.3. Therefore, when the Government acted here with the purpose and effect of subordinating the respondents' water rights to the Project's uses whenever it saw fit, with the result of depriving the owner of its profitable use [there was] the imposition of such a servitude [as] would constitute an appropriation of property for which compensation should be made. Peabody v. United States, 231 U. S. 530, 538 (1913); Portsmouth Co. v. United States, supra, at 329. In an appropriate proceeding there would be a determination of not only the extent of such a servitude but the value thereof based upon the difference between the value of respondents' property before and after the taking. Rather than a stoppage of the government project, this is the avenue of redress open to respondents. Since we have set aside the judgments of both the Court of Appeals and the District Court, it is appropriate that we make clear that we do not in any way pass upon or indicate any view regarding the validity of respondents' water right claims.",relief granted against federal officers.
+116,106566,1,5,"Similar disposition must be made of No. 115. There the petitioners are 14 Irrigation and Utility Districts which have contracts with the Government for the use of water from Millerton Lake. The Court of Appeals, as we have noted, dissolved the injunction previously granted against them by the District Court. No other relief having been sought against the Districts, it appears that they should have been dismissed from the action. In any event, in view of our disposition of No. 31, dismissal of these petitioners is now in order. The judgment as to the dismissal of the United States is affirmed; it is reversed as to the failure to dismiss the Reclamation officials and the Irrigation and Utility Districts, and the cases are remanded to the Court of Appeals with directions that it vacate the judgment of the District Court and remand the case with instructions that the same be dismissed. It is so ordered. THE CHIEF JUSTICE took no part in the consideration or decision of these cases.",the irrigation and utility districts.
+117,104037,1,1,"A. Objections of the United States. The United States objects to the provision of the decree that no defendant exhibitor shall acquire a financial interest in any additional theatre outside Nashville in any town where there already is a theatre unless the owner of such theatre should voluntarily offer to sell same to either of the exhibitor defendants, and when none of said defendants, their officers, agents or servants are guilty of any of the acts or practices prohibited by paragraph nine (9) hereof. Paragraph 9 referred to enjoins the defendants from coercing or attempting to coerce independent operators into selling out to it, or to abandon plans to compete with it by predatory practices. It asks that there be substituted for that provision one which the District Court had earlier approved restraining such acquisitions except after an affirmative showing that such acquisition will not unreasonably restrain competition. The Court at times has rather freely modified decrees in Sherman Act cases where it approved the conclusions of the District Court as to the nature and character of the violations. Standard Oil Co. v. United States, 221 U.S. 1, 78-82. United States v. American Tobacco Co., 221 U.S. 106, 184-188. We recognize however that there is a wide range of discretion in the District Court to mould the decree to the exigencies of the particular case; and where the findings of violations are sustained, we will not direct a recasting of the decree except on a showing of abuse of discretion. See Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 461; United States v. Bausch & Lomb Co., 321 U.S. 707, 725, 728. We think this is a case where we should act lest the public interest not be adequately protected by the decree as cast. The generality of this provision of the decree bids fair to call for a retrial of a Sherman Act case any time a citation for contempt is issued. The crucial facts in each case would be subtle ones as is usually true where purpose and motive are at issue. This type of provision is often the only practical remedy against continuation of illegal trade practices. But we are dealing here with a situation which permits of a more select treatment. The growth of this combine has been the result of predatory practices condemned by the Sherman Act. The object of the conspiracy was the destruction or absorption of competitors. It was successful in that endeavor. The pattern of past conduct is not easily forsaken. Where the proclivity for unlawful activity has been as manifest as here, the decree should operate as an effective deterrent to a repetition of the unlawful conduct and yet not stand as a barrier to healthy growth on a competitive basis. The acquisition of a competing theatre terminates at once its competition. Punishment for contempt does not restore the competition which has been eliminated. And where businesses have been merged or purchased and closed out it is commonly impossible to turn back the clock. Moreover if the District Court were to supervise future acquisitions in this case, it would not be undertaking an onerous and absorbing administrative burden. The burden would not seem more onerous than under the alternative provision where in substance the issue would be violation of the Sherman Act vel non. These considerations impel us to conclude that the decree should be revised so as to prohibit future acquisitions of a financial interest in additional theatres outside of Nashville except after an affirmative showing that such acquisition will not unreasonably restrain competition. B. Objections of the Defendants. (1) The decree enjoins the defendant exhibitors from making franchises with certain distributors with the purpose and effect of maintaining their theatre monopolies and preventing independent theatres from competing with them and from entering into any similar combinations and conspiracies having similar purposes and objects. The decree also enjoins them from combining, in licensing films, their closed towns with their competitive situations for the purpose and with the effect of compelling the major distributors to license films on a non-competitive basis in competitive situations and to discriminate against the independents. The decree also enjoins each defendant exhibitor from conditioning the licensing of films in any competitive situations (outside Nashville) upon the licensing of films in any other theatre situation. It is argued that these provisions will aggrandize the distributors at the expense of the exhibitors, that if such measures are taken they should be taken against the distributors, that they deprive the exhibitors of group purchasing power, that the franchise agreements are normal and necessary both for distributors and exhibitors, and that these provisions of the decree are so vague and general as to greatly burden the conduct of these businesses. It is not for us, however, to pick and choose between competing business and economic theories in applying this law. Congress has made that choice. It has declared that the rule of trade and commerce should be competition, not combination. United States v. Trenton Potteries Co., 273 U.S. 392, 397; Fashion Originators' Guild v. Federal Trade Commission, 312 U.S. 457, 465. Since Congress has made that choice, we cannot refuse to sustain a decree because by some other measure of the public good the result may not seem desirable. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221-222. The duty of the Court in these cases is to frame its decree so as to suppress the unlawful practices and to take such reasonable measures as would preclude their revival. Ethyl Gasoline Corp. v. United States, supra, p. 461. The chief weapons used by this combination in its unlawful warfare were the franchise agreements and the licensing system. The fact that those instruments could be lawfully used does not mean that the defendants may leave the court unfettered. Civil suits under the Sherman Act would indeed be idle gestures if the injunction did not run against the continuance or resumption of the unlawful practice. And it is hard to see how the decree could be made less general and more specific. If it is a burden which cannot be lightened by application to the court for exercise of the power which it has reserved over the decree, it is a burden which those who have violated the Act must carry. And the fact that there may be somewhere in the background a greater conspiracy from which flow consequences more serious than we have here is no warrant for a refusal to deal with the lesser one which is before us. (2) Serious complaint is made of the divestiture provisions of the decree. It requires each corporate exhibitor to divest itself of the ownership of any stock or other interest in any other corporate defendant or affiliated corporation, [6] and enjoins it from acquiring any interest in those companies. Sudekum is required to resign as an officer of any corporation (except Crescent) which is affiliated with any defendant exhibitor and he is enjoined from acquiring control over any such affiliate (except Crescent) by acting as officer or otherwise. Stengel is required to resign as officer of the affiliates (except one corporation of his choice) and is enjoined from acquiring any control over the others by acting as an officer or otherwise. A year from the date of entry of the decree is allowed for completing this divestiture. It is said that these provisions are inequitable and harsh income tax wise, that they exceed any reasonable requirement for the prevention of future violations, and that they are therefore punitive. The Court has quite consistently recognized in this type of Sherman Act case that the government should not be confined to an injunction against further violations. Dissolution of the combination will be ordered where the creation of the combination is itself the violation. See Northern Securities Co. v. United States, 193 U.S. 197, 354-360; Standard Oil Co. v. United States, supra ; United States v. American Tobacco Co., supra, pp. 186-188; United States v. Union Pacific R. Co., 226 U.S. 61, 97; United States v. Reading Co., 253 U.S. 26, 63; United States v. Lehigh Valley R. Co., 254 U.S. 255; United States v. Southern Pacific Co., 259 U.S. 214; United States v. Corn Products Refining Co., 234 F. 964, 1018. Those who violate the Act may not reap the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience. That principle is adequate here to justify divestiture of all interest in some of the affiliates since their acquisition was part of the fruits of the conspiracy. But the relief need not, and under these facts should not, be so restricted. The fact that the companies were affiliated induced joint action and agreement. Common control was one of the instruments in bringing about unity of purpose and unity of action and in making the conspiracy effective. If that affiliation continues, there will be tempting opportunity for these exhibitors to continue to act in combination against the independents. The proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future. Hence we do not think the District Court abused its discretion in failing to limit the relief to an injunction against future violations. There is no reason why the protection of the public interest should depend solely on that somewhat cumbersome procedure when another effective one is available. The fact that minority stockholders of the affiliated companies are not parties to the suit is no legal barrier to a separation of the companies. United States v. American Tobacco Co., supra. No legal right of one stockholder is normally affected if another stockholder is required to sell his stock. And no exception to that rule has been shown to exist here. Only business inconvenience and hardship are asserted. It is said, however, that the decree requires Rockwood and Cherokee (two defendant exhibitors) to sell their respective half-interests in two companies which were not made parties to the proceedings. The argument is that the latter companies are indispensable parties if such divestiture is required. Reliance is placed on Minnesota v. Northern Securities Co., 184 U.S. 199. In that case Minnesota brought an original action in this Court alleging that the acquisition by Northern Securities Co. of the majority stock of two railroad companies effected a consolidation of the railroads in violation of Minnesota law. Minnesota asked, among other things, for an injunction against Northern Securities Co. voting the stock of those companies. The Court held that the two railroad companies were indispensable parties; and since the jurisdiction of the Court would have been defeated if they were joined, leave to file the bill was denied. Denial of the right of a majority stockholder to vote his stock would deprive the corporation of a board of directors elected in accordance with state law. If such a step were taken, the corporation should be a party so that all corporate interests might be represented. Minnesota v. Northern Securities Co . goes no farther than that. Here there is no showing of any complication of that order. If such a complication appeared, the District Court could bring in the two affiliates as parties in order to effectuate the decree. United States v. Southern Pacific Co., supra, p. 241. But on this record it does not appear that if Rockwood and Cherokee are required to sell their half-interests in those companies any legal right of any other stockholder would be affected. Cf. Morgan v. Struthers, 131 U.S. 246. We have considered the other contentions and find them without merit. The appeal in No. 17 is dismissed. The judgment in No. 18 is reversed. The judgment in No. 19 is affirmed. It is so ordered. MR. JUSTICE FRANKFURTER, MR. JUSTICE MURPHY, and MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.",The major controversy here has turned on the provisions of the decree.
+118,110914,3,1,"The first trial began as scheduled on Thursday, September 23. At the opening of trial, respondent told the court: I only have this P. D. [Public Defender] for a day and a half, we have not had time to prepare this case. He came in Tuesday night, last Tuesday night was the first time I saw him.. . . We have not had enough time to prepare this case. App. 7. Construing respondent's remarks as a motion for a continuance, the court denied the motion, noting that the case had been assigned to Hotchkiss the previous Friday, six days before the trial date, and that Hotchkiss stated he had investigated the case, [and] studied it. Id., at 8. In reply, respondent repeated his claim that Hotchkiss had only been on the case for a day and a half. Respondent then stated: [T]his past Tuesday was the first time [Hotchkiss interviewed me.] He said he was busy and he couldn't make it up there. He only [sic] been on this case one day and a half your Honor, he can't possibly have had enough time to investigate all these things in this case. Some of the major issues have not been investigated. It's impossible for him to have time enough to take care of this case to represent this case properly, the way it should be represented. Ibid. Hotchkiss explained Goldfine's absence and stated that he was prepared to try the case on the basis of his study of the investigation made by Goldfine and his conferences with respondent. I feel that I am prepared. My own feeling is that a further continuance would not benefit me in presenting the case. Id., at 11. Respondent replied that he was  satisfied with the Public Defender, but it's just no way, no possible way, that he has had enough time to prepare this case. Id., at 12 (emphasis added). The trial judge repeated that he was confident that the Public Defender's Office was representing respondent adequately and that Hotchkiss was an experienced counsel; the court again denied a continuance. Id., at 9.",First Day of First Trial
+119,110914,3,2,"At the start of the second day of trial, on Friday, September 24, 1976, respondent again complained that Hotchkiss was not prepared. When the court expressed its confidence in Hotchkiss, respondent said: I don't mean he's not a good P. D., I don't have anything against him. It's just that he didn't have time to prepare the case, one day and a half. Id., at 18 (emphasis added). The trial judge again stated that he was satisfied that the case had been well prepared by Goldfine, and that Hotchkiss had been assigned to the case the previous week, had read the transcript of the preliminary hearing, and had prepared the case, reviewed all the matters, obtained the pictures, and other items that he intends to produce into evidence. Ibid. In conclusion, the trial judge stated: I am satisfied . . . that Mr. Hotchkiss is doing a more than adequate job, a very fine job. Id., at 18-19. When respondent continued to complain that Hotchkiss had not adequately investigated the case, Hotchkiss told the court: My feeling is that all investigation that needed to be done and that should be done and quite possibly that could have been done has been done. Id., at 21-22. Finally, Hotchkiss pointed out that he would have the weekend between the close of the prosecution's case and the beginning of the defense's case for further conferences with respondent. Id., at 22-23. At this time — on the second day of the first trial — respondent first mentioned Goldfine's name. After complaining again about Hotchkiss' alleged lack of time for preparation, respondent said: Mr. Harvey Goldfine was my attorney, he was my attorney, and he still is. I haven't seen him in five weeks because he's in the hospital. Id., at 24. Respondent then claimed that not even Goldfine had had enough time to prepare the case: Mr. Harvey Goldfine didn't even have enough time to go over my case with me, he didn't even have time. Ibid. Respondent concluded these remarks with additional complaints about Hotchkiss' preparation.",Second Day of First Trial
+120,110914,3,3,"Trial resumed four days later, on Tuesday, September 28, 1976. Out of the presence of the jury, respondent presented the court with a pro se petition for a writ of habeas corpus, claiming that he was unrepresented by counsel. In support of his petition, respondent claimed that Goldfine, not Hotchkiss, was his attorney. Specifically, he said that the writ should be granted on the grounds that my attorney's in the hospital, and I don't legally have no attorney, and this P. D. here told me, this P. D., Mr. Hotchkiss, Bruce Hotchkiss, told me I didn't have no defense to my charges.  Id., at 29 (emphasis added). Hotchkiss disputed this charge. The trial court treated the petition as a renewal of respondent's motion for a continuance, and denied it. Following the court's ruling, respondent announced that he would not cooperate at all in the trial and asked to be returned to his cell. The court urged respondent to cooperate but respondent refused, claiming that Hotchkiss did not represent him: I don't have any Counsel, I just got through telling you, I don't have no Counsel. Id., at 32. However, respondent remained in the courtroom and the trial proceeded. Later, respondent renewed his attack: What do I have to say to get through to you, your Honor, what do I have to say to make you understand. I have told you two or three times, and then you keep telling me about talking to my Counsel. I don't have no attorney, I told you I don't have no attorney. My attorney's name is Mr. P. D. Goldfine, Harvey Goldfine, that's my attorney, he's in the hospital. Id., at 37-38. Ultimately, respondent refused to take the stand, ignoring Hotchkiss' advice that he testify. The jury returned a verdict of guilty on the robbery, burglary, and false imprisonment counts, but failed to reach a verdict on the rape and oral copulation counts.",Third Day of First Trial
+121,110914,3,4,"A week later, a second trial was held on the charges left unresolved as a result of the mistrial and Hotchkiss again appeared for respondent. Once more, respondent ignored Hotchkiss' advice and refused to take the stand. [2] Indeed, respondent refused to cooperate with or even speak to Hotchkiss. The second jury returned a guilty verdict on the sexual assault counts. The California Court of Appeal affirmed respondent's convictions on all five counts; the California Supreme Court denied review.",Second Trial
+122,110329,1,1,"Warren Trading Post held that Arizona could not levy its transaction privilege tax against a company regularly engaged in retail trading with the Indians upon a reservation. The company operated under a federal license, and it was subject to the federal regulatory scheme authorized by 25 U. S. C. §§ 261-264. These apparently all-inclusive regulations, the Court concluded, show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders. 380 U. S., at 690. The Court today is too much persuaded by the superficial similarity between Warren Trading Post and Central Machinery. The Court mistakenly concludes that a company having no license to trade with the Indians and no place of business within a reservation is engaged in the business of Indian trading on reservations. . . . 380 U. S., at 690. Although [a]ny person desiring to sell goods to Indians inside a reservation must secure federal approval, see 25 U. S. C. §§ 262, 264, the federal regulations—and the facts of this case—show that a person who makes a single approved sale need not become a fully regulated Indian trader. Even itinerant peddlers who engage in a pattern of selling within a reservation are merely considered as traders for purposes of the licensing requirement. 25 CFR § 251.9 (b) (1979). The business of a licensed trader, in fact, must be managed by the bonded principal, who must habitually reside upon the reservation. . . . 25 CFR § 251.14 (1979). [1] Since Warren Trading Post involved a resident trader subject to the complete range of federal regulation, the Court had no occasion to consider whether federal regulation also pre-empts state taxation of a seller who enters a reservation to make a single transaction. [2] Our most recent cases undermine the notion that 25 U. S. C. §§ 261-264 occupy the field so as to pre-empt all state regulation affecting licensed Indian traders. The unanimous Court in Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 481-483 (1976), concluded that a State could require tribal retailers to prepay a tax validly imposed on non-Indian customers. Rejecting an argument based on Warren Trading Post, the Court concluded that federal laws `passed to protect and guard [the Indians] only affect the operation, within the [reservation], of such state laws as conflict with the federal enactments.' 425 U. S., at 483, quoting United States v. McGowan, 302 U. S. 535, 539 (1938). In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 159-160 (1980), the Court holds that a State can require licensed traders to keep detailed tax records of their sales to both Indians and non-Indians. Cf. Confederated Tribes v. Washington, 446 F. Supp. 1339, 1347, 1358-1359 (ED Wash. 1978) (three-judge court). Finally, unlike taxes imposed upon an Indian trader engaged in a continuous course of dealing within the reservation, the tax assessed against Central Machinery does not to a substantial extent frustrate the evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians . . . except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. Warren Trading Post, supra, at 691. In this case, the Bureau of Indian Affairs approved all aspects of the only sale Central Machinery made to the Gila River Indian Tribe. The contract price approved by the Bureau included costs attributable to the very tax that Central Machinery now seeks to recover. Ante, at 161-162. Thus, the State's tax did not interfere with the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable. . . . Warren Trading Post, supra, at 691. Since a seller not licensed to trade with the Indians must secure specific federal approval for each isolated transaction, there is no danger that ordinary state business taxes upon the seller will impair the Bureau's ability to prevent fraudulent or excessive pricing. To hold the seller immune from state taxes otherwise due upon a single transaction with the Indians gives the non-Indian seller a windfall or the Indian buyer an unwarranted advantage over all others who deal with the seller.",Central Machinery
+123,110329,1,2,"White Mountain Apache Tribe presents a different situation. Petitioner Pinetop Logging Co. operates solely and continuously upon an Indian reservation under its contract with a tribal enterprise. Pinetop's daily operations are controlled by a comprehensive federal regulatory scheme designed to assure the Indian tribes the greatest possible return from their timber. Federal officials direct Pinetop's hauling operations down to such details as choice of equipment, selection of routes, speeds of travel, and dimensions of the loads. Ante, at 146-148. Pinetop does all of the hauling at issue in this case over roads constructed, maintained, and regulated by the White Mountain Apache Tribe and the Bureau of Indian Affairs. The Bureau requires the Tribe and its contractors to repair existing roads and to construct new roads necessary for sustained logging. Pinetop exhausts a large percentage of its gross income in performing these contractual obligations. Ante, at 148. Since the Federal Government, the Tribe, and its contractors are solely responsible for the roads that Pinetop uses, I cannot believe that Congress intended to leave to the State the privilege of levying road use taxes upon Pinetop's operations. See Warren Trading Post, 380 U. S., at 691. The State has no interest in raising revenues from the use of Indian roads that cost it nothing and over which it exercises no control. See Washington v. Confederated Tribes, supra, at 162-164. [3] The addition of these taxes to the road construction and repair expenses that Pinetop already bears also would interfere with the federal scheme for maintaining roads essential to successful Indian timbering. See 380 U. S., at 691. The Tribe or its contractors would pay twice for use of the same roads. This double exaction could force federal officials to reallocate work from non-Indian contractors to the tribal enterprise itself or to make costly concessions to the contractors. I therefore join the Court in concluding that this case is in all relevant respects indistinguishable from Warren Trading Post. Ante, at 153.",White Mountain Apache Tribe
+124,109990,2,1,"6 Section 220.39 specifies criminal sale of a controlled substance in the third degree as a class A-III felony. See n. 1, supra . 7 Fowler's criminal record is set out in full in the District Court's opinion, 436 F.Supp. 1153, 1159 n. 13 (S.D.N.Y.1977). 8 Chapter 20, renumbered Chapter 14, of the Magna Carta states: A free man shall not be amerced for a trivial offence; except in accordance with the degree of the offence, and for a serious offence he shall be amerced according to its gravity, saving his livelihood . . . . J. Holt, Magna Carta 323 (1965). For a discussion of the evolution of the Cruel and Unusual Punishments Clause in the English Bill of Rights, see Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Calif.L.Rev. 839, 855-860 (1969). 9 The Court of Appeals suggested that petitioners were not aided by the fact that their convictions were based on cocaine and not heroin. Cocaine is a dangerous drug that causes damaging psychological and physiological effects in its users. 576 F.2d 405, 412 n. 11 (CA2 1978). In support of that proposition, the court cited no findings by the District Court. Rather, the Court of Appeals relied on a law review article which notes that cocaine use does not produce tolerance or physical dependence, McLaughlin, Cocaine: The History and Regulation of a Dangerous Drug, 58 Cornell L.Rev. 537, 553 (1973), and on an opinion of the Alaska Supreme Court which acknowledges that, [w]hile cocaine has been anecdotally related to aggressive or criminal conduct, adequate evidence to assess its possible impact in these areas is absent. State v. Erickson , 574 P.2d 1, 9 (1978). 10 Here there was no evidence causally linking petitioners' drug offenses to any violent collateral crimes. And it is questionable whether such linkage can be presumed. Even if the Court of Appeals could appropriately rely on a New Yorker Magazine article to establish that a substantial percentage of New York's prison inmates use drugs and that many of them turn to robbery or burglary to support their habits, see 576 F.2d, at 412 n. 12, it cannot be presumed either that: (1) but for drugs, those defendants would not have committed crimes; or (2) cocaine sales have a significant causal relationship to robbery or burglary. See n. 9 supra . Indeed, one of the Court of Appeal's own sources noted that there is no reliable scientific evidence linking cocaine usage to criminal conduct . . .. State v. Erickson, supra , at 9. 11 N.Y. Penal Law §§ 160.15, 70.00(2)(b) (McKinney 1975); §§ 140.30, 70.00(2)(b); § 230.00 (McKinney Supp.1978), New York Penal Law § 70.15(2) (McKinney 1975). 12 In In re Lynch , the California Supreme Court held that an indeterminate sentence must be evaluated as a maximum sentence of life imprisonment and that, as such, it was cruel and unusual punishment for a second offense of indecent exposure. The Court of Appeals for the Fifth Circuit adopted a contrary approach in Rummel v. Estelle , 587 F.2d 651 (1978) (en banc). At issue there was the constitutionality of a sentence imposed under the Texas Habitual Criminal Statute, which mandates life imprisonment upon a third felony conviction. Relying in part on the analysis of the Court of Appeals in this case, the en banc majority upheld the sentence, after taking into consideration the possibility of parole. Id. , at 662. The dissent, in which six judges joined, refused to discount the defendant's sentence by a statistical possibility of clemency, an unenforceable hope that he may someday benefit from the grace of a parole board. Id. , at 668. (Clark, J., dissenting) (footnote omitted). That another Circuit has narrowly divided over a question of critical significance for this case is, in my judgment, further reason for granting review. 13 N.Y. Penal Law §§ 125.27, 125.25, 150.20, 135.25 (McKinney 1975). 14 The crimes are defined in N.Y. Penal Law §§ 130.35, 125.20, 135.20, 150.15, 160.15, 140.30, 120.10 (McKinney 1975). The penalties are set forth in §§ 70.02(3)(a), (b) (McKinney Supp.1978). 15 If convicted of possession as a second offender, Carmona would have been subject to no more than two years' imprisonment and a $10,000 fine. 21 U.S.C. § 844(a). Had she been convicted of possession with intent to sell, the maximum penalty for a first offense would have been 15 years' imprisonment, a $25,000 fine, and a special parole term of at least 3 years; for a second offense, it would have been 30 years, $50,000, and at least 6 years' special parole. 21 U.S.C. § 841(b)(1)(A). Only if she were found guilty of engaging in a continuing criminal enterprise in concert with at least five others could she have received a life sentence. 21 U.S.C. § 848. 16 The report's latest annual figures, those for 1975, reflect that San Francisco, Los Angeles, Phoenix, Detroit, Chicago, San Diego, and San Antonio have a higher heroin addict per capita ranking than New York City. Person, Retka, & Woodward, at 8. 17 See U. S. Dept. of Justice, FBI Uniform Crime Reports, Crime in the United States 1977, Table 4 (1978).",a narcotic drug
+125,118188,3,1,"(2) enters . . . , or is at any time found in, the United States [without the Attorney General's consent or the legal equivalent], shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both. (b) Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection— (1) whose deportation was subsequent to a convic- tion for commission of a felony (other than an aggra- vated felony), such alien shall be fined under title 18, imprisoned not more than 5 years, or both; or (2) whose deportation was subsequent to a convic- tion for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 15 years, or both. 8 U. S. C. § 1326 (1988 ed.) (emphasis added). Thus, at the time of the amendment, the operative language of subsection (a)'s ordinary reentering-alien provision said that a reentering alien  shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000. The 1988 amendment, subsection (b), by way of contrast, referred only to punishment—an increased punishment for the felon, or the aggravated felon, whom subsection (a) has described. Although one could read the language, any alien described in [subsection (a)], standing alone, as importing subsection (a)'s elements into new offenses defined in subsection (b), that reading seems both unusual and awkward when taken in context, for the reasons just given. Linguistically speaking, it seems more likely that Congress simply meant to describe an alien who, in the words of the 1988 statute, was guilty of a felony defined in subsection (a) and convict[ed] thereof. As the dissent points out, post, at 265, Congress later struck from subsection (a) the words just quoted, and added in their place the words, shall be fined under title 18, or imprisoned not more than two years. See Immigration Act of 1990 (1990 Act), § 543(b)(3), 104 Stat. 5059. But this amendment was one of a series in the 1990 Act that uniformly updated and simplified the phrasing of various, disparate civil and criminal penalty provisions in the Immigration and Naturalization Act. See, e. g., 1990 Act, § 543(b)(1) (amending 8 U. S. C. § 1282(c)); § 543(b)(2)(C) (amending 8 U. S. C. § 1325); § 543(b)(4) (amending 8 U. S. C. § 1327); § 543(b)(5) (amending 8 U. S. C. § 1328). The section of the Act that contained the amendment is titled Increase in Fine Levels; Authority of the INS to Collect Fines, and the relevant subsection, simply Criminal Fine Levels. 1990 Act, § 543(b), 104 Stat. 5057, 5059. Although the 1990 amendment did have the effect of making the penalty provision in subsection (a) (which had remained unchanged since 1952) parallel with its counterparts in later enacted subsection (b), neither the amendment's language, nor the legislative history of the 1990 Act, suggests that in this housekeeping measure, Congress intended to change, or to clarify, the fundamental relationship between the two subsections. We also note that the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute. Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947); see also INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183, 189 (1991). The title of the 1988 amendment is Criminal penalties for reentry of certain deported aliens. § 7345, 102 Stat. 4471 (emphasis added). A title that contains the word penalties more often, but certainly not always, see post, at 266-267, signals a provision that deals with penalties for a substantive crime. In this instance the amendment's title does not reflect careless, or mistaken, drafting, for the title is reinforced by a legislative history that speaks about, and only about, the creation of new penalties. See S. 973, 100th Cong., 1st Sess. (1987), 133 Cong. Rec. 8771 (1987) (original bill titled, A bill to provide for additional criminal penalties for deported aliens who reenter the United States, and for other purposes); 134 Cong. Rec. 27429 (1988) (section-by-section analysis referring to Senate bill as increasing penalties for unlawful reentry); id., at 27445 (remarks of Sen. D'Amato) (law would increas[e] current penalties for illegal reentry after deportation); id., at 27462 (remarks of Sen. Chiles) (law would impose stiff penalties against deported aliens previously convicted of drug offenses); 133 Cong. Rec. 28840— 28841 (1987) (remarks of Rep. Smith) (corresponding House bill creates three-tier penalty structure). The history, to our knowledge, contains no language at all that indicates Congress intended to create a new substantive crime. Finally, the contrary interpretation—a substantive criminal offense—risks unfairness. If subsection (b)(2) sets forth a separate crime, the Government would be required to prove to the jury that the defendant was previously deported subsequent to a conviction for commission of an aggravated felony. As this Court has long recognized, the introduction of evidence of a defendant's prior crimes risks significant prejudice. See, e. g., Spencer v. Texas, 385 U. S. 554, 560 (1967) (evidence of prior crimes is generally recognized to have potentiality for prejudice). Even if a defendant's stipulation were to keep the name and details of the previous offense from the jury, see Old Chief v. United States, 519 U. S. 172, 178-179 (1997), jurors would still learn, from the indictment, the judge, or the prosecutor, that the defendant had committed an aggravated felony. And, as we said last Term, there can be no question that evidence of the . . . nature of the prior offense, here, that it was aggravated or serious, carries a risk of unfair prejudice to the defendant. Id., at 185 (emphasis added). Like several lower courts, we do not believe, other things being equal, that Congress would have wanted to create this kind of unfairness in respect to facts that are almost never contested. See, e. g., United States v. Forbes, 16 F. 3d, at 1298-1300; United States v. Rumney, 867 F. 2d 714, 718-719 (CA1 1989); United States v. Brewer, 853 F. 2d 1319, 1324-1325 (CA6 1988) (en banc); United States v. Jackson, 824 F. 2d, at 25-26; Government of Virgin Islands v. Castillo, 550 F. 2d 850, 854 (CA3 1977). In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.","has been deported , and thereafter"
+126,108479,1,1,"Hawaii filed its initial complaint on April 1, 1968, against three of the four respondents. [1] On May 24, 1968, and again on August 19, 1968, Hawaii filed amended complaints. The third amended complaint filed on September 6, 1968, raised for the first time the issue presented herein. That complaint named all four respondents as defendants and charged them with violating the Sherman Act, 26 Stat. 209, 15 U. S. C. § 1, in the following ways: by entering into unlawful contracts; by conspiring and combining to restrain trade and commerce in the sale, marketing, and distribution of refined petroleum products; and by attempting to monopolize and actually monopolizing said trade and commerce. [2] The State sought to recover damages in three distinct capacities: in its proprietary capacity for overcharges for petroleum products sold to the State itself (first count); as parens patriae for similar overcharges paid by the citizens of the State (second count); and as the representative of the class of all purchasers in Hawaii for identical overcharges (third count). The second count read, in relevant part: 18. The above-named plaintiff [Hawaii], [acts] in its capacity as parens patriae, and/or as trustee for the use of its citizens who purchased refined petroleum products, from any defendant or coconspirator herein . . . . 19. The unlawful contracts, combination, conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize, and monopolization have resulted in the plaintiff, . . . and in its citizens, paying more for refined petroleum products than would have been paid in a freely operating competitive market. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens, however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein. Very similar language appeared in the class-action count. In all three counts, the State sought both injunctive and monetary relief. After each of the respondents moved to dismiss the second and third counts of the complaint, the District Court held a hearing to determine the propriety of the State's suing on behalf of its citizens. With respect to count two, the court held that Hawaii has not even alleged an interest in its citizens' claims, much less interest of its own aside from the State's proprietary rights, and granted the motions to dismiss. [3] Viewing the class action as being overlapping, parallel and/or alternative to the parens patriae claim, the court dismissed the third count as well. [4] Hawaii filed its fourth amended complaint on February 27, 1969. This is the complaint with which we are concerned. Count one contains a reiteration of Hawaii's claim that in its proprietary capacity the State paid an excessive price for the petroleum products that it purchased from respondents. Count two states a new parens patriae claim, and count three is drawn as a class action. The parens patriae claim is stated in the following manner: 19. The State of Hawaii, acting through its Attorney General, brings this action by virtue of its duty to protect the general welfare of the State and its citizens, acting herein as parens patriae, trustee, guardian and representative of its citizens, to recover damages for, and secure injunctive relief against, the violations of the antitrust laws hereinbefore alleged. 20. The unlawful contracts, combination and conspiracy in restraint of trade, unlawful combination and conspiracy to monopolize and monopolization, hereinbefore alleged, have injured and adversely affected the economy and prosperity of the State of Hawaii in, among others, the following ways: (a) revenues of its citizens have been wrongfully extracted from the State of Hawaii; (b) taxes affecting the citizens and commercial entities have been increased to affect such losses of revenues and income; (c) opportunity in manufacturing, shipping and commerce have [ sic ] been restricted and curtailed; (d) the full and complete utilization of the natural wealth of the State has been prevented; (e) the high cost of manufacture in Hawaii has precluded goods made there from equal competitive access with those of other States to the national market; (f) measures taken by the State to promote the general progress and welfare of its people have been frustrated; (g) the Hawaii economy has been held in a state of arrested development. 21. Plaintiff has not yet ascertained the precise extent of said damage to itself and its citizens; however, when said amount has been ascertained, plaintiff will ask leave of Court to insert said sum herein. The class-action count is similar to that in the third amended complaint. As in the previous complaint, Hawaii seeks both injunctive and monetary relief in each count. Respondents moved to dismiss the second and third counts, and hearing was again had in the District Court. The class action was dismissed by the court on the ground that under the circumstances . . . , the class action based upon the injury to every individual purchaser of gasoline in the State, . . . in the context of the pleadings, would be unmanageable. [5] In a rather extensive opinion, the court examined the law that has developed concerning suits by a State as parens patriae and denied the motions to dismiss the second count. 301 F. Supp. 982 (1969). Recognizing that the state of the law was unclear, the District Court certified its decision denying the motions to dismiss for an interlocutory appeal pursuant to 28 U. S. C. § 1292 (b). [6] On appeal, the United States Court of Appeals for the Ninth Circuit reversed the decision of the District Court and directed that the second count of the complaint be dismissed. [7] 431 F. 2d 1282 (1970). Certiorari was granted so that we might review this decision. 401 U. S. 936 (1971).",procedural history
+127,108479,1,2,"The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the royal prerogative. Malina & Blechman, Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 65 Nw. U. L. Rev. 193, 197 (1970) (hereinafter Malina & Blechman); State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Col. J. L. & Soc. Prob. 411, 412 (1970) (hereinafter State Protection). These powers and duties were said to be exercised by the King in his capacity as father of the country. [8] Traditionally, the term was used to refer to the King's power as guardian of persons under legal disabilities to act for themselves. [9] For example, Blackstone refers to the sovereign or his representative as the general guardian of all infants, idiots, and lunatics, [10] and as the superintendent of all charitable uses in the kingdom. [11] In the United States, the royal prerogative and the parens patriae function of the King passed to the States. The nature of the parens patriae suit has been greatly expanded in the United States beyond that which existed in England. This expansion was first evidenced in Louisiana v. Texas, 176 U. S. 1 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. 176 U. S., at 19. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized. This Court's acceptance of the notion of parens patriae suits in Louisiana v. Texas was followed in a series of cases: Missouri v. Illinois, 180 U. S. 208 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River); Kansas v. Colorado, 206 U. S. 46 (1907) (holding that Kansas was permitted to sue as parens patriae to enjoin the diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties); New York v. New Jersey, 256 U. S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas); and North Dakota v. Minnesota, 263 U. S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream). These cases establish the right of a State to sue as parens patriae to prevent or repair harm to its quasisovereign interests. [12] They deal primarily with original suits brought directly in this Court pursuant to Art. III, § 2, of the Constitution under common-law rights of action. The question in this case is not whether Hawaii may maintain its lawsuit on behalf of its citizens, but rather whether the injury for which it seeks to recover is compensable under § 4 of the Clayton Act. Hence, Hawaii's claim cannot be resolved simply by reference to any general principles governing parens patriae actions. The only time this Court has ever faced the question of what relief, if any, the antitrust laws offer a State suing as parens patriae was in Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), the case relied on most heavily by the parties herein. In that case, Georgia sought to invoke the original jurisdiction of this Court by filing an amended bill of complaint against 20 railroads, alleging, in essence, that the railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other States (particularly Northern States) to the detriment of Georgia shippers. Like this suit, Georgia arose under the federal antitrust laws. It is plain from the face of the complaint that [t]he prayer [was] for damages and for injunctive relief. 324 U. S., at 445. See id., at 446-447, 450-451. [13] Georgia claimed that the conspiracy had severely damaged its economy and sought to recover damages on behalf of its citizens. The Court upheld Georgia's claim as parens patriae with respect to injunctive relief, but had no occasion to consider whether the antitrust laws also authorized damages for an injury to the State's economy, since approval of the challenged rates by the Interstate Commerce Commission barred a damage recovery on the ground that such a remedy would have given Georgia shippers an unfair advantage over shippers from other States. See Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156 (1922). Nowhere in Georgia did the Court address itself to the question whether § 4 of the Clayton Act authorizes damages for an injury to the general economy of a State. Thus, the question presented here is open.",the state as parens patriae
+128,108479,1,3,"Hawaii grounds its claim for treble damages in § 4 of the Clayton Act, 15 U. S. C. § 15, which reads: Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee. This section is notably different from § 16 of the Clayton Act, 15 U. S. C. § 26, which provides for injunctive relief: Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws . . . when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings . . . . Hawaii plainly qualifies as a person under both sections of the statute, whether it sues in its proprietary capacity or as parens patriae. Georgia v. Pennsylvania R. Co., 324 U. S., at 447. But the critical question is whether the injury asserted by Hawaii in its parens patriae count is an injury to its business or property. The legislative history of the Sherman and Clayton Acts is not very instructive as to why Congress included the business or property requirement in § 4, but not in § 16. The most likely explanation lies in the essential differences between the two remedies. While the United States Government, the governments of each State, and any individual threatened with injury by an antitrust violation may all sue for injunctive relief against violations of the antitrust laws, and while they may theoretically do so simultaneously against the same persons for the same violations, the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one. This case illustrates the point well. The parties are in virtual agreement that whether or not Hawaii can sue for injunctive relief as parens patriae is of little consequence so long as it can seek the same relief in its proprietary capacity. While some theoretical differences may exist with respect to the parties capable of enforcing a parens patriae injunction as opposed to one secured by a State in its proprietary capacity, these differences are not crucial to the defendant in an antitrust case. The position of a defendant faced with numerous claims for damages is much different. If the defendant is sued by 100 different persons or by one person with 100 separate but cumulative claims, and each claim is for damages, the potential liability is obviously far greater than if only one of those persons sued on only one claim. Thus, there is a striking contrast between the potential impact of suits for injunctive relief and suits for damages. Every violation of the antitrust laws is a blow to the free-enterprise system envisaged by Congress. See Northern Pacific R. Co. v. United States, 356 U. S. 1, 4 (1958). This system depends on strong competition for its health and vigor, and strong competition depends, in turn, on compliance with antitrust legislation. In enacting these laws, Congress had many means at its disposal to penalize violators. It could have, for example, required violators to compensate federal, state, and local governments for the estimated damage to their respective economies caused by the violations. But, this remedy was not selected. Instead, Congress chose to permit all persons to sue to recover three times their actual damages every time they were injured in their business or property by an antitrust violation. By offering potential litigants the prospect of a recovery in three times the amount of their damages, Congress encouraged these persons to serve as private attorneys general. See, e. g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 130-131 (1969); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 147 (1968) (Fortas, J., concurring in result). Thus, § 4 permits Hawaii to sue in its proprietary capacity for three times the damages it has suffered from respondents' alleged antitrust violations. [14] The section gives the same right to every citizen of Hawaii with respect to any damage to business or property. Were we, in addition, to hold that Congress authorized the State to recover damages for injury to its general economy, we would open the door to duplicative recoveries. A large and ultimately indeterminable part of the injury to the general economy, as it is measured by economists, is no more than a reflection of injuries to the business or property of consumers, for which they may recover themselves under § 4. Even the most lengthy and expensive trial could not, in the final analysis, cope with the problems of double recovery inherent in allowing damages for harm both to the economic interests of the State. At the very least, if the latter type of injury is to be compensable under the antitrust laws, we should insist upon a clear expression of a congressional purpose to make it so, and no such expression is to be found in § 4 of the Clayton Act. Like the lower courts that have considered the meaning of the words business or property, we conclude that they refer to commercial interests or enterprises. See, e. g., Roseland v. Phister Mfg. Co., 125 F. 2d 417 (CA7 1942); Hamman v. United States, 267 F. Supp. 420 (Mont. 1967), appeal dismissed, 399 F. 2d 673 (CA9 1968); Broadcasters, Inc. v. Morristown Broadcasting Corp., 185 F. Supp. 641 (NJ 1960). When the State seeks damages for injuries to its commercial interests, it may sue under § 4. But where, as here, the State seeks damages for other injuries, it is not properly within the Clayton Act. Support for this reading of § 4 is found in the legislative history of 15 U. S. C. § 15a, [15] which is the only provision authorizing recovery in damages by the United States, and which limits that recovery to damages to business or property. The legislative history of that provision makes it quite plain that the United States was authorized to recover, not for general injury to the national economy or to the Government's ability to carry out its functions, but only for those injuries suffered in its capacity as a consumer of goods and services. The United States is, of course, amply equipped with the criminal and civil process with which to enforce the antitrust laws. The proposed legislation, quite properly, treats the United States solely as a buyer of goods and permits the recovery of the actual damages suffered. S. Rep. No. 619, 84th Cong., 1st Sess., 3 (1955). See also H. R. Rep. No. 422, 84th Cong., 1st Sess., 2-5 (1955). In light of the language used as well as the legislative history of 15 U. S. C. § 15a, it is manifest that the United States cannot recover for economic injuries to its sovereign interests, as opposed to its proprietary functions. And the conclusion is nearly inescapable that § 4, which uses identical language, does not authorize recovery for economic injuries to the sovereign interests of a State. We note in passing the State's claim that the costs and other burdens of protracted litigation render private citizens impotent to bring treble-damage actions, and thus that denying Hawaii the right to sue for injury to her quasi-sovereign interests will allow antitrust violations to go virtually unremedied. Private citizens are not as powerless, however, as the State suggests. Congress has given private citizens rights of action for injunctive relief and damages for antitrust violations without regard to the amount in controversy. 28 U. S. C. § 1337; 15 U. S. C. § 15. Rule 23 of the Federal Rules of Civil Procedure provides for class actions that may enhance the efficacy of private actions by permitting citizens to combine their limited resources to achieve a more powerful litigation posture. The District Court dismissed Hawaii's class action only because it was unwieldy; it did not hold that a State could never bring a class action on behalf of some or all of its consumer citizens. Respondents, in moving to dismiss count three of the fourth amended complaint, in which the State sought to bring such an action, virtually conceded that class actions might be appropriate under certain circumstances. The fact that a successful antitrust suit for damages recovers not only the costs of the litigation, but also attorney's fees, should provide no scarcity of members of the Bar to aid prospective plaintiffs in bringing these suits. Parens patriae actions may, in theory, be related to class actions, but the latter are definitely preferable in the antitrust area. Rule 23 provides specific rules for delineating the appropriate plaintiff-class, establishes who is bound by the action, and effectively prevents duplicative recoveries. The judgment of the Court of Appeals is affirmed for the reasons stated above. So ordered. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.",hawaii and the antitrust laws
+129,107262,1,1,"Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer's conclusion that the driver was under the influence of alcohol. There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment. There, however, the driver was unconscious at the time the blood was withdrawn and hence had no opportunity to object to the procedure. We affirmed the conviction there resulting from the use of the test in evidence, holding that under such circumstances the withdrawal did not offend that `sense of justice' of which we spoke in Rochin v. California, 342 U. S. 165. 352 U. S., at 435. Breithaupt thus requires the rejection of petitioner's due process argument, and nothing in the circumstances of this case [4] or in supervening events persuades us that this aspect of Breithaupt should be overruled.",the due process clause claim.
+130,107262,1,2,"Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to be compelled in any criminal case to be a witness against himself, citing Twining v. New Jersey, 211 U. S. 78. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U. S. 1, 8. We there held that [t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement —the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence. We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner's privilege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, [5] and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purposes of the privilege. The critical question, then is whether petitioner was thus compelled to be a witness against himself. [6] If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated. In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege: All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government—state or federal —must accord to the dignity and integrity of its citizens. To maintain a `fair state-individual balance,' to require the government `to shoulder the entire load' . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the inviolability of the human personality. Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused by its own independent labors. As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through the cruel, simple expedient of compelling it from his own mouth. . . . In sum, the privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.'  Ibid. The leading case in this Court is Holt v. United States, 218 U. S. 245. There the question was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege. Mr. Justice Holmes, speaking for the Court, rejected the argument as based upon an extravagant extension of the Fifth Amendment, and went on to say: [T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. 218 U. S., at 252-253. [7] It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U. S. 616. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. [8] The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling communications or testimony, but that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it. Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain physical evidence, for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege is as broad as the mischief against which it seeks to guard, Counselman v. Hitchcock, 142 U. S. 547, 562. In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. [9] Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.",the privilege against self-incrimination claim.
+131,107262,1,3,"This conclusion also answers petitioner's claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, he was denied his Sixth Amendment right to the assistance of counsel. Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel's advice, to be left inviolate. No issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented. The limited claim thus made must be rejected.",the right to counsel claim.
+132,107262,1,4,"In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. Colorado, 338 U. S. 25. That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment's provisions. We have since overruled Wolf in that respect, holding in Mapp v. Ohio, 367 U. S. 643, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U. S. 383, must also be applied in criminal prosecutions in state courts. The question is squarely presented therefore, whether the chemical analysis introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure. The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized [t]he security of one's privacy against arbitrary intrusion by the police as being at the core of the Fourth Amendment and basic to a free society. 338 U. S., at 27. We reaffirmed that broad view of the Amendment's purpose in applying the federal exclusionary rule to the States in Mapp. The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect. History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment expressly provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of persons, and depend antecedently upon seizures of persons, within the meaning of that Amendment. Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers—houses, papers, and effects—we write on a clean slate. Limitations on the kinds of property which may be seized under warrant, [10] as distinct from the procedures for search and the permissible scope of search, [11] are not instructive in this context. We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness. In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor. [12] The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were bloodshot, watery, sort of a glassy appearance. The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence. While early cases suggest that there is an unrestricted right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime, Weeks v. United States, 232 U. S. 383, 392; People v. Chiagles, 237 N. Y. 193, 142 N. E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors—first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U. S. 56, 72-73 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment's purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N. Y., at 197-198, 142 N. E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body's surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search. Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Johnson v. United States, 333 U. S. 10, 13-14; see also Aguilar v. Texas, 378 U. S. 108, 110-111. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great. The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence, Preston v. United States, 376 U. S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest. Similarly, we are satisfied that the test chosen to measure petitioner's blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U. S., at 436, n. 3. Such tests are a commonplace in these days of periodic physical examinations [13] and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the breathalyzer test petitioner refused, see n. 9, supra. We need not decide whether such wishes would have to be respected. [14] Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain. We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. Affirmed.",the search and seizure claim.
+133,117896,2,1,"MPPAA helps solve a problem that became apparent after Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq. ERISA helped assure private-sector workers that they would receive the pensions that their employers had promised them. See, e. g., Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 605-609 (1993). To do so, among other things, ERISA required employers to make contributions that would produce pension plan assets sufficient to meet future vested pension liabilities; it mandated termination insurance to protect workers against a plan's bankruptcy; and, if a plan became insolvent, it held any employer who had withdrawn from the plan during the previous five years liable for a fair share of the plan's underfunding. See 26 U. S. C. § 412 (minimum funding standards); 29 U. S. C. § 1082 (same); 29 U. S. C. § 1301 et seq. (termination insurance); 29 U. S. C. § 1364 (withdrawal liability). Unfortunately, this scheme encouraged an employer to withdraw from a financially shaky plan and risk paying its share if the plan later became insolvent, rather than to remain and (if others withdrew) risk having to bear alone the entire cost of keeping the shaky plan afloat. Consequently, a plan's financial troubles could trigger a stampede for the exit doors, thereby ensuring the plan's demise. See Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 216 (1986); Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 722-723, n. 2 (1984); see also 29 U. S. C. § 1001a(a)(4); H. R. Rep. No. 96-869, pt. 1, pp. 54-55 (1980); D. McGill & D. Grubbs, Fundamentals of Private Pensions 618-619 (6th ed. 1989). MPPAA helped eliminate this problem by changing the strategic considerations. It transformed what was only a risk (that a withdrawing employer would have to pay a fair share of underfunding) into a certainty. That is to say, it imposed a withdrawal charge on all employers withdrawing from an underfunded plan (whether or not the plan later became insolvent). And, it set forth a detailed set of rules for determining, and collecting, that charge.",MPPAA's General Purpose
+134,117896,2,2,"The way in which MPPAA calculates interest is related to the way in which that statute answers three more general, and more important, questions: First, how much is the withdrawal charge? MPPAA's lengthy charge-determination section, § 1391, sets forth rules for calculating a withdrawing employer's fair share of a plan's underfunding. See 29 U. S. C. § 1391. It explains (a) how to determine a plan's total underfunding; and (b) how to determine an employer's fair share (based primarily upon the comparative number of that employer's covered workers in each earlier year and the related level of that employer's contributions). One might expect § 1391 to calculate a withdrawal charge that equals the withdrawing employer's fair share of a plan's underfunding as of the day the employer withdraws. But, instead, § 1391 instructs a plan to make the withdrawal charge calculation, not as of the day of withdrawal, but as of the last day of the plan year preceding the year during which the employer withdrew —a day that could be up to a year earlier. See §§ 1391(b)(2)(A)(ii), (b)(2)(E)(i), (c)(2)(C)(i), (c)(3)(A), and (c)(4)(A). Thus (assuming for illustrative purposes that a plan's bookkeeping year and the calendar year coincide), the withdrawal charge for an employer withdrawing from an underfunded plan in 1981 equals that employer's fair share of the underfunding as calculated on December 31, 1980, whether the employer withdrew the next day (January 1, 1981) or a year later (December 31, 1981). The reason for this calculation date seems one of administrative convenience. Its use permits a plan to base the highly complex calculations upon figures that it must prepare in any event for a report required under ERISA, see 29 U. S. C. § 1082(c) (9), thereby avoiding the need to generate new figures tied to the date of actual withdrawal. Second, how may the employer pay the withdrawal charge? The statute sets forth two methods: (a) payment in a lump sum; and (b) payment in installments. The statute's lump-sum method is relatively simple. A withdrawing employer may pay the entire liability when the first payment falls due; pay installments for a while and then discharge its remaining liability; or make a partial balloon payment and afterwards pay installments. See 29 U. S. C. § 1399(c)(4). The statute's installment method is more complex. The statutory method is unusual in that the statute does not ask the question that a mortgage borrower would normally ask, namely, what is the amount of each of my monthly payments? What size monthly payment will amortize, say, a 7% 30-year loan of $100,000? Rather, the statute fixes the amount of each payment and asks how many such payments there will have to be. To put the matter more precisely, (1) the statute fixes the amount of each annual payment at a level that (roughly speaking) equals the withdrawing employer's typical contribution in earlier years; (2) it sets an interest rate, equal to the rate the plan normally uses for its calculations; and (3) it then asks how many such annual payments it will take to amortize the withdrawal charge at that interest rate. 29 U. S. C. §§ 1399(c)(1)(A)(i), (c)(1)(A)(ii), (c)(1)(C). It is as if Brown, who owes Smith $1,000, were to ask, not, How much must I pay each month to pay off the debt (with 7% interest) over two years?—but, rather, Assuming 7% interest, how many $100 monthly payments must I make to pay off that debt? To bring the facts closer to those of this case, assume that an employer withdraws from an underfunded plan in mid-1981; that the withdrawal charge (calculated as of the end of 1980) is $23.3 million; that the employer normally contributes about $4 million per year to the plan; and that the plan uses a 7% interest rate. In that case, the statute asks: How many annual payments of about $4 million does it take to pay off a debt of $23.3 million if the interest rate is 7%? The fact that the statute poses the installment-plan question in this way, along with an additional feature of the statute, namely, that the statute forgives all debt outstanding after 20 years, 29 U. S. C. § 1399(c)(1)(B), suggests that maintaining level funding for the plan is an important goal of the statute. The practical effect of this concern with maintaining level payments is that any amortization interest § 1399(c)(1)(A)(i) may cause to accrue is added to the end of the payment schedule (unless forgiven by § 1399(c)(1)(B)). Third, when must the employer pay? The statute could not make the employer pay the calculated sum (or begin to pay that sum) on the date in reference to which one calculates the withdrawal charge, for that date occurs before the employer withdraws. (It is the last day of the preceding plan year, i. e., December 31, 1980, for an employer who withdraws in 1981.) The statute, of course, might make the withdrawing employer pay (or begin payment) on the date the employer actually withdraws. But, it does not do so. Rather, the statute says that a plan must draw up a schedule for payment and demand payment as soon as practicable after withdrawal. 29 U. S. C. § 1399(b)(1). It adds that [w]ithdrawal liability shall be payable . . . no more than 60 days after the date of the demand. § 1399(c)(2). Thus, a plan that calculates quickly might demand payment the day after withdrawal and make the charge payable within 60 days thereafter. A plan that calculates slowly might not be able to demand payment for many months after withdrawal. For example, in the case of the employer who withdraws on August 14, 1981, incurring a withdrawal charge of $23.3 million (calculated as of December 31, 1980), the lump sum of $23.3 million, or the first of the installment payments of roughly $4 million, will become payable to the plan no later than 60 days after the plan sent the withdrawing employer a demand letter. The day of the first payment may thus come as soon as within 60 days after August 15, 1981, or it may not come for many months thereafter, depending upon the plan's calculating speed.",MPPAA's Basic Approach
+135,117896,2,3,"The facts of this case approximate those of our example. Three brewers, Schlitz, Pabst, and Miller, contributed for many years to a multiemployer pension plan (Plan). On August 14, 1981, Schlitz withdrew from the Plan. See App. 151-152. By the end of September 1981, the Plan completed its calculations, created a payment schedule, and sent out a demand for payment (thereby making the first installment payment payable) on or before November 1, 1981. Id., at 153, 154. From the outset, the parties agreed that the annual installment payment amounted to $3,945,481, and that the relevant interest rate was 7% per year. After various controversies led to arbitration and a court proceeding between Schlitz and the Plan, the courts and parties eventually determined that the withdrawal charge (calculated as of the last day of the previous plan-bookkeeping year, December 31, 1980) amounted to $23.3 million. But the parties disagreed whether interest accrued during 1981, the year in which Schlitz withdrew. The Plan claimed that, for purposes of calculating the installment schedule, interest started accruing on the last day of the plan year preceding withdrawal (December 31, 1980). Schlitz, on the other hand, argued that accrual began on the first day of the plan year following withdrawal (January 1, 1982). Under either reading, the number of annual payments is eight. But, under the Plan's reading, the final payment would amount to $3,499,361, whereas, in Schlitz's reading, that payment would amount to $880,331. The arbitrator in this case agreed with Schlitz's reading. See 9 EBC 2385, 2405 (1988). The District Court, reviewing the arbitration award, disagreed, No. 88—C-908 (ED Wis., June 6, 1991), reprinted in App. 25, 62-69, but the Court of Appeals for the Seventh Circuit reversed the District Court, 3 F. 3d 994 (1993). Because the Seventh Circuit's decision conflicts with a holding of the Third Circuit, Huber v. Casablanca Industries, Inc., 916 F. 2d 85, 95-100 (1990), cert. dism'd, 506 U. S. 1088 (1993), this Court granted certiorari, 512 U. S. 1234 (1994). Our conclusion, like that of the Seventh Circuit, is that, for purposes of computation, interest does not start accruing until the beginning of the plan year after withdrawal.",This Case
+136,88492,1,1,"This joint resolution being in force, several persons, named respectively Fitzpatrick, Hall, Bohn, Lytle, Holbrook, La Rieu, Richards, and Newman, and whose salaries were all less than $3500, filed their petitions; each setting forth facts, which, if true, brought him within the act, and each claiming the 20 per cent. additional. By the finding of the Court of Claims it appeared that Fitzpatrick was an employ e in the office of the Commissioner of Public Buildings, as keeper of the western gate of the Capitol; that Hall was an employ e in the office of the Commissioner of Public Buildings, in that part of the Capitol called the crypt; that Bohn was an employ e in the office of the Commissioner of Public Buildings, as a laborer on the public grounds; that Lytle was an employ e in the office of the Commissioner of Public Buildings, as watchman in the east grounds of the Capitol; that Holbrook was an employ e in the office of the Commissioner of Public Buildings, as watchman at the stables; that La Rieu was an employ e in the same office, as watchman in the Smithsonian grounds; that Richards was an employ e in the same office, as watchman on the Capitol dome; and Newman was an employ e in the same office, as captain of the Capitol police.",fitzpatrick's and seven other cases.
+137,88492,1,2,"About the same time one Miller filed a petition in the Court of Claims, alleging that he had been as clerk and employ e in the office of the Capitol Extension, assigned to duty as foreman of construction, receiving a salary of $1800; that he was in the civil service of the United States at Washington, and that he was thus entitled to an addition of 20 per cent. on his salary, under the joint resolution above quoted, and asking judgment against the United States therefor. The United States opposed the demand. The court found as fact: 1. That the claimant was appointed foreman of carpenters by the Secretary of the Interior Department, March 1st, 1866, at a salary of $1800 per annum, and was in the service of the United States, in connection with Capitol Extension , at Washington, D. C., continuously from June 30th, 1866, to June 30th, 1867, inclusive, at the said salary. 2. That he was paid monthly, as in the case of other salaried officers; that he received materials for the work upon the Capitol building; made up daily reports; had charge of workmen, and performed such duties as were assigned him by the architect of the Capitol Extension, and was paid out of the said fund as the architect of the Capitol Extension, clerks, and others connected with said work, viz., the appropriation for the Capitol Extension. No other facts than those above mentioned were found by the court. The counsel of the United States, however, after adverting to the fact that the findings contradicted an averment of the petitioner of a matter within his own knowledge, they finding that he was appointed foreman of carpenters March 1st, 1866, at a salary of $1800 per annum, and the counsel stating—by way of reconciling the discrepancy—that prior to March 1st, 1866, the claimant was employed in the same capacity as thereafterwards, but at a compensation of only $5 per day of actual employment, that is, exclusive of Sundays, or about $1500 per annum; and that the Secretary of the Interior, on March 1st, 1866, wrote the following letter:'DEPARTMENT OF THE INTERIOR, 'WASHINGTON, D. C. March 2d, 1866. 'SIR: You are hereby authorized, from and after the 1st of the present month, to pay George Miller, timekeeper, &c., on the Capitol Extension, at the rate of $150 per month, for the time actually employed, until further orders. 'I am, sir, very respectfully, your obedient servant, 'JAMES HARLAN, 'Secretary.' 'DR. WM. S. MARSH, Disbursing Agent, Capitol Extension.'",miller's case.
+138,88492,1,3,"Near about the same time one Manning filed a petition with a purpose similar to that with which the others filed theirs. The court found that the claimant was employed as watchman or guard at the jail in Washington, for one year, at a salary of $1200 per year, paid to him monthly by the disbursing officer of the Department of the Interior. His pay was fixed at this rate by the Secretary of the Interior, under act of Congress which place the jail under the supervision of the Department of the Interior. The Court of Claims gave a decree for the claimants in all of the cases, and the United States appealed in all. Mr. C. H. Hill, Assistant Attorney-General, for the United States, (Messrs. L. P. Poland and N. P. Chipman, contra ,) argued:",manning's case.
+139,88492,1,4,"That none of these claimants were 'employed in the civil service at Washington,' which it was indispensable that any one claiming under the joint resolution should be. No officer, clerk, messenger, watchman, enlisted man, or employ e being entitled unless within that special class; a class which not only excluded the military and naval branches, but which, in reference to the civil branch, comprises only those persons who fill some office or hold some appointment established by law. That the findings of the Court of Claims that the persons were ' employees ,' were not findings of fact, but findings of law, and therefore not findings proper for the court to have made as the basis of its conclusions; that being findings of law they were re-examinable in this court; that thus re-examined it was plain that the word employees being found in the phrase, 'all other clerks and employees,' was to be regarded as meaning employees whose duties were clerical; moreover that the 'employees' meant to be favored were 'employees' in the office of the Commissioner of Public Buildings, &c.; that is to say, employees having appointments as officers in the edifice appropriated to the commissioner, &c.","in regard to fitzparick and the seven other claimants,"
+140,88492,1,5,"That the claimant was not in in civil service, nor even an appointee of the Secretary of the Interior; that the letter of March 2d, 1866, was not an appointment but a mere order for an increase of pay; that the letter showed that the claimant was in the service of the United States, 'in connection with the Capitol Extension,' and not an 'employ e in the Capitol Extension.' Of course he was not an employ e in any other of the departments.","in regard to miller,"
+141,88492,1,6,"That he did not show that he was an employ e in any one of the departments, or in any bureau or division thereof, or in any office named in the resolution; his appointment was not authorized by statute, nor is his compensation prescribed by an appropriation act; that neither his employment nor his compensation being known to any act of Congress, he was not to be regarded as an employ e in the civil service at Washington.","in regard to manning,"
+142,110721,2,1,"5 2. The objections to accountings previously filed are sustained to the extent recommended in the Report of the Special Master. 6 3. All accountings required by the Court's Decree of June 22, 1981, have been made and, as supplemented by the ruling on the objections thereto, are now approved. 7 4. The United States is directed forthwith to pay over to the State of Louisiana the outstanding sum of $3,251,609.76. 8 5. After the payment directed by paragraph 4 above, neither party shall be accountable to the other for any further payment in respect of the matters in controversy in these proceedings between the United States and the State of Louisiana. 9 6. Upon receipt by the State of Louisiana of the payment directed by paragraph 4, above, the Interim Agreement of October 12, 1956, shall be deemed terminated for all purposes and all sums remaining in the impounded fund account established pursuant to that Agreement are unconditionally released to the United States. 10 7. The account submitted by the Special Master is approved and the balance owing to him shall be paid in equal shares by the United States and the State of Louisiana. 11 8. The Special Master is discharged in this case insofar as the proceedings involve the controversy between the United States and the State of Louisiana. 12 Justice MARSHALL took no part in the consideration or decision of this order.",The Final Report of the Special Master is received and ordered filed.
+143,109287,1,1,"In applying the antitrust laws to banking, careful account must be taken of the pervasive federal and state regulation characteristic of the industry, particularly the legal restraints on entry unique to this line of commerce. United States v. Marine Bancorporation, 418 U. S. 602, 606. This admonition has special force in the present case, for the de facto branch arrangements and the proposed acquisitions involved here were a direct response to Georgia's historic restrictions on branch banking. Before 1927 Georgia permitted statewide branching, and C&S National, then as now headquartered in Savannah, established three branches in the city of Atlanta. In 1927, state law was changed to prohibit all branching. [3] C&S therefore decided to expand through the formation of a bank holding company. C&S Holding was founded in 1928, and between 1946 and 1954 this company purchased two banks, and founded a third, in the Atlanta area. But in 1956 Georgia again altered its statutes to prohibit a bank holding company from acquiring more than 15 percent of a bank's stock. Georgia Bank Holding Company Act, 1 Ga. Laws 1956, pp. 309-312. A 1960 amendment, still in force, reduced the maximum ownership level to 5 percent. Ga. Code Ann. 13-207 (a) (2) (1967 ed. and Supp. 1974). By the 1950's, C&S National was interested primarily in suburban expansion. The Atlanta city limits had been frozen since 1952, and the area's economic and population growth consequently occurred primarily outside the city's boundaries. Between 1959 and 1969, C&S Holding accordingly established in the Atlanta suburbs (in DeKalb and Fulton Counties) the six 5-percent banks at issue in this case. Five of these banks were founded under the sponsorship of C&S; the sixth, the Tucker Bank, had long been an independent suburban bank when, in 1965, C&S converted it into a 5-percent bank. [4] Each of these six banks was made a correspondent associate bank within the C&S system. This status involved many different relationships between the 5-percent bank and C&S: In addition to the 5-percent stock held by C&S Holding, substantial shares were also held by officers, shareholders, and friendly customers of other C&S banks, and by their family members. It was understood from the outset that the 5-percent banks would be acquired outright by C&S as soon as the law permitted. From at least 1965 on, the 5-percent banks used the C&S logogram on their buildings, papers, and correspondence. C&S filed the charter applications of the 5-percent banks and openly assured the banks of full financial support, assurances which were often instrumental in securing regulatory approval of their creation. C&S chose the principal executive officer for each 5-percent bank. The employees of these banks were accorded the same pension and promotion rights in the C&S system as possessed by their colleagues at C&S National and its de jure affiliates. C&S selected the location of, and oversaw the selection of directors for, the suburban banks. A C&S executive served as an advisory director to each suburban bank. C&S conducted surprise audits and credit checks at the suburban banks. Each of the suburban banks provided the full panoply of C&S banking services, and customers of any 5-percent bank could avail themselves of these services at any of the other 5-percent banks, or at C&S National and its de jure branches. C&S supplied to each 5-percent bank, through manuals and memoranda, a large quantity of information concerning every conceivable banking procedure and problem. Included were data—stamped for information only—concerning interest rates and service charges employed by C&S National and its de jure branches, but each 5-percent bank was cautioned to use its own judgment in setting interest rates and service charges. In sum, it is fair to say—and the parties agree—that in almost every respect save corporate form, each of the 5-percent banks was a de facto branch of C&S National. Between 1966 and 1968, the Federal Reserve Board investigated C&S's network of correspondent associate banks. The purpose of the investigation was to determine whether C&S was exerting such control over the 5-percent banks as to require special approval of the Federal Reserve Board pursuant to § 3 of the Bank Holding Company Act of 1956, as amended. 12 U. S. C. § 1842. The investigation ended in an understanding between the Board's staff and C&S that the correspondent associate program, as the staff understood it, did not require formal approval. [5] The Justice Department participated in this investigation, and took no action of any kind inconsistent with this understanding. In 1970 Georgia amended its banking statutes to permit de jure branching within any county in which a bank already had an office. Ga. Code Ann. 13-203.1 (a) (Supp. 1974). This allowed C&S National to branch into those Atlanta suburbs which—like the city of Atlanta—are within the confines of DeKalb and Fulton Counties. C&S decided to convert the six 5-percent banks at issue here into de jure branches. C&S applied to the FDIC for permission to acquire all of the assets, and to assume all of the liabilities, of the 5-percent banks. [6] On October 4, 1971, after reviewing reports on the proposed acquisitions from the Federal Reserve Board, the Comptroller of the Currency, and the Justice Department, the FDIC approved C&S's acquisition of the five suburban banks which C&S had helped to found, but disapproved acquisition of the Tucker Bank. Because the Tucker Bank had enjoyed an independent existence before being converted into a 5-percent bank, the FDIC concluded that the correspondent associate affiliation there had been anticompetitive in its origins and should not be ratified by approval of outright acquisition. [7] As for the five banks which C&S had helped to found, however, the FDIC stated: [T]he opening of these . . . de novo banks served the convenience and needs of their respective communities and enhanced competition . . . . The FDIC noted that the C&S system was the largest commercial banking institution in Fulton County and in DeKalb County. [8] For this reason, it observed, new acquisitions of nonaffiliated banks in the same market [by C&S] would raise the most serious competitive problems under the Bank Merger Act as amended and under Section 7 of the Clayton Act. But the FDIC reasoned that the acquisitions proposed by C&S did not raise such problems because the banks involved in the proposed mergers do not compete today and never have competed: further, there existed no reasonable probability that any of the 5-percent banks would break their ties with the C&S system even if the proposed acquisitions were disapproved. Thus, [s]uch mergers would not alter the existing competitive structure . . . in any way or add to the concentration of banking resources now held by the C&S system.",The Background of This Litigation
+144,109287,1,2,"On November 2, 1971, within the 30-day period prescribed for such suits, 12 U. S. C. §§ 1828 (c) (6) and (7), the United States filed a complaint in the District Court for the Northern District of Georgia, alleging that the five acquisitions approved by the FDIC would violate § 7 of the Clayton Act and that the ongoing correspondent associate relationships between C&S and the six 5-percent banks which it had originally sought to acquire constituted unreasonable restraints of trade, in violation of § 1 of the Sherman Act. The Government sought injunctive relief prohibiting the proposed acquisitions and terminating the alleged violations of the Sherman Act. On January 24, 1974, after an extensive trial, the District Court entered a judgment for the defendants. 372 F. Supp. 616, 643. As to the Sherman Act allegations, the District Court based its judgment upon two separate and independent grounds. First, it held that the 1968 understanding between the staff of the Federal Reserve Board and C&S insulated the correspondent associate relationship between C&S and the 5-percent banks from attack under the antitrust laws. Id., at 627. The court based this conclusion on the following statement in Whitney Bank v. New Orleans Bank, 379 U. S. 411, 419: We believe Congress intended the statutory proceedings before the [Federal Reserve] Board to be the sole means by which questions as to the organization or operation of a new bank by a bank holding company may be tested. Alternatively, assuming the Sherman Act applied, the District Court found that the United States had failed to prove that the correspondent associate relationships involved collusive price fixing or any agreements not to compete or for market division. [9] The court held that the matters complained of are subject to the `rule of reason,' [and] . . . the Government has not sustained its burden of proof as to the unreasonableness of the practices involved or with respect to any adverse impact upon competition. 372 F. Supp., at 627-628. The Government had conceded that it was no violation of the Sherman Act for a large city bank to arrange a traditional correspondent relationship with a smaller, outlying bank—a  `mutually beneficial arrangement whereby the smaller bank receives needed services and the larger bank obtains both the benefit of the correspondent bank balance kept with it and the income from the sale of its services to the smaller bank's customers.'  Id., at 628. Noting this concession, the District Court observed: [S]uch assistance to, or sponsorship of, a smaller bank, is desirable and necessary and not anticompetitive. The difference between a pure correspondent relationship and a correspondent associate relationship as set forth in the evidence is merely one of degree, a fine line of demarcation almost impossible for the Court to perceive. . . . . . . [T]he Court finds as a fact that the relationship between C&S National, C&S Holding, and the five percent defendant banks, and the interchange of information between them, have been reasonable under the circumstances and not in violation of Section 1 of the Sherman Act. Ibid. Turning to the claim under § 7 of the Clayton Act, the court found that the various defendant banks were each engaged in commerce and that the relevant line of commerce was commercial banking. The court declined, however, to define the appropriate geographic markets, stating that its disposition of the case is based upon factors which make a precise delineation of the market area unnecessary. 372 F. Supp., at 629. Simply assuming the correctness of the Government's position that the appropriate markets were DeKalb County, Fulton County, North Fulton County, or the Atlanta area generally, the court made detailed findings as to the effect of the proposed acquisitions on C&S's nominal market shares. Id., at 629-633. [10] But, just as had the FDIC before it, the court saw these increases in nominal shares as of no competitive significance because the 5-percent banks had always been de facto branches within the C&S system. Id., at 633-638. [11]",The Suit in the District Court
+145,109287,1,3,"It is common ground in this case that the 5-percent banks have been operated from the outset substantially as de facto branches of C&S, even though they are and have always been separate corporate entities. From these agreed-upon facts, the parties draw sharply divergent conclusions under the Sherman and Clayton Acts. Section 1 of the Sherman Act, 15 U. S. C. § 1, provides: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States . . . is declared to be illegal. . . . The Government contends that the relationships between C&S and the six 5-percent banks constituted unreasonable restraints of trade on two alternative theories: (1) The relationships encompassed an agreement to fix interest rates and service charges among the 5-percent banks, and between these banks and C&S-owned banks, resulting in a per se violation of the Sherman Act (2) The programs unreasonably restrained interbank competition, as to prices and services, by extending interbank cooperation far beyond the conventional correspondent arrangements which large city banks traditionally make with small banks in outlying markets. C&S denies that its relationships with the 5-percent banks encompassed any agreements to fix prices and contends that the process of de facto branching was a procompetitive response to Georgia's anticompetitive ban on de jure branching, and thus legal under the Sherman Act's rule of reason. In the alternative, C&S contends that its relationships with the 5-percent banks were subject to the exclusive primary jurisdiction of the Federal Reserve Board and thus immune from attack under § 1 of the Sherman Act. Section 7 of the Clayton Act, 15 U. S. C. § 18, provides: No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. [12] The Government argues that the acquisitions of the five suburban banks approved by the FDIC would lessen competition when compared to what the situation would be if the defendant banks ceased their alleged violations of the Sherman Act. The Government further contends that, even if the present relationships between C&S and the 5-percent banks do not offend the Sherman Act, since the relationships might nevertheless change and the whole situation become more competitive for business or state-law reasons, the proposed acquisitions violate § 7 by foreclosing this possibility. C&S argues that the acquisitions would merely convert de facto into de jure branches, with no perceptible effect on competition compared with the present situation, which is asserted by C&S to be lawful under the Sherman Act. C&S urges that there is no realistic possibility of future competition among the defendant banks. In the alternative, C&S contends that each of the 5-percent banks operates in a distinct and segregable market, so that the proposed acquisitions would not lessen competition in any relevant section of the country; and that any anticompetitive effects of the acquisitions are outweighed in the public interest because the acquisitions meet the convenience and needs of banking customers in the Atlanta area. [13] The District Court did not reach these alternative contentions.
+
+The District Court thought the correspondent associate programs immune from Sherman Act scrutiny because they were subject to the exclusive primary jurisdiction of the Federal Reserve Board under the Bank Holding Company Act of 1956, as amended. We do not so understand the law. The court relied on Whitney Bank v. New Orleans Bank, 379 U. S. 411, but the question in that case was the wholly different one of whether it is the Comptroller of the Currency or the Federal Reserve Board that has jurisdiction to determine whether transactions by a bank holding company conform with applicable state banking law. For guidance as to antitrust immunities, recourse must be had directly to the provisions of the Bank Holding Company Act, 12 U. S. C. § 1841 et seq. The statutory scheme requires the prior approval of the Federal Reserve Board for certain transactions by bank holding companies—including transactions tending to create or enlarge holding company control of independent banks. 12 U. S. C. § 1842 (a). [14] The types of transactions requiring Board approval were expanded by amendments to the Act in 1966 and 1970. [15] Prior to 1966, it appeared that Board approval of a transaction provided no immunity from antitrust action, for a note then set out under 12 U. S. C. § 1841 stated that nothing in the Act was to be construed as a defense to an antitrust suit. The 1966 amendments to the Act formalized this provision, but also blunted its force by establishing an intricate procedure for accommodating the jurisdictions of the Board and the Justice Department. [16] Under the Act as amended, the Board shall not approve an otherwise forbidden transaction unless it meets certain antitrust standards derived from, but not everywhere identical to, the standards of the Sherman Act and of § 7 of the Clayton Act. 12 U. S. C. § 1842 (c). The Board's order granting or denying an application for prior approval is subject to review in the courts of appeals. 12 U. S. C. § 1848. Furthermore, an approved transaction is stayed automatically for 30 days, during which time an antitrust suit challenging the transaction may be brought in the district court. 12 U. S. C. § 1849 (b). Such a suit is governed by the modified antitrust standards set out in § 1842 (c). If the antitrust suit is not brought within 30 days, and the transaction is consummated, the transaction may not thereafter be attacked in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act], but nothing in this chapter shall exempt any bank holding company involved in such a transaction from complying with the antitrust laws after the consummation of such transaction. 12 U. S. C. § 1849 (b). C&S can draw no consolation from these provisions. It is true that the staff of the Federal Reserve Board, in 1968, came to an understanding with C&S that the correspondent associate programs then in effect did not offend § 3 of the Bank Holding Company Act, 12 U. S. C. § 1842 (a), and thus did not require formal Board approval. [17] But this did not give rise to any antitrust immunity. A consummated transaction acquires immunity under § 1849 (b) only when no antitrust action has been commenced within 30 days after the transaction has received the approval of the Board, in an order which is subject to judicial review and which reflects application by the Board of the special antitrust standards of § 1842 (c). The immunity applies only to an acquisition, merger, or consolidation transaction approved under section 1842 of this title in compliance with this chapter. § 1849 (b). The obvious purpose of the complex machinery in § 1849 (b) is to accord finality to formal actions of the Board not subjected to timely challenge under the antitrust laws. There is no indication that Congress wished to accord a similar finality to the informal views of the Board's staff. We note, however, that the 1966 amendments also added a grandfather provision to the Bank Holding Company Act, 12 U. S. C. § 1849 (d): Any acquisition, merger, or consolidation of the kind described in section 1842 (a) of this title which was consummated at any time prior or subsequent to May 9, 1956, and as to which no litigation was initiated by the Attorney General prior to July 1, 1966, shall be conclusively presumed not to have been in violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act]. Unlike § 1849 (b), this provision does not state or imply that the covered transactions must have received the formal approval of the Federal Reserve Board. This grandfather provision is not, like § 1849 (b), an attempt to accommodate the competing jurisdictions of the Federal Reserve Board under § 1842 and the Justice Department under the antitrust laws. Rather, the grandfather provision is a simple conferral of legislative amnesty for theretofore unchallenged transactions completed before Congress had clarified the nature of that accommodation. The transactions by which C&S created a correspondent associate relationship with three of the 5-percent banks—the Sandy Springs, Chamblee, and Tucker banks—were consummated prior to July 1966, and the Attorney General had taken no action against those transactions by that date. Those transactions thus fall within the terms of the grandfather provision, and the correspondent associate programs in force at those three banks are, therefore, immune from attack under § 1 of the Sherman Act. While the formation by C&S of a de facto branch was a unique type of transaction, it may fairly be characterized as an acquisition, merger, or consolidation of the kind described in § 1842 (a). Forming a de facto branch was a multifaceted operation—involving a multiplicity of purchases of stock by a number of parties, the adoption of the C&S logogram by the de facto branch, the connection of the de facto branch with C&S personnel and information programs, the structuring of the bank to receive and administer all C&S banking services, and the establishment of formal C&S influence over the board of directors at the de facto branch. But even before its scope was expanded in 1970, § 1842 (a) was concerned with more than the literal acquisition of stock: It took broad account of the indirect control of stock, and the control of boards of directors in any manner, by bank holding companies. [18] The grandfather provision creates immunity under § 1 of the Sherman Act, not simply under § 7 of the Clayton Act, an indication that its protection extends not merely to literal acquisitions, mergers, and consolidations, but also to restraints of trade simultaneous with and functionally integral to such transactions. Though multifaceted, the formation by C&S of a de facto branch was a unitary and cohesive undertaking in the sense that all the facets were closely coordinated, simultaneously instituted, and designed to serve the single purpose of fitting the new bank into the C&S system. There is virtually nothing about the present correspondent associate programs that was not fully evident and in place from the moment the programs were launched. There has been no increase in C&S control, nor any change in the way it has been exercised. Whether these programs violated § 1842 (a)—as it applies today or as it applied when the programs began —is not relevant to our inquiry. [19] By its terms, the grandfather provision applies to transactions of the kind described in § 1842 (a). We cannot believe that Congress wished to grant the benefits of the provision only to transactions that plainly transgressed § 1842 (a). Such a construction would make application of the grandfather provision not only cumbersome and time consuming, [20] but also flagrantly inequitable. The formation of a de facto C&S branch involved the direct and indirect acquisition of bank stock, and the direct and indirect assertion of control over the governance and operations of a bank, by a bank holding company. Though unusual in form, such a transaction quite clearly falls within the class of dealings by bank holding companies which Congress intended, in § 1849 (d), to shield from retroactive challenge under the antitrust laws.
+Three of the 5-percent banks—the Park National, South DeKalb, and North Fulton banks—were formed after July 1, 1966, and their correspondent associate relationships with C&S are therefore beyond the reach of the grandfather provision of the Bank Holding Company Act and subject to scrutiny under the Sherman Act. Each of these banks was founded ab initio through the sponsorship of C&S. Except for that sponsorship, they would very probably not exist. The record shows that other banking organizations had been unsuccessful in attempting to launch new banks in the area, and C&S affiliation and financial backing were instrumental in convincing state and federal banking authorities to charter these new banks. In short, these banks represented a policy by C&S of de facto branching through the formation of new banking units, rather than through the acquisition, and consequent elimination, of pre-existing, independent banks. [21] Of necessity, the Government's attack on this process is highly technical. Had the new banks been de jure branches of C&S, the whole process would have been beyond reproach. Branching allows established banks to extend their services to new markets, thereby broadening the choices available to consumers in those markets. [22] Having access to parent-bank financial support, expert advice, and proved banking services, branches of several city banks can often enter a market not yet large or developed enough to support a variety of independent, unit banks. Branching thus offers competitive choice to markets where monopoly or oligopoly might otherwise prevail. Furthermore, the branching process gives to outlying customers the benefit of sophisticated services which local unit banks might have little ability or incentive to deliver. The Government denies none of this, nor that C&S's program of de facto branching was, until 1970, the closest substitute to de jure branching allowed under Georgia law. Yet the Government insists that this de facto branching violated the Sherman Act because the parent bank and its de facto branches were legally distinct corporate entities and were obligated, therefore, to compete vigorously against each other. It is, of course, conceded that C&S's de facto branches have not behaved as active competitors with respect either to each other or to C&S National and its majority-owned affiliates. But the Government goes further and contends that the correspondent associate programs have actually encompassed at least a tacit agreement to fix interest rates and service charges, see Interstate Circuit, Inc. v. United States, 306 U. S. 208, 227; United States v. Masonite Corp., 316 U. S. 265, 275-276; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 723; United States v. General Motors Corp., 384 U. S. 127, 142-143, so as to make the interrelationships—to that extent at least—illegal per se. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 224-226, n. 59; United States v. Parke, Davis & Co., 362 U. S. 29, 47. C&S vigorously denies the existence of any agreement to fix prices. The evidence in the record is mixed. C&S did regularly notify the 5-percent banks—as it did its de jure branches—of the interest rates and service charges in force at C&S National and its affiliates. But the dissemination of price information is not itself a per se violation of the Sherman Act. See Maple Flooring Assn. v. United States, 268 U. S. 563; Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588; United States v. Container Corp., 393 U. S. 333, 338 (concurring opinion). A few of the memoranda distributed by C&S could be construed as advocating price uniformity; on the other hand, the memoranda were almost without exception stamped for information only, and the 5-percent banks were admonished by C&S, several times and very clearly, to use their own judgment in setting prices; indeed, the banks were warned that the antitrust laws required no less. The District Court observed that in fact prices did not often vary significantly among the 5-percent banks or between these banks and C&S National, but the court attributed this to the natural deference of the recipient to information from one with greater expertise or better services. 372 F. Supp., at 628. And the court found as a fact that there was no collusive price fixing. Id., at 626. Were we dealing with independent competitors having no permissible reason for intimate and continuous cooperation and consultation as to almost every facet of doing business, the evidence adduced here might well preclude a finding that the parties were not engaged in a conspiracy to affect prices. But, as we indicate below, the correspondent associate programs, as such, were permissible under the Sherman Act. In this unusual light, we cannot hold clearly erroneous the District Court's finding that the lack of significant price competition did not flow from a tacit agreement but instead was an indirect, unintentional, and formally discouraged result of the sharing of expertise and information which was at the heart of the correspondent associate programs. Fed. Rule Civ. Proc. 52 (a); United States v. General Dynamics Corp., 415 U. S. 486, 508. The Government argues, alternatively, that the correspondent associate programs have gone far beyond conventional correspondent relationships, and that consequently these programs have unreasonably restrained competition among the 5-percent banks and between these banks and C&S National. The District Court was not persuaded by this theory: The difference between a pure correspondent relationship and a correspondent associate relationship as set forth in the evidence is merely one of degree, a fine line of demarcation almost impossible for the Court to perceive. . . . In either case there is the flow of information as to rates, practices, etc., which the Government apparently applauds or at least condones in a correspondent banking relationship. 372 F. Supp., at 628. The court's dilemma is understandable, for in neither law nor banking custom has there developed a clear, fixed definition of the correspondent relationship: [23] Correspondent banking is an interbank practice whereby `city' correspondent banks provide a cluster of services to smaller `country' banks in exchange for interbank deposits. Dating back to colonial times, correspondent banking originally provided an extended network of independent unit banks with a link to financial centers, and at the same time furnished substitute central banking functions. Today, as a vital component of the era of electronic banking, it enables city correspondents to provide customers with a range of services that is varied, extensive and constantly expanding; one survey lists as many as fifty different categories. Among the services typically provided within a conventional correspondent arrangement are check clearing, help with bill collections, participation in large loans, legal advice, help in building securities portfolios, counselling as to personnel policies, staff training, help in site selection, auditing, and the provision of electronic data processing. Furthermore, like C&S's program, the correspondent arrangement is often established as a prelude to a formal merger between the two banks. [24] Nevertheless, C&S's program does appear to have gone several steps beyond conventional correspondent arrangements. C&S has closely advised the boards of directors of the 5-percent banks, supplied their chief executive officers, allowed full branchlike use of the C&S logogram, provided all the C&S services available at a de jure branch, dealt with the 5-percent banks through the C&S branch administration department, and provided constant and detailed information on prices and on all banking procedures. [25] It is conceivable that these relationships, separately or taken together, have restrained competition among the defendant banks more thoroughly or effectively than would have a conventional correspondence program. But even if the Government had proved this, which the District Court found not to be the case, that alone would not make out a Sherman Act violation. C&S has operated the 5-percent banks as de facto branches as a direct response to Georgia's historic restrictions on de jure branching, and the question therefore remains whether restraints of trade integral to this particular, unusual function are unreasonable. See Chicago Board of Trade v. United States, 246 U. S. 231, 238. We turn directly to that question. The central message of the Sherman Act is that a business entity must find new customers and higher profits through internal expansion—that is, by competing successfully rather than by arranging treaties with its competitors. This Court has held that even commonly owned firms must compete against each other, if they hold themselves out as distinct entities. The corporate interrelationships of the conspirators . . . are not determinative of the applicability of the Sherman Act. United States v. Yellow Cab Co., 332 U. S. 218, 227. See also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 215; Timken Roller Bearing Co. v. United States, 341 U. S. 593, 598; Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 141-142. A fortiori, independently owned firms cannot escape competing merely by pretending to common ownership or control, for the pretense would simply perfect the cartel. We may also assume, though the question is a new one, that a business entity generally cannot justify restraining trade between itself and an independently owned entity merely on the ground that it helped launch that entity, by providing expert advice or seed capital. Otherwise the technique of sponsorship followed by restraint might displace internal growth as the normal and legitimate technique of business expansion, with unknowable consequences. But these general principles do not dispose of the present case. C&S was absolutely restrained by state law from reaching the suburban market through the preferred process of internal expansion. De facto branching was the closest available substitute. [26] Just last Term, in a brief presented to this Court, the Justice Department told us that it was desirable and procompetitive for a bank to [enter] de novo into areas foreclosed to branching by sponsoring the organization of an affiliate bank, and later acquiring the bank. This method of expansion is legal and a well-recognized practice used by large statewide banking organizations, and recognized by the federal banking authorities. [27] The Government acknowledged that such a sponsored bank could be affiliated with its sponsor for purposes of correspondent relationships and other inter-bank services, including financial support, and that it could be formed by the parent bank's officers, directors, or their associates and could be assisted by the parent firm until acquired and converted into a branch. [28] This is as good a curbstone description as any of precisely the relationships at issue in the present case. [29] To characterize these relationships as an unreasonable restraint of trade is to forget that their whole purpose and effect were to defeat a restraint of trade. Georgia's antibranching law amounted to a compulsory market division. Accomplished through private agreement, market division is a per se offense under the Sherman Act: This Court has reiterated time and again that `[h]orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.'  United States v. Topco Associates, Inc., 405 U. S. 596, 608, quoting White Motor Co. v. United States, 372 U. S. 253, 263. The obvious purpose and effect of a rigid antibranching law are to make the potential bank customers of suburban, small town, and rural areas a captive market for small unit banks. [30] C&S devised a strategy to circumvent this statutory barrier. By providing new banking options to suburban Atlanta customers, while eliminating no existing options, the de facto branching program of C&S has plainly been procompetitive. The Government suggests that a conventional correspondent relationship between C&S and the 5-percent banks would have been equally procompetitive and would have had the added virtue of facilitating competition among the 5-percent banks and between them and C&S National. This is mere speculation on the present record. Moreover, it is far from clear that a conventional correspondent relationship would have allowed C&S to put its full range of services into the suburban market which, in light of the antibranching law, was the very point of its policy and program. Putting to one side the total lack of realism in suggesting that C&S might have founded new banks that would have competed vigorously with it and with each other, cf. United States v. Penn-Olin Chemical Co., 378 U. S. 158, 169, the Government's argument wholly disregards C&S's ultimate goal of acquiring the new banks outright as soon as legally possible, a goal which the Government last year thought wholly proper. We hold that, in the face of the stringent state restrictions on branching, C&S's program of founding new de facto branches, and maintaining them as such, did not infringe § 1 of the Sherman Act.
+In the light of the previous discussion, disposition of the Clayton Act claim becomes relatively straight-forward. The issue under § 7 of the Clayton Act is whether the effect of the proposed acquisitions, approved by the FDIC, may be substantially to lessen competition . . . in any line of commerce in any section of the country. The Government established that C&S is the predominant banking institution in DeKalb County, Fulton County, North Fulton County, and the Atlanta area generally; that in these markets the commercial banking industry is quite highly concentrated in terms of market share statistics; and, of course, that the proposed acquisitions would increase C&S's nominal market shares. [31] The District Court did not decide whether the geographic markets proposed by the Government were the appropriate ones. But assuming, arguendo, that they were, the Government plainly made out a prima facie case of a violation of § 7 under several decisions of this Court. See United States v. Philadelphia National Bank, 374 U. S. 321, 362-366; United States v. Phillipsburg National Bank & Trust Co., 399 U. S. 350, 365-367; United States v. General Dynamics Corp., 415 U. S., at 497. It was thus incumbent upon C&S to show that the market-share statistics gave an inaccurate account of the acquisitions' probable effects on competition. United States v. General Dynamics Corp., supra, at 497-498; United States v. Marine Bancorporation, 418 U. S., at 631. The District Court, like the FDIC before it, concluded that C&S had made the necessary showing that these proposed acquisitions would not lessen competition for the simple reason that under the correspondent associate program that had been continuously in effect, no real competition had developed or was likely to develop among the 5-percent banks, or between these and C&S National. As to present and past competition, the Government agrees there is and has been none. If this state of affairs were the result of violations of the Sherman Act, we agree with the Government that making the evil permanent through acquisition or merger would offend the Clayton Act. See Citizen Publishing Co. v. United States, 394 U. S. 131, 135. But we have already concluded that C&S's program of founding and maintaining new de facto branches in the face of Georgia's antibranching law did not violate the Sherman Act, and the de facto branches which C&S proposes to acquire were all founded ab initio with C&S sponsorship. It thus indisputably follows that the proposed acquisitions will extinguish no present competitive conduct or relationships. See United States v. Trans Texas Bancorporation, 412 U. S. 946, aff'g per curiam 1972 Trade Cas. ¶ 74,257 (WD Tex.). As for future competition, neither the District Court nor the FDIC could find any realistic prospect that denial of these acquisitions would lead the defendant banks to compete against each other. The 5-percent banks theoretically could break their ties with C&S and its correspondent associate program, for these banks are each independently owned, but the record shows that none of the shareholders, directors, or officers of the 5-percent banks expressed any inclination to do so, and there was no evidence that the program has been other than beneficial and profitable for both C&S and the 5-percent banks. [32] The Clayton Act is concerned with probable effects on competition, not with ephemeral possibilities. Brown Shoe Co. v. United States, 370 U. S. 294, 323. For the reasons set out in this opinion, the judgment of the District Court is affirmed. It is so ordered.",The Issues Under the Sherman and Clayton Acts
+146,109287,2,1,"
+The District Court thought the correspondent associate programs immune from Sherman Act scrutiny because they were subject to the exclusive primary jurisdiction of the Federal Reserve Board under the Bank Holding Company Act of 1956, as amended. We do not so understand the law. The court relied on Whitney Bank v. New Orleans Bank, 379 U. S. 411, but the question in that case was the wholly different one of whether it is the Comptroller of the Currency or the Federal Reserve Board that has jurisdiction to determine whether transactions by a bank holding company conform with applicable state banking law. For guidance as to antitrust immunities, recourse must be had directly to the provisions of the Bank Holding Company Act, 12 U. S. C. § 1841 et seq. The statutory scheme requires the prior approval of the Federal Reserve Board for certain transactions by bank holding companies—including transactions tending to create or enlarge holding company control of independent banks. 12 U. S. C. § 1842 (a). [14] The types of transactions requiring Board approval were expanded by amendments to the Act in 1966 and 1970. [15] Prior to 1966, it appeared that Board approval of a transaction provided no immunity from antitrust action, for a note then set out under 12 U. S. C. § 1841 stated that nothing in the Act was to be construed as a defense to an antitrust suit. The 1966 amendments to the Act formalized this provision, but also blunted its force by establishing an intricate procedure for accommodating the jurisdictions of the Board and the Justice Department. [16] Under the Act as amended, the Board shall not approve an otherwise forbidden transaction unless it meets certain antitrust standards derived from, but not everywhere identical to, the standards of the Sherman Act and of § 7 of the Clayton Act. 12 U. S. C. § 1842 (c). The Board's order granting or denying an application for prior approval is subject to review in the courts of appeals. 12 U. S. C. § 1848. Furthermore, an approved transaction is stayed automatically for 30 days, during which time an antitrust suit challenging the transaction may be brought in the district court. 12 U. S. C. § 1849 (b). Such a suit is governed by the modified antitrust standards set out in § 1842 (c). If the antitrust suit is not brought within 30 days, and the transaction is consummated, the transaction may not thereafter be attacked in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act], but nothing in this chapter shall exempt any bank holding company involved in such a transaction from complying with the antitrust laws after the consummation of such transaction. 12 U. S. C. § 1849 (b). C&S can draw no consolation from these provisions. It is true that the staff of the Federal Reserve Board, in 1968, came to an understanding with C&S that the correspondent associate programs then in effect did not offend § 3 of the Bank Holding Company Act, 12 U. S. C. § 1842 (a), and thus did not require formal Board approval. [17] But this did not give rise to any antitrust immunity. A consummated transaction acquires immunity under § 1849 (b) only when no antitrust action has been commenced within 30 days after the transaction has received the approval of the Board, in an order which is subject to judicial review and which reflects application by the Board of the special antitrust standards of § 1842 (c). The immunity applies only to an acquisition, merger, or consolidation transaction approved under section 1842 of this title in compliance with this chapter. § 1849 (b). The obvious purpose of the complex machinery in § 1849 (b) is to accord finality to formal actions of the Board not subjected to timely challenge under the antitrust laws. There is no indication that Congress wished to accord a similar finality to the informal views of the Board's staff. We note, however, that the 1966 amendments also added a grandfather provision to the Bank Holding Company Act, 12 U. S. C. § 1849 (d): Any acquisition, merger, or consolidation of the kind described in section 1842 (a) of this title which was consummated at any time prior or subsequent to May 9, 1956, and as to which no litigation was initiated by the Attorney General prior to July 1, 1966, shall be conclusively presumed not to have been in violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act]. Unlike § 1849 (b), this provision does not state or imply that the covered transactions must have received the formal approval of the Federal Reserve Board. This grandfather provision is not, like § 1849 (b), an attempt to accommodate the competing jurisdictions of the Federal Reserve Board under § 1842 and the Justice Department under the antitrust laws. Rather, the grandfather provision is a simple conferral of legislative amnesty for theretofore unchallenged transactions completed before Congress had clarified the nature of that accommodation. The transactions by which C&S created a correspondent associate relationship with three of the 5-percent banks—the Sandy Springs, Chamblee, and Tucker banks—were consummated prior to July 1966, and the Attorney General had taken no action against those transactions by that date. Those transactions thus fall within the terms of the grandfather provision, and the correspondent associate programs in force at those three banks are, therefore, immune from attack under § 1 of the Sherman Act. While the formation by C&S of a de facto branch was a unique type of transaction, it may fairly be characterized as an acquisition, merger, or consolidation of the kind described in § 1842 (a). Forming a de facto branch was a multifaceted operation—involving a multiplicity of purchases of stock by a number of parties, the adoption of the C&S logogram by the de facto branch, the connection of the de facto branch with C&S personnel and information programs, the structuring of the bank to receive and administer all C&S banking services, and the establishment of formal C&S influence over the board of directors at the de facto branch. But even before its scope was expanded in 1970, § 1842 (a) was concerned with more than the literal acquisition of stock: It took broad account of the indirect control of stock, and the control of boards of directors in any manner, by bank holding companies. [18] The grandfather provision creates immunity under § 1 of the Sherman Act, not simply under § 7 of the Clayton Act, an indication that its protection extends not merely to literal acquisitions, mergers, and consolidations, but also to restraints of trade simultaneous with and functionally integral to such transactions. Though multifaceted, the formation by C&S of a de facto branch was a unitary and cohesive undertaking in the sense that all the facets were closely coordinated, simultaneously instituted, and designed to serve the single purpose of fitting the new bank into the C&S system. There is virtually nothing about the present correspondent associate programs that was not fully evident and in place from the moment the programs were launched. There has been no increase in C&S control, nor any change in the way it has been exercised. Whether these programs violated § 1842 (a)—as it applies today or as it applied when the programs began —is not relevant to our inquiry. [19] By its terms, the grandfather provision applies to transactions of the kind described in § 1842 (a). We cannot believe that Congress wished to grant the benefits of the provision only to transactions that plainly transgressed § 1842 (a). Such a construction would make application of the grandfather provision not only cumbersome and time consuming, [20] but also flagrantly inequitable. The formation of a de facto C&S branch involved the direct and indirect acquisition of bank stock, and the direct and indirect assertion of control over the governance and operations of a bank, by a bank holding company. Though unusual in form, such a transaction quite clearly falls within the class of dealings by bank holding companies which Congress intended, in § 1849 (d), to shield from retroactive challenge under the antitrust laws.
+Three of the 5-percent banks—the Park National, South DeKalb, and North Fulton banks—were formed after July 1, 1966, and their correspondent associate relationships with C&S are therefore beyond the reach of the grandfather provision of the Bank Holding Company Act and subject to scrutiny under the Sherman Act. Each of these banks was founded ab initio through the sponsorship of C&S. Except for that sponsorship, they would very probably not exist. The record shows that other banking organizations had been unsuccessful in attempting to launch new banks in the area, and C&S affiliation and financial backing were instrumental in convincing state and federal banking authorities to charter these new banks. In short, these banks represented a policy by C&S of de facto branching through the formation of new banking units, rather than through the acquisition, and consequent elimination, of pre-existing, independent banks. [21] Of necessity, the Government's attack on this process is highly technical. Had the new banks been de jure branches of C&S, the whole process would have been beyond reproach. Branching allows established banks to extend their services to new markets, thereby broadening the choices available to consumers in those markets. [22] Having access to parent-bank financial support, expert advice, and proved banking services, branches of several city banks can often enter a market not yet large or developed enough to support a variety of independent, unit banks. Branching thus offers competitive choice to markets where monopoly or oligopoly might otherwise prevail. Furthermore, the branching process gives to outlying customers the benefit of sophisticated services which local unit banks might have little ability or incentive to deliver. The Government denies none of this, nor that C&S's program of de facto branching was, until 1970, the closest substitute to de jure branching allowed under Georgia law. Yet the Government insists that this de facto branching violated the Sherman Act because the parent bank and its de facto branches were legally distinct corporate entities and were obligated, therefore, to compete vigorously against each other. It is, of course, conceded that C&S's de facto branches have not behaved as active competitors with respect either to each other or to C&S National and its majority-owned affiliates. But the Government goes further and contends that the correspondent associate programs have actually encompassed at least a tacit agreement to fix interest rates and service charges, see Interstate Circuit, Inc. v. United States, 306 U. S. 208, 227; United States v. Masonite Corp., 316 U. S. 265, 275-276; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 723; United States v. General Motors Corp., 384 U. S. 127, 142-143, so as to make the interrelationships—to that extent at least—illegal per se. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 224-226, n. 59; United States v. Parke, Davis & Co., 362 U. S. 29, 47. C&S vigorously denies the existence of any agreement to fix prices. The evidence in the record is mixed. C&S did regularly notify the 5-percent banks—as it did its de jure branches—of the interest rates and service charges in force at C&S National and its affiliates. But the dissemination of price information is not itself a per se violation of the Sherman Act. See Maple Flooring Assn. v. United States, 268 U. S. 563; Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588; United States v. Container Corp., 393 U. S. 333, 338 (concurring opinion). A few of the memoranda distributed by C&S could be construed as advocating price uniformity; on the other hand, the memoranda were almost without exception stamped for information only, and the 5-percent banks were admonished by C&S, several times and very clearly, to use their own judgment in setting prices; indeed, the banks were warned that the antitrust laws required no less. The District Court observed that in fact prices did not often vary significantly among the 5-percent banks or between these banks and C&S National, but the court attributed this to the natural deference of the recipient to information from one with greater expertise or better services. 372 F. Supp., at 628. And the court found as a fact that there was no collusive price fixing. Id., at 626. Were we dealing with independent competitors having no permissible reason for intimate and continuous cooperation and consultation as to almost every facet of doing business, the evidence adduced here might well preclude a finding that the parties were not engaged in a conspiracy to affect prices. But, as we indicate below, the correspondent associate programs, as such, were permissible under the Sherman Act. In this unusual light, we cannot hold clearly erroneous the District Court's finding that the lack of significant price competition did not flow from a tacit agreement but instead was an indirect, unintentional, and formally discouraged result of the sharing of expertise and information which was at the heart of the correspondent associate programs. Fed. Rule Civ. Proc. 52 (a); United States v. General Dynamics Corp., 415 U. S. 486, 508. The Government argues, alternatively, that the correspondent associate programs have gone far beyond conventional correspondent relationships, and that consequently these programs have unreasonably restrained competition among the 5-percent banks and between these banks and C&S National. The District Court was not persuaded by this theory: The difference between a pure correspondent relationship and a correspondent associate relationship as set forth in the evidence is merely one of degree, a fine line of demarcation almost impossible for the Court to perceive. . . . In either case there is the flow of information as to rates, practices, etc., which the Government apparently applauds or at least condones in a correspondent banking relationship. 372 F. Supp., at 628. The court's dilemma is understandable, for in neither law nor banking custom has there developed a clear, fixed definition of the correspondent relationship: [23] Correspondent banking is an interbank practice whereby `city' correspondent banks provide a cluster of services to smaller `country' banks in exchange for interbank deposits. Dating back to colonial times, correspondent banking originally provided an extended network of independent unit banks with a link to financial centers, and at the same time furnished substitute central banking functions. Today, as a vital component of the era of electronic banking, it enables city correspondents to provide customers with a range of services that is varied, extensive and constantly expanding; one survey lists as many as fifty different categories. Among the services typically provided within a conventional correspondent arrangement are check clearing, help with bill collections, participation in large loans, legal advice, help in building securities portfolios, counselling as to personnel policies, staff training, help in site selection, auditing, and the provision of electronic data processing. Furthermore, like C&S's program, the correspondent arrangement is often established as a prelude to a formal merger between the two banks. [24] Nevertheless, C&S's program does appear to have gone several steps beyond conventional correspondent arrangements. C&S has closely advised the boards of directors of the 5-percent banks, supplied their chief executive officers, allowed full branchlike use of the C&S logogram, provided all the C&S services available at a de jure branch, dealt with the 5-percent banks through the C&S branch administration department, and provided constant and detailed information on prices and on all banking procedures. [25] It is conceivable that these relationships, separately or taken together, have restrained competition among the defendant banks more thoroughly or effectively than would have a conventional correspondence program. But even if the Government had proved this, which the District Court found not to be the case, that alone would not make out a Sherman Act violation. C&S has operated the 5-percent banks as de facto branches as a direct response to Georgia's historic restrictions on de jure branching, and the question therefore remains whether restraints of trade integral to this particular, unusual function are unreasonable. See Chicago Board of Trade v. United States, 246 U. S. 231, 238. We turn directly to that question. The central message of the Sherman Act is that a business entity must find new customers and higher profits through internal expansion—that is, by competing successfully rather than by arranging treaties with its competitors. This Court has held that even commonly owned firms must compete against each other, if they hold themselves out as distinct entities. The corporate interrelationships of the conspirators . . . are not determinative of the applicability of the Sherman Act. United States v. Yellow Cab Co., 332 U. S. 218, 227. See also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 215; Timken Roller Bearing Co. v. United States, 341 U. S. 593, 598; Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 141-142. A fortiori, independently owned firms cannot escape competing merely by pretending to common ownership or control, for the pretense would simply perfect the cartel. We may also assume, though the question is a new one, that a business entity generally cannot justify restraining trade between itself and an independently owned entity merely on the ground that it helped launch that entity, by providing expert advice or seed capital. Otherwise the technique of sponsorship followed by restraint might displace internal growth as the normal and legitimate technique of business expansion, with unknowable consequences. But these general principles do not dispose of the present case. C&S was absolutely restrained by state law from reaching the suburban market through the preferred process of internal expansion. De facto branching was the closest available substitute. [26] Just last Term, in a brief presented to this Court, the Justice Department told us that it was desirable and procompetitive for a bank to [enter] de novo into areas foreclosed to branching by sponsoring the organization of an affiliate bank, and later acquiring the bank. This method of expansion is legal and a well-recognized practice used by large statewide banking organizations, and recognized by the federal banking authorities. [27] The Government acknowledged that such a sponsored bank could be affiliated with its sponsor for purposes of correspondent relationships and other inter-bank services, including financial support, and that it could be formed by the parent bank's officers, directors, or their associates and could be assisted by the parent firm until acquired and converted into a branch. [28] This is as good a curbstone description as any of precisely the relationships at issue in the present case. [29] To characterize these relationships as an unreasonable restraint of trade is to forget that their whole purpose and effect were to defeat a restraint of trade. Georgia's antibranching law amounted to a compulsory market division. Accomplished through private agreement, market division is a per se offense under the Sherman Act: This Court has reiterated time and again that `[h]orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.'  United States v. Topco Associates, Inc., 405 U. S. 596, 608, quoting White Motor Co. v. United States, 372 U. S. 253, 263. The obvious purpose and effect of a rigid antibranching law are to make the potential bank customers of suburban, small town, and rural areas a captive market for small unit banks. [30] C&S devised a strategy to circumvent this statutory barrier. By providing new banking options to suburban Atlanta customers, while eliminating no existing options, the de facto branching program of C&S has plainly been procompetitive. The Government suggests that a conventional correspondent relationship between C&S and the 5-percent banks would have been equally procompetitive and would have had the added virtue of facilitating competition among the 5-percent banks and between them and C&S National. This is mere speculation on the present record. Moreover, it is far from clear that a conventional correspondent relationship would have allowed C&S to put its full range of services into the suburban market which, in light of the antibranching law, was the very point of its policy and program. Putting to one side the total lack of realism in suggesting that C&S might have founded new banks that would have competed vigorously with it and with each other, cf. United States v. Penn-Olin Chemical Co., 378 U. S. 158, 169, the Government's argument wholly disregards C&S's ultimate goal of acquiring the new banks outright as soon as legally possible, a goal which the Government last year thought wholly proper. We hold that, in the face of the stringent state restrictions on branching, C&S's program of founding new de facto branches, and maintaining them as such, did not infringe § 1 of the Sherman Act.",The Sherman Act Issues
+147,109287,3,1,"The District Court thought the correspondent associate programs immune from Sherman Act scrutiny because they were subject to the exclusive primary jurisdiction of the Federal Reserve Board under the Bank Holding Company Act of 1956, as amended. We do not so understand the law. The court relied on Whitney Bank v. New Orleans Bank, 379 U. S. 411, but the question in that case was the wholly different one of whether it is the Comptroller of the Currency or the Federal Reserve Board that has jurisdiction to determine whether transactions by a bank holding company conform with applicable state banking law. For guidance as to antitrust immunities, recourse must be had directly to the provisions of the Bank Holding Company Act, 12 U. S. C. § 1841 et seq. The statutory scheme requires the prior approval of the Federal Reserve Board for certain transactions by bank holding companies—including transactions tending to create or enlarge holding company control of independent banks. 12 U. S. C. § 1842 (a). [14] The types of transactions requiring Board approval were expanded by amendments to the Act in 1966 and 1970. [15] Prior to 1966, it appeared that Board approval of a transaction provided no immunity from antitrust action, for a note then set out under 12 U. S. C. § 1841 stated that nothing in the Act was to be construed as a defense to an antitrust suit. The 1966 amendments to the Act formalized this provision, but also blunted its force by establishing an intricate procedure for accommodating the jurisdictions of the Board and the Justice Department. [16] Under the Act as amended, the Board shall not approve an otherwise forbidden transaction unless it meets certain antitrust standards derived from, but not everywhere identical to, the standards of the Sherman Act and of § 7 of the Clayton Act. 12 U. S. C. § 1842 (c). The Board's order granting or denying an application for prior approval is subject to review in the courts of appeals. 12 U. S. C. § 1848. Furthermore, an approved transaction is stayed automatically for 30 days, during which time an antitrust suit challenging the transaction may be brought in the district court. 12 U. S. C. § 1849 (b). Such a suit is governed by the modified antitrust standards set out in § 1842 (c). If the antitrust suit is not brought within 30 days, and the transaction is consummated, the transaction may not thereafter be attacked in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act], but nothing in this chapter shall exempt any bank holding company involved in such a transaction from complying with the antitrust laws after the consummation of such transaction. 12 U. S. C. § 1849 (b). C&S can draw no consolation from these provisions. It is true that the staff of the Federal Reserve Board, in 1968, came to an understanding with C&S that the correspondent associate programs then in effect did not offend § 3 of the Bank Holding Company Act, 12 U. S. C. § 1842 (a), and thus did not require formal Board approval. [17] But this did not give rise to any antitrust immunity. A consummated transaction acquires immunity under § 1849 (b) only when no antitrust action has been commenced within 30 days after the transaction has received the approval of the Board, in an order which is subject to judicial review and which reflects application by the Board of the special antitrust standards of § 1842 (c). The immunity applies only to an acquisition, merger, or consolidation transaction approved under section 1842 of this title in compliance with this chapter. § 1849 (b). The obvious purpose of the complex machinery in § 1849 (b) is to accord finality to formal actions of the Board not subjected to timely challenge under the antitrust laws. There is no indication that Congress wished to accord a similar finality to the informal views of the Board's staff. We note, however, that the 1966 amendments also added a grandfather provision to the Bank Holding Company Act, 12 U. S. C. § 1849 (d): Any acquisition, merger, or consolidation of the kind described in section 1842 (a) of this title which was consummated at any time prior or subsequent to May 9, 1956, and as to which no litigation was initiated by the Attorney General prior to July 1, 1966, shall be conclusively presumed not to have been in violation of any antitrust laws other than section 2 of Title 15 [§ 2 of the Sherman Act]. Unlike § 1849 (b), this provision does not state or imply that the covered transactions must have received the formal approval of the Federal Reserve Board. This grandfather provision is not, like § 1849 (b), an attempt to accommodate the competing jurisdictions of the Federal Reserve Board under § 1842 and the Justice Department under the antitrust laws. Rather, the grandfather provision is a simple conferral of legislative amnesty for theretofore unchallenged transactions completed before Congress had clarified the nature of that accommodation. The transactions by which C&S created a correspondent associate relationship with three of the 5-percent banks—the Sandy Springs, Chamblee, and Tucker banks—were consummated prior to July 1966, and the Attorney General had taken no action against those transactions by that date. Those transactions thus fall within the terms of the grandfather provision, and the correspondent associate programs in force at those three banks are, therefore, immune from attack under § 1 of the Sherman Act. While the formation by C&S of a de facto branch was a unique type of transaction, it may fairly be characterized as an acquisition, merger, or consolidation of the kind described in § 1842 (a). Forming a de facto branch was a multifaceted operation—involving a multiplicity of purchases of stock by a number of parties, the adoption of the C&S logogram by the de facto branch, the connection of the de facto branch with C&S personnel and information programs, the structuring of the bank to receive and administer all C&S banking services, and the establishment of formal C&S influence over the board of directors at the de facto branch. But even before its scope was expanded in 1970, § 1842 (a) was concerned with more than the literal acquisition of stock: It took broad account of the indirect control of stock, and the control of boards of directors in any manner, by bank holding companies. [18] The grandfather provision creates immunity under § 1 of the Sherman Act, not simply under § 7 of the Clayton Act, an indication that its protection extends not merely to literal acquisitions, mergers, and consolidations, but also to restraints of trade simultaneous with and functionally integral to such transactions. Though multifaceted, the formation by C&S of a de facto branch was a unitary and cohesive undertaking in the sense that all the facets were closely coordinated, simultaneously instituted, and designed to serve the single purpose of fitting the new bank into the C&S system. There is virtually nothing about the present correspondent associate programs that was not fully evident and in place from the moment the programs were launched. There has been no increase in C&S control, nor any change in the way it has been exercised. Whether these programs violated § 1842 (a)—as it applies today or as it applied when the programs began —is not relevant to our inquiry. [19] By its terms, the grandfather provision applies to transactions of the kind described in § 1842 (a). We cannot believe that Congress wished to grant the benefits of the provision only to transactions that plainly transgressed § 1842 (a). Such a construction would make application of the grandfather provision not only cumbersome and time consuming, [20] but also flagrantly inequitable. The formation of a de facto C&S branch involved the direct and indirect acquisition of bank stock, and the direct and indirect assertion of control over the governance and operations of a bank, by a bank holding company. Though unusual in form, such a transaction quite clearly falls within the class of dealings by bank holding companies which Congress intended, in § 1849 (d), to shield from retroactive challenge under the antitrust laws.",The Question of Immunity
+148,109287,3,2,"Three of the 5-percent banks—the Park National, South DeKalb, and North Fulton banks—were formed after July 1, 1966, and their correspondent associate relationships with C&S are therefore beyond the reach of the grandfather provision of the Bank Holding Company Act and subject to scrutiny under the Sherman Act. Each of these banks was founded ab initio through the sponsorship of C&S. Except for that sponsorship, they would very probably not exist. The record shows that other banking organizations had been unsuccessful in attempting to launch new banks in the area, and C&S affiliation and financial backing were instrumental in convincing state and federal banking authorities to charter these new banks. In short, these banks represented a policy by C&S of de facto branching through the formation of new banking units, rather than through the acquisition, and consequent elimination, of pre-existing, independent banks. [21] Of necessity, the Government's attack on this process is highly technical. Had the new banks been de jure branches of C&S, the whole process would have been beyond reproach. Branching allows established banks to extend their services to new markets, thereby broadening the choices available to consumers in those markets. [22] Having access to parent-bank financial support, expert advice, and proved banking services, branches of several city banks can often enter a market not yet large or developed enough to support a variety of independent, unit banks. Branching thus offers competitive choice to markets where monopoly or oligopoly might otherwise prevail. Furthermore, the branching process gives to outlying customers the benefit of sophisticated services which local unit banks might have little ability or incentive to deliver. The Government denies none of this, nor that C&S's program of de facto branching was, until 1970, the closest substitute to de jure branching allowed under Georgia law. Yet the Government insists that this de facto branching violated the Sherman Act because the parent bank and its de facto branches were legally distinct corporate entities and were obligated, therefore, to compete vigorously against each other. It is, of course, conceded that C&S's de facto branches have not behaved as active competitors with respect either to each other or to C&S National and its majority-owned affiliates. But the Government goes further and contends that the correspondent associate programs have actually encompassed at least a tacit agreement to fix interest rates and service charges, see Interstate Circuit, Inc. v. United States, 306 U. S. 208, 227; United States v. Masonite Corp., 316 U. S. 265, 275-276; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 723; United States v. General Motors Corp., 384 U. S. 127, 142-143, so as to make the interrelationships—to that extent at least—illegal per se. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 224-226, n. 59; United States v. Parke, Davis & Co., 362 U. S. 29, 47. C&S vigorously denies the existence of any agreement to fix prices. The evidence in the record is mixed. C&S did regularly notify the 5-percent banks—as it did its de jure branches—of the interest rates and service charges in force at C&S National and its affiliates. But the dissemination of price information is not itself a per se violation of the Sherman Act. See Maple Flooring Assn. v. United States, 268 U. S. 563; Cement Mfrs. Protective Assn. v. United States, 268 U. S. 588; United States v. Container Corp., 393 U. S. 333, 338 (concurring opinion). A few of the memoranda distributed by C&S could be construed as advocating price uniformity; on the other hand, the memoranda were almost without exception stamped for information only, and the 5-percent banks were admonished by C&S, several times and very clearly, to use their own judgment in setting prices; indeed, the banks were warned that the antitrust laws required no less. The District Court observed that in fact prices did not often vary significantly among the 5-percent banks or between these banks and C&S National, but the court attributed this to the natural deference of the recipient to information from one with greater expertise or better services. 372 F. Supp., at 628. And the court found as a fact that there was no collusive price fixing. Id., at 626. Were we dealing with independent competitors having no permissible reason for intimate and continuous cooperation and consultation as to almost every facet of doing business, the evidence adduced here might well preclude a finding that the parties were not engaged in a conspiracy to affect prices. But, as we indicate below, the correspondent associate programs, as such, were permissible under the Sherman Act. In this unusual light, we cannot hold clearly erroneous the District Court's finding that the lack of significant price competition did not flow from a tacit agreement but instead was an indirect, unintentional, and formally discouraged result of the sharing of expertise and information which was at the heart of the correspondent associate programs. Fed. Rule Civ. Proc. 52 (a); United States v. General Dynamics Corp., 415 U. S. 486, 508. The Government argues, alternatively, that the correspondent associate programs have gone far beyond conventional correspondent relationships, and that consequently these programs have unreasonably restrained competition among the 5-percent banks and between these banks and C&S National. The District Court was not persuaded by this theory: The difference between a pure correspondent relationship and a correspondent associate relationship as set forth in the evidence is merely one of degree, a fine line of demarcation almost impossible for the Court to perceive. . . . In either case there is the flow of information as to rates, practices, etc., which the Government apparently applauds or at least condones in a correspondent banking relationship. 372 F. Supp., at 628. The court's dilemma is understandable, for in neither law nor banking custom has there developed a clear, fixed definition of the correspondent relationship: [23] Correspondent banking is an interbank practice whereby `city' correspondent banks provide a cluster of services to smaller `country' banks in exchange for interbank deposits. Dating back to colonial times, correspondent banking originally provided an extended network of independent unit banks with a link to financial centers, and at the same time furnished substitute central banking functions. Today, as a vital component of the era of electronic banking, it enables city correspondents to provide customers with a range of services that is varied, extensive and constantly expanding; one survey lists as many as fifty different categories. Among the services typically provided within a conventional correspondent arrangement are check clearing, help with bill collections, participation in large loans, legal advice, help in building securities portfolios, counselling as to personnel policies, staff training, help in site selection, auditing, and the provision of electronic data processing. Furthermore, like C&S's program, the correspondent arrangement is often established as a prelude to a formal merger between the two banks. [24] Nevertheless, C&S's program does appear to have gone several steps beyond conventional correspondent arrangements. C&S has closely advised the boards of directors of the 5-percent banks, supplied their chief executive officers, allowed full branchlike use of the C&S logogram, provided all the C&S services available at a de jure branch, dealt with the 5-percent banks through the C&S branch administration department, and provided constant and detailed information on prices and on all banking procedures. [25] It is conceivable that these relationships, separately or taken together, have restrained competition among the defendant banks more thoroughly or effectively than would have a conventional correspondence program. But even if the Government had proved this, which the District Court found not to be the case, that alone would not make out a Sherman Act violation. C&S has operated the 5-percent banks as de facto branches as a direct response to Georgia's historic restrictions on de jure branching, and the question therefore remains whether restraints of trade integral to this particular, unusual function are unreasonable. See Chicago Board of Trade v. United States, 246 U. S. 231, 238. We turn directly to that question. The central message of the Sherman Act is that a business entity must find new customers and higher profits through internal expansion—that is, by competing successfully rather than by arranging treaties with its competitors. This Court has held that even commonly owned firms must compete against each other, if they hold themselves out as distinct entities. The corporate interrelationships of the conspirators . . . are not determinative of the applicability of the Sherman Act. United States v. Yellow Cab Co., 332 U. S. 218, 227. See also Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 215; Timken Roller Bearing Co. v. United States, 341 U. S. 593, 598; Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 141-142. A fortiori, independently owned firms cannot escape competing merely by pretending to common ownership or control, for the pretense would simply perfect the cartel. We may also assume, though the question is a new one, that a business entity generally cannot justify restraining trade between itself and an independently owned entity merely on the ground that it helped launch that entity, by providing expert advice or seed capital. Otherwise the technique of sponsorship followed by restraint might displace internal growth as the normal and legitimate technique of business expansion, with unknowable consequences. But these general principles do not dispose of the present case. C&S was absolutely restrained by state law from reaching the suburban market through the preferred process of internal expansion. De facto branching was the closest available substitute. [26] Just last Term, in a brief presented to this Court, the Justice Department told us that it was desirable and procompetitive for a bank to [enter] de novo into areas foreclosed to branching by sponsoring the organization of an affiliate bank, and later acquiring the bank. This method of expansion is legal and a well-recognized practice used by large statewide banking organizations, and recognized by the federal banking authorities. [27] The Government acknowledged that such a sponsored bank could be affiliated with its sponsor for purposes of correspondent relationships and other inter-bank services, including financial support, and that it could be formed by the parent bank's officers, directors, or their associates and could be assisted by the parent firm until acquired and converted into a branch. [28] This is as good a curbstone description as any of precisely the relationships at issue in the present case. [29] To characterize these relationships as an unreasonable restraint of trade is to forget that their whole purpose and effect were to defeat a restraint of trade. Georgia's antibranching law amounted to a compulsory market division. Accomplished through private agreement, market division is a per se offense under the Sherman Act: This Court has reiterated time and again that `[h]orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.'  United States v. Topco Associates, Inc., 405 U. S. 596, 608, quoting White Motor Co. v. United States, 372 U. S. 253, 263. The obvious purpose and effect of a rigid antibranching law are to make the potential bank customers of suburban, small town, and rural areas a captive market for small unit banks. [30] C&S devised a strategy to circumvent this statutory barrier. By providing new banking options to suburban Atlanta customers, while eliminating no existing options, the de facto branching program of C&S has plainly been procompetitive. The Government suggests that a conventional correspondent relationship between C&S and the 5-percent banks would have been equally procompetitive and would have had the added virtue of facilitating competition among the 5-percent banks and between them and C&S National. This is mere speculation on the present record. Moreover, it is far from clear that a conventional correspondent relationship would have allowed C&S to put its full range of services into the suburban market which, in light of the antibranching law, was the very point of its policy and program. Putting to one side the total lack of realism in suggesting that C&S might have founded new banks that would have competed vigorously with it and with each other, cf. United States v. Penn-Olin Chemical Co., 378 U. S. 158, 169, the Government's argument wholly disregards C&S's ultimate goal of acquiring the new banks outright as soon as legally possible, a goal which the Government last year thought wholly proper. We hold that, in the face of the stringent state restrictions on branching, C&S's program of founding new de facto branches, and maintaining them as such, did not infringe § 1 of the Sherman Act.",De Facto Branching Under the Sherman Act
+149,109287,2,2,"In the light of the previous discussion, disposition of the Clayton Act claim becomes relatively straight-forward. The issue under § 7 of the Clayton Act is whether the effect of the proposed acquisitions, approved by the FDIC, may be substantially to lessen competition . . . in any line of commerce in any section of the country. The Government established that C&S is the predominant banking institution in DeKalb County, Fulton County, North Fulton County, and the Atlanta area generally; that in these markets the commercial banking industry is quite highly concentrated in terms of market share statistics; and, of course, that the proposed acquisitions would increase C&S's nominal market shares. [31] The District Court did not decide whether the geographic markets proposed by the Government were the appropriate ones. But assuming, arguendo, that they were, the Government plainly made out a prima facie case of a violation of § 7 under several decisions of this Court. See United States v. Philadelphia National Bank, 374 U. S. 321, 362-366; United States v. Phillipsburg National Bank & Trust Co., 399 U. S. 350, 365-367; United States v. General Dynamics Corp., 415 U. S., at 497. It was thus incumbent upon C&S to show that the market-share statistics gave an inaccurate account of the acquisitions' probable effects on competition. United States v. General Dynamics Corp., supra, at 497-498; United States v. Marine Bancorporation, 418 U. S., at 631. The District Court, like the FDIC before it, concluded that C&S had made the necessary showing that these proposed acquisitions would not lessen competition for the simple reason that under the correspondent associate program that had been continuously in effect, no real competition had developed or was likely to develop among the 5-percent banks, or between these and C&S National. As to present and past competition, the Government agrees there is and has been none. If this state of affairs were the result of violations of the Sherman Act, we agree with the Government that making the evil permanent through acquisition or merger would offend the Clayton Act. See Citizen Publishing Co. v. United States, 394 U. S. 131, 135. But we have already concluded that C&S's program of founding and maintaining new de facto branches in the face of Georgia's antibranching law did not violate the Sherman Act, and the de facto branches which C&S proposes to acquire were all founded ab initio with C&S sponsorship. It thus indisputably follows that the proposed acquisitions will extinguish no present competitive conduct or relationships. See United States v. Trans Texas Bancorporation, 412 U. S. 946, aff'g per curiam 1972 Trade Cas. ¶ 74,257 (WD Tex.). As for future competition, neither the District Court nor the FDIC could find any realistic prospect that denial of these acquisitions would lead the defendant banks to compete against each other. The 5-percent banks theoretically could break their ties with C&S and its correspondent associate program, for these banks are each independently owned, but the record shows that none of the shareholders, directors, or officers of the 5-percent banks expressed any inclination to do so, and there was no evidence that the program has been other than beneficial and profitable for both C&S and the 5-percent banks. [32] The Clayton Act is concerned with probable effects on competition, not with ephemeral possibilities. Brown Shoe Co. v. United States, 370 U. S. 294, 323. For the reasons set out in this opinion, the judgment of the District Court is affirmed. It is so ordered.",The Clayton Act Claim
+150,109287,1,2,"The Court concedes that under our prior decisions the Government has established a prima facie case under § 7. Ante, at 120. But the Court affirms the District Court's determination that the acquisitions add nothing of anticompetitive significance to the pre-existing correspondent associate relationship. Since I have concluded that the relationship itself violates the Sherman Act, I also disagree with the Court's affirmance of the District Court on the Clayton Act issue. Since, in my view, appellees can no longer rely upon the affiliation to rebut the Government's prima facie case, I would remand to the District Court for consideration of the convenience and needs defense of 12 U. S. C. § 1828 (c) (5) (B). But I also disagree with the Court's conclusion that the acquisitions add nothing of significance to the existing arrangements, and I would therefore reverse even if I accepted the Court's disposition of the Sherman Act counts. I state briefly my reasons for so concluding. If not acquired, the 5-percent banks have the power to break their ties with C&S, and the likelihood that any would do so may be expected to increase as the demand for their services grows and as their managements acquire additional business experience. However risky these ventures may have been at their inception, the recent performance of the 5-percent banks attests to their present viability. [17] Because of the continuing population growth of the Atlanta area, the banks may anticipate an expanding demand for their services. These circumstances might well induce the management of a 5-percent bank to assume a more independent posture, at least to shop around among other large Atlanta banks for more conventional correspondent services. [18] Quite apart from what the managements of the 5-percent banks might do, it is most improbable that C&S would long be happy with existing arrangements if acquisition were enjoined. The record demonstrates the aggressive, expansionist performance of C&S, having increased its Atlanta offices from three in 1946 to more than 100 by the time of trial. It is quite inconceivable that such a firm would long be content to continue operations through de facto branches in which its interest was limited to 5%. The formation of de jure branches, ultimately in competition with former correspondent associates, would be a plausible result. The foregoing are not ephemeral possibilities, Brown Shoe Co. v. United States, 370 U. S. 294, 323 (1962), that antitrust analysis should ignore. Section 7 was intended, as we have repeatedly said, to arrest anticompetitive tendencies in their `incipiency.'  United States v. Philadelphia National Bank, 374 U. S., at 362. In applying the § 7 standards, we are obliged to hold acquisitions unlawful if a reasonable likelihood of a substantial lessening of competition under future conditions is discernible. E. g., United States v. Continental Can Co., 378 U. S. 441, 458 (1964); FTC v. Procter & Gamble Co., 386 U. S. 568, 577 (1967); United States v. Falstaff Brewing Corp., 410 U. S. 526, 539 (1973) (DOUGLAS, J., concurring in part). While inquiry as to future market conditions and performance inevitably involves speculation, fidelity to the congressional purpose requires us to resolve reasonable doubts in favor of the preservation of independent entities. This is perforce true where, as here, the market is highly concentrated and the acquiring firm is the dominant one. My Brother WHITE reminded us in his dissent last Term in United States v. Marine Bancorporation, 418 U. S., at 653: In the last analysis, one's view of this case, and the rules one devises for assessing whether this merger should be barred, turns on the policy of § 7 of the Clayton Act to bar mergers which may contribute to further concentration in the structure of American business. . . . The dangers of concentration are particularly acute in the banking business, since `if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected. . . .'  (Citations omitted.) Today's decision permits C&S, the dominant commercial bank in Atlanta, further to entrench its position. Two other rivals, which together with C&S control more than 75% of the banking business in Atlanta, may now be expected to follow suit, acquiring their own  de facto branches. [19] I believe these developments exemplify the further concentration in the structure of American business that § 7 was designed to prevent. Accordingly, I would reverse the judgment of the District Court.",The Clayton Act
+151,112709,3,1,"An offense that is not specifically classified by a letter grade in the section defining it, is classified— (1) if the maximum term of imprisonment authorized is— (A) life imprisonment, or if the maximum penalty is death, as a Class A felony; (B) twenty years or more, as a Class B felony; (C) less than twenty years but ten or more years, as a Class C felony; (D) less than ten years but five or more years, as a Class D felony; (E) less than five years but more than one year, as a Class E felony; (F) one year or less but more than six months, as a Class A misdemeanor; (G) six months or less but more than thirty days, as a Class B misdemeanor; (H) thirty days or less but more than five days, as a Class C misdemeanor; or (I) five days or less, or if no imprisonment is authorized, as an infraction.",Classification
+152,112709,3,2,"An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation except that: (1) the maximum fine that may be imposed is the fine authorized by the statute describing the offense, or by this chapter, whichever is the greater; and (2) the maximum term of imprisonment is the term authorized by the statute describing the offense. 18 U. S. C. § 3559 (1982 ed., Supp. II). The Government explains that limiting the length of a juvenile detention to that authorized for an adult under § 3581(b) could in some circumstances have appeared to authorize a longer sentence than an adult could have received, when the offense involved was assigned no letter grade in its defining statute. Thus an offense created without letter grade and carrying a maximum term of two years would be treated under § 3559(a) as a class E felony. Section 3581(b) provides that a class E felony carried a maximum of three years. Regardless of that classification, § 3559(b)(2) would certainly preclude sentencing any adult offender to more than two years. Tension would arise, however, where a juvenile had committed the act constituting the offense. Insofar as § 5037(c) capped the juvenile detention by reference to what was authorized for an adult, the maximum would have been two years; but insofar as it capped it by reference to what was authorized by § 3581(b), the limit might have appeared to be three. It was to break this tension, according to the Government, that the reference to § 3581(b) was deleted guaranteeing that no juvenile would be given detention longer than the maximum adult sentence authorized by the statute creating the offense. The amendment also, the Government says, left the law clear in its reference to the statute creating the offense as the measure of an authorized sentence. This conclusion is said to be confirmed by a statement in the House Report that the amendment delet[es an] incorrect cross-referenc[e], H. R. Rep. No. 99-797, p. 21 (1986), which, the Government argues, suggests that no substantive change was intended. Brief for United States 20, n. 4. We agree with the Government's argument up to a point. A sentencing court could certainly have been confused by the reference to § 3581(b). A sentencing judge considering a juvenile defendant charged with an offense bearing no letter classification, and told to look for the maximum term of imprisonment that would be authorized [according to letter grade] by section 3581(b), would have turned first to § 3559(a) to obtain a letter classification. The court perhaps would have felt obliged to ignore the provision of § 3559(b) that the maximum term of imprisonment is the term authorized by the statute describing the offense in favor of a longer term provided for by the appropriate letter grade in § 3581(b). Indeed, the sentencing judge would have been faced with this puzzle in virtually every case, since the system of classifying by letter grades adopted in 1984 was only to be used in future legislation defining federal criminal offenses. See Brief for United States 16. No federal offense on the books at the time the Sentencing Reform Act of 1984 was adopted carried a letter grade in its defining statute, and Congress has used the device only rarely in the ensuing years. Thus, while it included a reference to § 3581(b), § 5037(c) was ambiguous. This ambiguity was resolved by an amendment that, absent promulgation of the Guidelines, might have left the question of the authorized maximum term of imprisonment to be determined only by reference to the penalty provided by the statute creating the offense, whether expressed as a term of years or simply by reference to letter grade. The legislative history does not prove, however, that Congress intended authorized to refer solely to the statute defining the offense despite the enactment of a statute requiring application of the Sentencing Guidelines, a provision that will generally provide a ceiling more favorable to the juvenile than that contained in the offense-defining statute. Indeed, the contrary intent would seem the better inference. The Justice Department analysis of the Criminal Law and Procedure Technical Amendments Act of 1986, upon which the Government relies, went on to say that deleting the reference to 18 U. S. C. § 3581(b) will tie the maximum sentences for juveniles to the maximum for adults, rather than making juvenile sentences more severe than adult sentences. 131 Cong. Rec. 14177 (1985). This is an expression of purpose that today can be achieved only by reading authorized to refer to the maximum period of imprisonment that may be imposed consistently with 18 U. S. C. § 3553(b). That statute provides that [t]he court shall impose a sentence . . . within the range established for the category of offense as set forth in the Guidelines, unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. § 3553(b). The point is reinforced by other elements of the legislative history. The Senate Report accompanying the 1986 Technical Amendments Act states that the amendment makes clear that juvenile sentences are to be of equal length as those for adult offenders committing the same crime. S. Rep. No. 99-278, p. 3 (1986). This, in turn, reflects the statement in the Senate Report accompanying the Sentencing Reform Act, that the changes in juvenile sentencing law were included in order to conform it to the changes made in adult sentencing laws. S. Rep. No. 98-225, p. 155 (1983). The most fundamental of the Sentencing Reform Act's changes was, of course, the creation of the Sentencing Commission, authorized to promulgate the guidelines required for use by sentencing courts. It hardly seems likely that Congress adopted the current § 5037(c) with a purpose to conform juvenile and adult maximum sentences without intending the recently authorized Guidelines scheme to be considered for that purpose. The legislative history thus reinforces our initial conclusion that § 5037 is better understood to refer to the maximum sentence permitted under the statute requiring application of the Guidelines. [5]",Effect of classification
+153,111256,1,3,"The Court devotes little attention to the constitutionality of the purposes requirement, brushing aside this attempt by Congress to reconcile the interest in free expression with respect to images of the currency with the interest in protecting the integrity of that image for its primary purpose. In a paragraph, we are simply told that a determination of newsworthiness or educational value of an image of the currency must be based on the content of the message and that the Government will determine if that message is newsworthy in determining the applicability of the exception. Then the Court makes the sweeping statement that regulations permitting the Government to discriminate on the basis of content are per se violative of the First Amendment. [1] I do not interpret the provision to give the Government a license to determine the newsworthiness or the value of the substantive message being conveyed. Rather, giving it the liberal construction I think it deserves, the question is merely whether the image of the currency is used for such a purpose, or stated another way, whether the image is being used to convey information or express an idea. [2] That requirement is easily met — whenever the image is used in connection with a news article, it necessarily will comply with this condition unless the editor's use of the image bears no rational relationship to the information or idea he is trying to convey. [3] The key point is that he must be attempting to communicate: he must be using the symbol as expression protected by the First Amendment, and not merely reproducing images of the currency for some noncommunicative purpose, e. g., to facilitate counterfeiting. [4] Color and Size Requirements With respect to the cover illustrations contained in the record in this case, it would appear that Time's interest is in reproducing realistic illustrations of the currency, and the more realistic the illustration, the more effective the communication. However, the very heart of the Government's interest grows stronger the more realistic the illustration is. Stated another way, Time does not want to use illustrations of the currency which plainly appear spurious; the Government's precise legitimate interest is to permit only those illustrations which do plainly appear spurious. Time notes that one of these pictures may be worth a thousand words; the Government notes one of these pictures or negatives may be worth a thousand dollars. Time particularly objects to the color requirement — it wants to print pictures of money in its actual color. [5] Time's communicative interest in printing pictures of the currency in color seems weak. [6] We are not told that use of the actual color of the currency expresses an idea itself, aside from communicating information about the color of the currency. But that is not necessary to communicate the substantive ideas Time is attempting to convey, any more than the size of the bill must be communicated by showing its actual size. The use of the bill's actual color adds little if anything to the message, particularly because the currency itself is not especially colorful. A reproduction which meets the size requirements, to be sure, advances the Government interest in preventing deception, but the color requirement advances the interest as well, in a manner that is independent of the size requirement. Imposing both requirements reduces the likelihood of the evil Congress legitimately desired to prevent to a greater extent than imposing just one of the requirements. To argue, as does Time, that the color requirement is invalid would invalidate the size requirement as well. Time argues that the color requirement is invalid because some of its covers violate the color requirement and yet none of them has the remotest capacity for deception or could otherwise be used to make a counterfeit. Brief for Appellee 43. The same argument could be made if the covers violated the size requirement. The reasons Time points to in arguing that its covers pose no real risk as instruments for fraud — such factors as the kind of paper used for its covers, and the fact that images of the bills are partially obscured or distorted — would be equally applicable if Time violated both the color and size requirements. The point is that whatever capacity the covers have as instruments of deception is necessarily enhanced if the bill is shown in its actual color, just as it is enhanced if the bill is reproduced in its actual size. Moreover, Time all but ignores the potential variety of ways in which a negative could be used for illegitimate purposes. The size requirement is meaningless, or always met, with respect to a negative. The point, of course, is that a negative that makes a print meeting the size requirement can also make a print the exact size of a bill. If it is a black and white negative, all that can be produced is a black and white reproduction of the bill; if it is a color negative, a color reproduction may be made. The fact that the bill is partially obscured in the photographs or even in the negatives is not dispositive; the statute prohibits making color photographs of even parts of bills for a reason. [7] The statute at issue in this case is but one part of a comprehensive scheme to be sure; but that cannot render it susceptible to invalidation on the ground that the other portions of the scheme largely meet the governmental interest. The fact that there are other statutes available to punish counterfeiters does not negate the Government's interest here; Congress may provide alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. United States v. O'Brien, 391 U. S. 367, 380 (1968). This statute protects the gullible as well as the shrewd, and the Government need not wait until near perfect forgeries are rolling off the presses to act. In conclusion, this statute is one weapon in an arsenal designed to deprive would-be counterfeiters and defrauders of the tools of deception and, given the strength of the state interest and the presumption of constitutionality which attaches to an Act of Congress, I believe the color and size requirements are permissible methods of minimizing the risk of fraud as well as counterfeiting, and can have only a minimal impact on Time's ability to communicate effectively. It may well be, as Time argues, that Congress can do a much better job in preventing counterfeiting than the present § 474 and § 504, Brief for Appellee 46. The question for us, of course, is not whether Congress could have done a better job, but whether the job it did violates Time's right to free expression. It does not: Time is free to publish the symbol it wishes to publish and to express the messages it wishes to convey by use of that symbol; it merely must comply with restrictions on the manner of printing that symbol which are reasonably related to the strong governmental interests in preventing counterfeiting and deceptive uses of likenesses of the currency. Accordingly, I concur in the judgment of the Court in part, and dissent in part.                  B                                A B",Purposes Requirement
+154,108221,1,1,"The point of departure for considering the purpose and effect of the Fourteenth Amendment with respect to the suffrage should be, I thin, the pre-existing provisions of the Constitution. Article I, § 2, provided that in determining the number of Representatives to which a State was entitled, only three-fifths of the slave population should be counted. [4] The section also provided that the qualifications of voters for such Representatives should be the same as those established by the States for electors of the most numerous branch of their respective legislatures. Article I, § 4, provided that, subject to congressional veto, the States might prescribe the times, places, and manner of holding elections for Representatives. Article II, § 1, provided that the States might direct the manner of choosing electors for President and Vice President, except that Congress might fix a uniform time for the choice. [5] Nothing in the original Constitution controlled the way States might allocate their political power except for the guarantee of a Republican Form of Government, which appears in Art. IV, § 4. [6] No relevant changes in the constitutional structure were made until after the Civil War. At the close of that war, there were some four million freed slaves in the South, none of whom were permitted to vote. The white population of the Confederacy had been overwhelmingly sympathetic with the rebellion. Since there was only a comparative handful of persons in these States who were neither former slaves nor Confederate sympathizers, the place where the political power should be lodged was a most vexing question. In a series of proclamations in the summer of 1865, President Andrew Johnson had laid the groundwork for the States to be controlled by the white populations which had held power before the war, eliminating only the leading rebels and those unwilling to sign a loyalty oath. [7] The Radicals, on the other hand, were ardently in favor of Negro suffrage as essential to prevent resurgent rebellion, requisite to protect the freedmen, and necessary to ensure continued Radical control of the government. This ardor cooled as it ran into northern racial prejudice. At that time, only six States—Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and New York— permitted Negroes to vote, and New York imposed special property and residency requirements on Negro voters. [8] In referenda late that year, enfranchising proposals were roundly beaten in Connecticut, Wisconsin, Minnesota, the Territory of Colorado, and the District of Columbia. Gillette, supra, n. 3, at 25-26. Such popular rebuffs led the Radicals to pull in their horns and hope for a protracted process of reconstruction during which the North could be educated to the advisability of Negro suffrage, at least for the South. In the meantime, of course, it would be essential to bar southern representation in Congress lest a combination of southerners and Democrats obtain control of the government and frustrate Radical goals. The problem of congressional representation was acute. With the freeing of the slaves, the Three-Fifths Compromise ceased to have any effect. While predictions of the precise effect of the change varied with the person doing the calculating, the consensus was that the South would be entitled to at least 15 new members of Congress, and, of course, a like number of new presidential electors. The Radicals had other rallying cries which they kept before the public in the summer of 1865, but one author gives this description of the mood as Congress convened: [9] Of all the movements influencing the Fourteenth Amendment which developed prior to the first session of the Thirty-ninth Congress, that for Negro suffrage was the most outstanding. The volume of private and public comment indicates that it was viewed as an issue of prime importance. The cry for a changed basis of representation was, in reality, subsidiary to this, and was meant by Radicals to secure in another way what Negro suffrage might accomplish for them: removal of the danger of Democratic dominance as a consequence of Southern restoration. The danger of possible repudiation of the national obligations, and assumption of the rebel debt, was invariably presented to show the need for Negro suffrage or a new basis of representation. Sentiment for disqualification of ex-Confederates, though a natural growth, well suited such purposes. The movement to guarantee civil rights, sponsored originally by the more conservative Republicans, received emphasis from Radicals only when state elections indicated that suffrage would not serve as a party platform. When Congress met, the Radicals, led by Thaddeus Stevens, were successful in obtaining agreement for a Joint Committee on Reconstruction, composed of 15 members, to inquire into the condition of the States which formed the so-called confederate States of America, and report whether they, or any of them, are entitled to be represented in either House of Congress . . . . Cong. Globe, 39th Cong., 1st Sess., 30, 46 (1865) (hereafter Globe). All papers relating to representation of the Southern States were to be referred to the Committee of Fifteen without debate. The result, which many had not foreseen, was to assert congressional control over Reconstruction and at the same time to put the congressional power in the hands of a largely Radical secret committee. The Joint Committee began work with the beginning of 1866, and in due course reported a joint resolution, H. R. 51, to amend the Constitution. The proposal would have based representation and direct taxes on population, with a proviso that whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation. Globe 351. The result, if the Southern States did not provide for Negro suffrage, would be a decrease in southern representation in Congress and the electoral college by some 24 seats from their pre-war position instead of an increase of 15. The House, although somewhat balky, approved the measure after lengthy debate. Globe 538. The Senate proved more intractable. An odd combination of Democrats, moderate Republicans, and extreme Radicals combined to defeat the measure, with the Radicals basing their opposition largely on the fear that the proviso would be read to authorize racial voter qualifications and thus prevent Congress from enfranchising the freedmen under powers assertedly granted by other clauses of the Constitution. See, e. g., Globe 673-687 (Sen. Sumner). At about this same time the Civil Rights Bill and the Second Freedmen's Bureau Bill were being debated. Both bills provided a list of rights secured, not including voting. [10] Senator Trumbull, who reported the Civil Rights Bill on behalf of the Senate Judiciary Committee, stated: I do not want to bring up the question of negro suffrage in the bill. Globe 606. His House counterpart exhibited the same reluctance. Globe 1162 (Cong. Wilson of Iowa). Despite considerable uncertainty as to the constitutionality of the measures, both ultimately passed. In the midst of the Senate debates on the basis of representation, President Johnson vetoed the Freedmen's Bureau Bill, primarily on constitutional grounds. This veto, which was narrowly sustained, was followed shortly by the President's bitter attack on Radical Reconstruction in his Washington's Birthday speech. These two actions, which were followed a month later by the veto of the Civil Rights Bill, removed any lingering hopes among the Radicals that Johnson would support them in a thoroughgoing plan of reconstruction. By the same token they increased the Radicals' need for an articulated plan of their own to be put before the country in the upcoming elections as an alternative to the course the President was taking. The second major product of the Reconstruction Committee, before the resolution which became the Fourteenth Amendment, was a proposal to add an equal rights provision to the Constitution. This measure, H. R. 63, which foreshadowed § 1 of the Fourteenth Amendment, read as follows: The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. Globe 1034. It was reported by Congressman Bingham of Ohio, who later opposed the Civil Rights Bill because he believed it unconstitutional. Globe 1292-1293. The amendment immediately ran into serious opposition in the House and the subject was dropped. [11] Such was the background of the Fourteenth Amendment. Congress, at loggerheads with the President over Reconstruction, had not come up with a plan of its own after six months of deliberations; both friends and foes prodded it to develop an alternative. The Reconstruction Committee had been unable to produce anything which could even get through Congress, much less obtain the adherence of three-fourths of the States. The Radicals, committed to Negro suffrage, were confronted with widespread public opposition to that goal and the necessity for a reconstruction plan that could do service as a party platform in the elections that fall. The language of the Fourteenth Amendment must be read with awareness that it was designed in response to this situation.",Historical Setting[3]
+155,108221,1,2,"Sections 1 and 2 of the Fourteenth Amendment as originally reported read as follows: [12] SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age. Globe 2286. In the historical context, no one could have understood this language as anything other than an abandonment of the principle of Negro suffrage, for which the Radicals had been so eager. By the same token, the language could hardly have been understood as affecting the provisions of the Constitution placing voting qualifications in the hands of the States. Section 1 must have been seen as little more than a constitutionalization of the 1866 Civil Rights Act, concededly one of the primary goals of that portion of the Amendment. [13] While these conclusions may, I think, be confidently asserted, it is not so easy to explain just how contemporary observers would have construed the three clauses of § 1 to reach this result. [14] No doubt in the case of many congressmen it simply never occurred to them that the States' longstanding plenary control over voter qualifications would be affected without explicit language to that effect. And since no speaker during the debates on the Fourteenth Amendment pursued the contention that § 1 would be construed to include the franchise, those who took the opposite view rarely explained how they arrived at their conclusions. In attempting to unravel what was seldom articulated, the appropriate starting point is the fact that the framers of the Amendment expected the most significant portion of § 1 to be the clause prohibiting state laws which shall abridge the privileges or immunities of citizens of the United States. These privileges were no doubt understood to include the ones set out in the first section of the Civil Rights Act. To be prohibited by law from enjoying these rights would hardly be consistent with full membership in a civil society. The same is not necessarily true with respect to prohibitions on participation in the political process. Many members of Congress accepted the jurisprudence of the day, in which the rights of man fell into three categories: natural, civil, and political. The privileges of citizens, being civil rights, were distinct from the rights arising from governmental organization, which were political in character. [15] Others no doubt relied on the experience under the similar language of Art. IV, § 2, which had never been held to guarantee the right to vote. The remarks of Senator Howard of Michigan, who as spokesman for the Joint Committee explained in greater detail than most why the Amendment did not reach the suffrage, contain something of each view. See Globe 2766, quoted infra, at 187; nn. 56 and 57, infra; cf. Blake v. McClung, 172 U. S. 239, 256 (1898) (dictum). Since the Privileges and Immunities Clause was expected to be the primary source of substantive protection, the Equal Protection and Due Process Clauses were relegated to a secondary role, as the debates and other contemporary materials make clear. [16] Those clauses, which appear on their face to correspond with the latter portion of § 1 of the Civil Rights Act, see n. 13, supra, and to be primarily concerned with person and property, would not have been expected to enfranchise the freedmen if the Privileges and Immunities Clause did not. Other members of Congress no doubt saw § 2 of the proposed Amendment as the Committee's resolution of the related problems of suffrage and representation. Since that section did not provide for enfranchisement, but simply reduced representation for disfranchisement, any doubts about the effect of the broad language of § 1 were removed. Congressman Bingham, who was primarily responsible for the language of § 1, stated this view. Globe 2542, quoted infra, at 185. Finally, characterization of the Amendment by such figures as Stevens and Bingham in the House and Howard in the Senate, not contested by the Democrats except in passing remarks, was no doubt simply accepted by many members of Congress; they, repeating it, gave further force to the interpretation, with the result that, as will appear below, not one speaker in the debates on the Fourteenth Amendment unambiguously stated that it would affect state voter qualifications, and only three, all opponents of the measure, can fairly be characterized as raising the possibility. [17] Further evidence of this original understanding can be found in later events. The 39th Congress, which proposed the Fourteenth Amendment, also enacted the first Reconstruction Act, c. 153, 14 Stat. 428 (1867). This Act required, as a condition precedent to readmission of the Southern States, that they adopt constitutions providing that the elective franchise should be enjoyed by all male citizens over the age of 21 who had been residents for more than one year and were not disfranchised for treason or common-law felony; even so, no State would be readmitted until a legislature elected under the new Constitution had ratified the proposed Fourteenth Amendment and that Amendment had become part of the Constitution. The next development came when the ratification drive in the North stalled. After a year had passed during which only one Northern State had ratified the proposed Fourteenth Amendment, Arkansas was readmitted to the Union by the Act of June 22, 1868, 15 Stat. 72. This readmission was based on the fundamental condition that the state constitution should not be amended to restrict the franchise, except with reference to residency requirements. Three days later the Act of June 25, 1868, 15 Stat. 73, held out a promise of similar treatment to North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida if they would ratify the Fourteenth Amendment. By happy coincidence, the assent of those six States was just sufficient to complete the ratification process. It can hardly be suggested, therefore, that the fundamental condition was exacted from them as a measure of caution lest the Fourteenth Amendment fail of ratification. The 40th Congress, not content with enfranchisement in the South, proposed the Fifteenth Amendment to extend the suffrage to northern Negroes. See Gillette, supra, n. 3, at 46. This fact alone is evidence that they did not understand the Fourteenth Amendment to have accomplished such a result. Less well known is the fact that the 40th Congress considered and very nearly adopted a proposed amendment which would have expressly prohibited not only discriminatory voter qualifications but discriminatory qualifications for office as well. Each House passed such a measure by the required two-thirds margin. Cong. Globe, 40th Cong., 3d Sess., 1318, 1428 (1869). A conference committee, composed of Senators Stewart and Conkling and Representatives Boutwell, Bingham, and Logan, struck out the officeholding provision, id., at 1563, 1593, and with Inauguration Day only a week away, both Houses accepted the conference report. Id., at 1564, 1641. See generally Gillette 58-77. While the reasons for these actions are unclear, it is unlikely that they were provoked by the idea that the Fourteenth Amendment covered the field; such a rationale seemingly would have made the enfranchising provision itself unnecessary. The 41st Congress readmitted the remaining three States of the Confederacy. The admitting act in each case recited good-faith ratification of the Fourteenth and Fifteenth Amendments, and imposed the fundamental conditions that the States should not restrict the elective franchise [18] and [t]hat it shall never be lawful for the said State to deprive any citizen of the United States, on account of his race, color, or previous condition of servitude, of the right to hold office under the constitution and laws of said State. Act of Jan. 26, 1870, c. 10, 16 Stat. 62, 63 (Virginia); Act of Feb. 23, 1870, c. 19, 16 Stat. 67, 68 (Mississippi); Act of Mar. 30, 1870, c. 39, 16 Stat. 80, 81 (Texas). These materials demonstrate not only that § 1 of the Fourteenth Amendment is susceptible of an interpretation that it does not reach suffrage qualifications, but that this is the interpretation given by the immediately succeeding Congresses. Such an interpretation is the most reasonable reading of the section in view of the background against which it was proposed and adopted, particularly the doubts about the constitutionality of the Civil Rights Act, the prejudice in the North against any recognition of the principle of Negro suffrage, and the basic constitutional structure of leaving suffrage qualifications with the States. [19] If any further clarification were needed, one would have thought it provided by the second section of the same Amendment, which specifically contemplated that the right to vote would be denied or abridged by the States on racial or other grounds. As a unanimous Court once asked, Why this, if it was not in the power of the [state] legislature to deny the right of suffrage to some male inhabitants? Minor v. Happersett, 21 Wall. 162, 174 (1875). The Government suggests that the list of protected qualifications in § 2 is no more than descriptive of voting laws as they then stood. Brief for the United States, Nos. 46, Orig., and 47, Orig., 75. This is wholly inaccurate. Aside from racial restrictions, all States had residency requirements and many had literacy, property, or taxation qualifications. On the other hand, several of the Western States permitted aliens to vote if they had satisfied certain residency requirements and had declared their intention to become citizens. [20] It hardly seems necessary to observe that the politicians who framed the Fourteenth Amendment were familiar with the makeup of the electorate. In any event, the congressional debates contain such proof in ample measure. [21] Assuming, then, that § 2 represents a deliberate selection of the voting qualifications to be penalized, what is the point of it? The Government notes that it was intended—although it has never been used—to provide a remedy against exclusion of the newly freed slaves from the vote. Brief for the Defendant, Nos. 43, Orig., and 44, Orig., 20. Undoubtedly this was the primary purpose. But the framers of the Amendment, with their attention thus focused on racial voting qualifications, could hardly have been unaware of § 1. If they understood that section to forbid such qualifications, the simple means of penalizing this conduct would have been to impose a reduction of representation for voting discrimination in violation of § 1. Their adoption instead of the awkward phrasing of § 2 is therefore significant. To be sure, one might argue that § 2 is simply a rhetorical flourish, and that the qualifications listed there are merely the ones which the framers deemed to be consistent with the alleged prohibition of § 1. This argument is not only unreasonable on its face and untenable in light of the historical record; it is fatal to the validity of the reduction of the voting age in § 302 of the Act before us. The only sensible explanation of § 2, therefore, is that the racial voter qualifications it was designed to penalize were understood to be permitted by § 1 of the Fourteenth Amendment. The Amendment was a halfway measure, adopted to deprive the South of representation until it should enfranchise the freedmen, but to have no practical effect in the North. It was politically acceptable precisely because of its regional consequences and its avoidance of an explicit recognition of the principle of Negro suffrage. As my Brother BLACK states: [I]t cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. Ante, at 127. The detailed historical materials make this unmistakably clear.",The Language of the Amendment and Reconstruction.Measures
+156,108221,1,3,"The first place to look for the understanding of the framers of the Fourteenth Amendment is the Journal of the Joint Committee on Reconstruction. [22] The exact sequence of the actions of this Committee presumably had little or no effect on the members of Congress who were not on the Committee, for the Committee attempted to keep its deliberations secret, [23] and the Journal itself was lost for nearly 20 years. [24] Nevertheless the Journal, although only a record of proposals and votes, illustrates the thoughts of those leading figures of Congress who were members and participated in the drafting of the Amendment. Two features emerge from such a review with startling clarity. First, the Committee regularly rejected explicitly enfranchising proposals in favor of plans which would postpone enfranchisement, leave it to congressional discretion, or abandon it altogether. Second, the abandonment of Negro suffrage as a goal exactly corresponded with the adoption of provisions to reduce representation for discriminatory restrictions on the ballot. This correspondence was present from the start. Five plans were proposed to deal with representation. One would have prohibited racial qualifications for voters and based representation on the whole number of citizens in the State; the other four proposals contained no enfranchising provision but in various ways would have reduced representation for States where the vote was racially restricted. Kendrick 41-44. A subcommittee reduced the five proposals to two, one prohibiting discrimination and the other reducing representation where it was present. On Stevens' motion the latter alternative was accepted by a vote of 11 to 3, Kendrick 51; with minor changes it was subsequently reported as H. R. 51. The subcommittee also proposed that whichever provision on the basis of representation was adopted, the Congress should be empowered to legislate to secure all citizens the same political rights and privileges and also equal protection in the enjoyment of life, liberty and property. Kendrick 51. After the Committee reported H. R. 51, it turned to consideration of this proposal. At a meeting attended by only 10 members, a motion to strike out the clause authorizing Congress to legislate for equal political rights and privileges lost by a vote of six to four. Kendrick 57. At a subsequent meeting, however, Bingham had the subcommittee proposal replaced with another which did not mention political rights and privileges, but was otherwise quite similar. Kendrick 61; see the opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL, post, at 258-259, for the text of the two provisions. The Committee reported the substitute as H. R. 63. In the House so much concern was expressed over the centralization of power the amendment would work—a few said it would even authorize Congress to regulate the suffrage—that the matter was dropped. Post, at 260. The Fourteenth Amendment had as its most direct antecedent a proposal drafted by Robert Dale Owen, who was not a member of Congress, and presented to the Joint Committee by Stevens. [25] Originally the plan provided for mandatory enfranchisement in 1876 and for reduction of representation until that date. Kendrick 82-84. However, Stevens was pressured by various congressional delegations who wanted nothing to do with Negro suffrage, even at a remove of 10 years. [26] He therefore successfully moved to strike out the enfranchising provision and correspondingly to abolish the 10-year limitation on reduction of representation for racial discrimination. The motion carried by a vote of 12 to 2. Kendrick 101. Bingham was then successful in replacing § 1 of Owen's proposal, which read: No discrimination shall be made by any State, or by the United States, as to the civil rights of persons, because of race, color, or previous condition of servitude with the following now-familiar language: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Kendrick 106. The summary style of the Journal leaves unclear the reasons for the change. However, Bingham himself had rather consistently voted against proposals for direct and immediate enfranchisement, [27] and on the face of things it seems unlikely that the other members of the Joint Committee understood his provision to be an enfranchising proposal. [28] That they did not so understand is demonstrated by the speeches in the debates on the floor. [29] Before I examine those debates, a word of explanation is in order. For obvious reasons, the discussions of voter qualifications in the 39th Congress and among the public were cast primarily in terms of racial disqualifications. This does not detract from their utility as guides to interpretation. When an individual speaker said that the Amendment would not result in the enfranchisement of Negroes, he must have taken one of two views: either the Amendment did not reach voter qualifications at all; or it set standards limiting state restrictions on the ballot, but those standards did not prohibit racial discrimination. I have already set out some of the reasons which lead me to conclude that the former interpretation is correct, and that it is the understanding shared by the framers of the Amendment, as well as by almost all of the opponents. The mere statement of the latter position appears to me to be a complete refutation of it. Even on its wholly unsupportable assumptions (1) that certain framers of the Amendment contemplated that the privileges and immunities of citizens included the vote, (2) that they intended to permit state laws to abridge the privileges and immunities of citizens whenever it was rational to do so, and (3) that they agreed on the rationality of prohibiting the freed slaves from voting, this remarkable theory still fails to explain why they understood the Amendment to permit racial voting qualifications in the free States of the North.",The Joint Committee
+157,108221,1,4,"On May 8, 1866, Thaddeus Stevens led off debate on H. R. 127, the Joint Resolution proposing the Fourteenth Amendment. After explaining the delay of the Joint Committee in coming up with a plan of reconstruction, he apologized for his proposal in advance: This proposition is not all that the committee desired. It falls far short of my wishes, but it fulfills my hopes. I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. Globe 2459. In the climate of the times, Stevens could hardly have been understood as referring to anything other than the failure of the measure to make some provision for the enfranchisement of the freedmen. However, lest any mistake be made, he recounted the history of the Committee's prior effort in the field of representation and suffrage, H. R. 51, which would surely have secured the enfranchisement of every citizen at no distant period. That measure was dead, slaughtered by a puerile and pedantic criticism, and unless this (less efficient, I admit) shall pass, its death has postponed the protection of the colored race perhaps for ages. Ibid. With this explanation made, Stevens turned to a section-by-section study of the proposed resolution. The results to be achieved by § 1, as he saw it, would be equal punishment for crime, equal entitlement to the benefits of [w]hatever law protects the white man, equal means of redress, and equal competence to testify. Ibid. If he thought the section provided equal access to the polls, despite his immediately preceding apology for the fact that it did not, his failure to mention that application is remarkable. [30] Turning then to § 2, Stevens again discussed racial qualification for voting. He explained the section as follows: If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive. Ibid. Stevens recognized that it might take several years for the coercive effect of the Amendment to result in Negro suffrage, but since this would give time for education and enlightenment of the freedmen, That short delay would not be injurious. Ibid. He did not indicate that he believed it would be unconstitutional. He admitted that § 2 was not so good as the proposal which had been defeated in the Senate, for that, by reducing representation by all the members of a race if any one was discriminated against, would have hastened full enfranchisement. Section 2 allowed proportional credit. But it is a short step forward. The large stride which we in vain proposed is dead . . . . Globe 2460. I have dealt at length with Stevens' remarks because of his prominent position in the House and in the Joint Committee. The remaining remarks, except for Bingham's summation, can be treated in more summary fashion. Of the supporters of the Amendment, Garfield of Ohio, [31] Kelley of Pennsylvania, [32] Boutwell of Massachusetts (a member of the Joint Committee), [33] Eliot of Massachusetts, [34] Beaman of Michigan, [35] and Farnsworth of Illinois, [36] expressed their regret that the Amendment did not prohibit restrictions on the franchise. As the quotations set out in the margin indicate, the absence of such a prohibition was generally attributed to prejudice in the Congress, in the States, or both, to such an extent that an enfranchising amendment could not pass. This corresponds with the first part of Stevens' introductory speech. Other supporters of the Amendment obviously based their remarks on their understanding that it did not affect state laws imposing discriminatory voting qualifications, but did not indicate that the omission was a drawback in their view. In this group were Thayer of Pennsylvania, [37] Broomall of Pennsylvania, [38] Raymond of New York, [39] McKee of Kentucky, [40] Miller of Pennsylvania, [41] Banks of Massachusetts, [42] and Eckley of Ohio. [43] The remaining members of the House who supported the Fourteenth Amendment either did not speak at all or did not address themselves to the suffrage issue in any very clear terms. Those in the latter group who gave speeches on the proposed Amendment included Spalding of Ohio, [44] Longyear of Michigan, [45] and Shellabarger of Ohio. [46] The remaining Republican members of the Joint Committee—Washburne of Illinois, Morrill of Vermont, Conkling of New York, and Blow of Missouri —did not participate in the debates over the Amendment. In the opposition to the Amendment were only the handful of Democrats. Even they, with one seeming exception, did not assert that the Amendment was applicable to suffrage, although they would have been expected to do so if they thought such a reading plausible. Finck of Ohio and Shanklin of Kentucky did not even mention Negro suffrage in their attacks on the Amendment, although Finck discussed the reasons why the Southern States could not be expected to ratify it, Globe 2460-2462, and Shanklin characterized the Amendment as tyrannical and oppressive. Globe 2501. Eldridge of Wisconsin [47] and Randall of Pennsylvania [48] affirmatively indicated their understanding that with the Amendment the Radicals had at least temporarily abandoned their crusade for Negro suffrage, as did Finck when the measure returned from the Senate with amendments. [49] The other two Democrats to participate in the three days of debate on H. R. 127, Boyer of Pennsylvania and Rogers of New Jersey, have been a source of great comfort to those who set out to prove that the history of the Fourteenth Amendment is inconclusive on this issue. Each, in the course of a lengthy speech, included a sentence which, taken out of context, can be read to indicate a fear that § 1 might prohibit racial restrictions on the ballot. Boyer said, The first section embodies the principles of the civil rights bill, and is intended to secure ultimately, and to some extent indirectly, the political equality of the negro race. Globe 2467. Rogers, commenting on the uncertain scope of the Privileges and Immunities Clause, observed: The right to vote is a privilege. Globe 2538. While these two statements are perhaps innocuous enough to be left alone, it is noteworthy that each speaker had earlier in the session delivered a tirade against the principle of Negro suffrage; [50] if either seriously believed that the Fourteenth Amendment might enfranchise the freedmen, he was unusually calm about the fact. That they did not seriously interpret the Amendment in this way is indicated as well by other portions of their speeches. [51] Two other opponents of the Fourteenth Amendment, Phelps of Maryland and Niblack of Indiana, made statements which have been adduced to show that there was no consensus on the applicability of the Fourteenth Amendment to suffrage laws. Phelps voiced his sentiments on May 5, three days before the beginning of debate. [52] In the course of a speech urging a soft policy on reconstruction, he expressed the fear that the Amendment would authorize Congress to define the privileges of citizens to include the suffrage—or indeed that it might have that effect proprio vigore. Globe 2398. Phelps did not repeat this sentiment after he was contradicted by speaker after speaker during the debates proper; indeed, he did not take part in the debates at all, but simply voted against the Amendment, along with most of his Democratic colleagues. Globe 2545. [53] As for Niblack, on the first day of debate he made the following remarks: I give notice that I will offer the following amendment if I shall have the opportunity: `Add to the fifth section as follows: ` Provided, That nothing contained in this article shall be so construed as to authorize Congress to regulate or control the elective franchise within any State, or to abridge or restrict the power of any State to regulate or control the same within its own jurisdiction, except as in the third section hereof prescribed.'  Globe 2465. Like Phelps, Niblack found it unnecessary to participate in the debates. He was not heard from again until the vote on the call for the previous question. As Garfield ascertained at the time, the only opportunity to amend H. R. 127 would arise if the demand was voted down. Niblack voted to sustain it. Globe 2545. Debate in the House was substantially concluded by Bingham, the man primarily responsible for the language of § 1. Without equivocation, he stated: The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States. The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save, indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people. Globe 2542. Stevens then arose briefly in rebuttal. He attacked Bingham for saying in another portion of his speech that the disqualification provisions of § 3 were unenforceable. He did not contradict—or even refer to—Bingham's interpretation of §§ 1 and 2. Globe 2544. The vote was taken and the resolution passed immediately thereafter. Globe 2545. To say that Stevens did not contradict Bingham is to minimize the force of the record. Not once, during the three days of debate, did any supporter of the Amendment criticize or correct any of the Republicans or Democrats who observed that the Amendment left the ballot exclusively under the control of the States. Globe 2542 (Bingham). This fact is tacitly admitted even by those who find the debates inconclusive. The only contrary authority they can find in the debates is the pale remarks of the four Democrats already discussed. [54] In the Senate, which did not have a gag rule, matters proceeded at a more leisurely pace. The introductory speech would normally have been given by Senator Fessenden of Maine, the Chairman of the Joint Committee on behalf of the Senate, but he was still weak with illness and unable to deliver a lengthy speech. The duty of presenting the views of the Joint Committee therefore devolved on Senator Howard of Michigan. [55] Howard minced no words. He stated that the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depotism [ sic ]. Globe 2766. The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right. Ibid. Howard stated that while he personally would have preferred to see the freedmen enfranchised, the Committee was confronted with the necessity of proposing an amendment which could be ratified. The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. Ibid. Howard's forthright attempt to prevent misunderstanding was completely successful insofar as the Senate was concerned; at least, no one has yet discovered a remark during the Senate debates on the proposed Fourteenth Amendment which indicates any contrary impression. [56] For some, however, time has muddied the clarity with which he spoke. [57] The Senate, like the House, made frequent reference to the fact that the proposed amendment would not result in the enfranchisement of the freedmen. The supporters who expressed their regret at the fact were Wade of Ohio, [58] Poland of Vermont, [59] Stewart of Nevada, [60] Howe of Wisconsin, [61] Henderson of Missouri, [62] and Yates of Illinois. [63] The remarks of Senator Sherman of Ohio, whose support for the amendment was lukewarm, see Globe 2986, seem to have been based on the common interpretation. [64] Doolittle of Wisconsin, whose support for the President resulted in his virtually being read out of the Republican Party, proposed to base representation on adult male voters. Globe 2942. In a discussion with Senator Grimes of Iowa, a member of the Joint Committee, about the desirability of this change, Doolittle defended himself by pointing out that: Your amendment proposes to allow the States to say who shall vote. Globe 2943. Grimes did not respond. Among the Democrats, no different view was expressed. Those whose remarks are informative are Hendricks of Indiana, [65] Cowan of Pennsylvania, [66] Davis of Kentucky, [67] and Johnson of Maryland. [68] Senator Howard, who had opened debate, made the last remarks in favor of the Amendment. He said: We know very well that the States retain the power, which they have always possessed, of regulating the right of suffrage in the States. It is the theory of the Constitution itself. That right has never been taken from them; no endeavor has ever been made to take it from them; and the theory of this whole amendment is, to leave the power of regulating the suffrage with the people or Legislatures of the States, and not to assume to regulate it by any clause of the Constitution of the United States. Globe 3039. Shortly thereafter the Amendment was approved. Globe 3041-3042. In the House, there was a brief discussion of the Senate amendments and the measure generally, chiefly by the Democrats. Stevens then concluded the debate as he had begun it, expressing his regret that the Amendment would not enfranchise the freedmen. [69] The House accepted the Senate changes and sent the measure to the States. Globe 3149.",In Congress
+158,108221,1,5,"It has been suggested that despite this evidence of congressional understanding, which seems to me overwhelming, the history is nonetheless inconclusive. Primary reliance is placed on debates over H. R. 51, the Joint Committee's first effort in the field of the basis of representation. In these debates, some of the more extreme Radicals, typified by Senator Sumner of Massachusetts, suggested that Congress had power to interfere with state voter qualifications at least to the extent of enfranchising the freedmen. This power was said to exist in a variety of constitutional provisions, including Art. I, § 2, Art. I, § 4, the war power, the power over territories, the guarantee of a republican form of government, and § 2 of the Thirteenth Amendment. Those who held this view expressed concern lest the Committee's proposal be read to authorize the States to discriminate on racial grounds and stated that they could not vote for the measure if such was the correct construction. They were sometimes comforted by supporters of the committee proposal, who assured them that there would be no such effect. From these statements, and the fact that some of those who took the extreme view ultimately did vote for the proposed Fourteenth Amendment, it is sought to construct a counter-argument: if H. R. 51, properly interpreted, would not have precluded congressional exercise of power otherwise existing under the constitutional provisions referred to, then § 2 of the Fourteenth Amendment, properly interpreted, does not preclude the exercise of congressional power under §§ 1 and 5 of that Amendment. This argument, however, is even logically fallacious, and quite understandably none of the opinions filed today place much reliance on it. I do not maintain that the framers of the Fourteenth Amendment took away with one hand what they had given with the other, but simply that the Amendment must be construed as a whole, and that for the reasons already given, supra, at 167-170, the inclusion of § 2 demonstrates that the framers never intended to confer the power which my Brethren seek to find in §§ 1 and 5. Bingham, for one, distinguished between these two positions. When it was suggested in the debates over H. R. 51 that the proviso would remove pre-existing congressional power over voting qualifications, Bingham made the response quoted by my colleagues. Globe 431-432; see post, at 276-277. When it was observed during the debates over the proposed Fourteenth Amendment that § 2 demonstrated that the Amendment did not reach state control over voting qualifications, Bingham was the one making the observation. Globe 2542, quoted supra, at 185. As Bingham seems to have recognized, the sort of argument he made in connection with H. R. 51 is beside the point with respect to the Fourteenth Amendment. In any event, even disregarding its analytical difficulties, the argument is based on blatant factual shortcomings. All but one of the speakers on whose statements primary reliance is placed stated, either during the debates on the Fourteenth Amendment or subsequently, that the Amendment did not enfranchise the freedmen. [70] Finally, some of those determined to sustain the legislation now before us rely on speeches made between two and three years after Congress had sent the proposed Amendment to the States. Boutwell and Stevens in the House, and Sumner in the Senate, argued that the Fifteenth Amendment or enfranchising legislation was unnecessary because the Fourteenth Amendment prohibited racial discrimination in voter qualifications. Each had earlier expressed the opposite position. [71] Their subsequent attempts to achieve by assertion what they had not had the votes to achieve by constitutional processes can hardly be entitled to weight.",Collateral Evidence of Congressional Intent
+159,108221,1,7,"The only constitutional basis advanced in support of the lowering of the voting age is the power to enforce the Equal Protection Clause, a power found in § 5 of the Fourteenth Amendment. For the reasons already given, it cannot be said that the statutory provision is valid as declaratory of the meaning of that clause. Its validity therefore must rest on congressional power to lower the voting age as a means of preventing invidious discrimination that is within the purview of that clause. The history of the Fourteenth Amendment may well foreclose the possibility that § 5 empowers Congress to enfranchise a class of citizens so that they may protect themselves against discrimination forbidden by the first section, but it is unnecessary for me to explore that question. For I think it fair to say that the suggestion that members of the age group between 18 and 21 are threatened with unconstitutional discrimination, or that any hypothetical discrimination is likely to be affected by lowering the voting age, is little short of fanciful. I see no justification for stretching to find any such possibility when all the evidence indicates that Congress—led on by recent decisions of this Court—thought simply that 18-year-olds were fairly entitled to the vote and that Congress could give it to them by legislation. [90] I therefore conclude, for these and other reasons given in this opinion, that in § 302 of the Voting Rights Act Amendments of 1970 Congress exceeded its delegated powers.",Voting Age
+160,108221,1,8,"For reasons already stated, neither the power to regulate voting qualifications in presidential elections, asserted by my Brother BLACK, nor the power to declare the meaning of § 1 of the Fourteenth Amendment, relied on by my Brother DOUGLAS, can support § 202 of the Act. It would also be frivolous to contend that requiring States to allow new arrivals to vote in presidential elections is an appropriate means of preventing local discrimination against them in other respects, or of forestalling violations of the Fifteenth Amendment. The remaining grounds relied on are the Privileges and Immunities Clause of Art. IV, § 2, [91] and the right to travel across state lines. While the right of qualified electors to cast their ballots and to have their votes counted was held to be a privilege of citizenship in Ex parte Yarbrough, 110 U. S. 651 (1884), and United States v. Classic, 313 U. S. 299 (1941), these decisions were careful to observe that it remained with the States to determine the class of qualified voters. It was federal law, acting on this state-defined class, which turned the right to vote into a privilege of national citizenship. As the Court has consistently held, the Privileges and Immunities Clauses do not react on the mere status of citizenship to enfranchise any citizen whom an otherwise valid state law does not allow to vote. Minor v. Happersett, 21 Wall. 162, 170-175 (1875); Pope v. Williams, 193 U. S. 621, 632 (1904); Breedlove v. Suttles, 302 U. S. 277, 283 (1937); cf. Snowden v. Hughes, 321 U. S. 1, 6-7 (1944). Minors, felons, insane persons, and persons who have not satisfied residency requirements are among those citizens who are not allowed to vote in most States. [92] The Privileges and Immunities Clause of Art. IV of the Constitution is a direct descendent of Art. IV of the Articles of Confederation: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States . . . . It is inconceivable that these words when used in the Articles could have been understood to abolish state durational residency requirements. [93] There is not a vestige of evidence that any further extent was envisioned for them when they were carried over into the Constitution. And, as I have shown, when they were substantially repeated in § 1 of the Fourteenth Amendment it was affirmatively understood that they did not include the right to vote. The Privileges and Immunities Clause is therefore unavailing to sustain any portion of § 202. The right to travel across state lines, see United States v. Guest, 383 U. S. 745, 757-758 (1966), and Shapiro v. Thompson, 394 U. S. 618, 630 (1969), is likewise insufficient to require Idaho to conform its laws to the requirements of § 202. MR. JUSTICE STEWART justifies § 202 solely on the power under § 5 of the Fourteenth Amendment to enforce the Privileges and Immunities Clause of § 1 which he deems the basis for the right to travel. Post, at 285-287. I find it impossible to square the position that § 5 authorizes Congress to abolish state voting qualifications based on residency with the position that it does not authorize Congress to abolish such qualifications based on race. Since the historical record compels me to accept the latter position, I must reject the former. MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL do not anchor the right of interstate travel to any specific constitutional provision. Post, at 237-238. Past decisions to which they refer have relied on the two Privileges and Immunities Clauses, just discussed, the Due Process Clause of the Fifth Amendment, and the Commerce Clause. See Shapiro v. Thompson, 394 U. S., at 630 n. 8; id., at 663-671 (dissenting opinion). The Fifth Amendment is wholly inapplicable to state laws; and surely the Commerce Clause cannot be seriously relied on to sustain the Act here challenged. With no specific clause of the Constitution empowering Congress to enact § 202, I fail to see how that nebulous judicial construct, the right to travel, can do so.",Residency
+161,108221,1,9,"The remaining provision of the Voting Rights Act Amendments involved in these cases is the five-year suspension of Arizona's requirement that registrants be able to read the Constitution in English and to write their names. Although the issue is not free from difficulty, I am of the opinion that this provision can be sustained as a valid means of enforcing the Fifteenth Amendment. Despite the lack of evidence of specific instances of discriminatory application or effect, Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious. [94] This danger of violation of § 1 of the Fifteenth Amendment was sufficient to authorize the exercise of congressional power under § 2. Whether to engage in a more particularized inquiry into the extent and effects of discrimination, either as a condition precedent or as a condition subsequent to suspension of literacy tests, was a choice for Congress to make. [95] The fact that the suspension is only for five years will require Congress to re-evaluate at the close of that period. While a less sweeping approach in this delicate area might well have been appropriate, the choice which Congress made was within the range of the reasonable. [96] I therefore agree that § 201 of the Act is a valid exercise of congressional power to the extent it is involved in this case. I express no view about its validity as applied to suspend tests such as educational qualifications, which do not lend themselves so readily to discriminatory application or effect. For the reasons expressed in this opinion, I would grant the relief requested in Nos. 43, Orig., and 44, Orig. I would dismiss the complaint in No. 47, Orig., for failure to state a claim on which relief can be granted. In No. 46, Orig., I would grant declaratory relief with respect to the validity of § 201 of the Voting Rights Act Amendments as applied to Arizona's current literacy test; I would deny relief in all other respects, with leave to reapply to the United States District Court for the District of Arizona for injunctive relief in the event it proves necessary, which I am confident it will not. V In conclusion I add the following. The consideration that has troubled me most in deciding that the 18-year-old and residency provisions of this legislation should be held unconstitutional is whether I ought to regard the doctrine of stare decisis as preventing me from arriving at that result. For as I indicated at the outset of this opinion, were I to continue to consider myself constricted by recent past decisions holding that the Equal Protection Clause of the Fourteenth Amendment reaches state electoral processes, I would, particularly perforce of the decisions cited in n. 84, supra, be led to cast my vote with those of my Brethren who are of the opinion that the lowering of the voting age and the abolition of state residency requirements in presidential elections are within the ordinary legislative power of Congress. After much reflection I have reached the conclusion that I ought not to allow stare decisis to stand in the way of casting my vote in accordance with what I am deeply convinced the Constitution demands. In the annals of this Court few developments in the march of events have so imperatively called upon us to take a fresh hard look at past decisions, which could well be mustered in support of such developments, as do the legislative lowering of the voting age and, albeit to a lesser extent, the elimination of state residential requirements in presidential elections. Concluding, as I have, that such decisions cannot withstand constitutional scrutiny, I think it my duty to depart from them, rather than to lend my support to perpetuating their constitutional error in the name of stare decisis. In taking this position, I feel fortified by the evident malaise among the members of the Court with those decisions. Despite them, a majority of the Court holds that this congressional attempt to lower the voting age by simple legislation is unconstitutional, insofar as it relates to state elections. Despite them, four members of the Court take the same view of this legislation with respect to federal elections as well; and the fifth member of the Court who considers the legislation constitutionally infirm as regards state elections relies not at all on any of those decisions in reaching the opposite conclusion in federal elections. And of the eight members of the Court who vote to uphold the residential provision of the statute, only four appear to rely upon any of those decisions in reaching that result. In these circumstances I am satisfied that I am free to decide these cases unshackled by a line of decisions which I have felt from the start entailed a basic departure from sound constitutional principle.",Literacy
+162,1087888,2,2,"The suggestion that a state-created Integrated Bar amounts to a governmental establishment of political belief is hardly worthy of more serious consideration. Even those who would treat the Fourteenth Amendment as embracing the identical protections afforded by the First would have to recognize the clear distinction in the wording of the First Amendment between the protections of speech and religion, only the latter providing a protection against establishment. And as to the Fourteenth, viewed independently of the First, one can surely agree that a State could not create a fund to be used in helping certain political parties or groups favored by it to elect their candidates or promote their controversial causes ( ante, p. 788), any more than could Congress do so, without agreeing that this is in any way analogous to what Wisconsin has done in creating its Integrated Bar, or to what Congress has provided in the Railway Labor Act, considered in the Street case, ante, p. 740. In establishing the Integrated Bar Wisconsin has, I assume all would agree, shown no interest at all in favoring particular candidates for judicial or legal office or particular types of legislation. Even if Wisconsin had such an interest, the Integrated Bar does not provide a fixed, predictable conduit for governmental encouragement of particular views, for the Bar makes its own decisions on legislative recommendations and appears to take no action at all with regard to candidates. By the same token the weight lent to one side of a controversial issue by the prestige of government is wholly lacking here. In short, it seems to me fanciful in the extreme to find in the limited functions of the Wisconsin State Bar those risks of governmental self-perpetuation that might justify the recognition of a Constitutional protection against the establishment of political beliefs. A contrary conclusion would, it seems to me, as well embrace within its rationale the operations of the Judicial Conference of the United States, and the legislative recommendations of independent agencies such as the Interstate Commerce Commission and the Bureau of the Budget.",establishment of political views.
+163,1087888,2,3,"It is said that the Integrated Bar concept tends towards the development of some sort of a guild system. But there are no requirements of action or inaction connected with the Wisconsin Integrated Bar, as contrasted with any unintegrated bar, except for the requirement of payment of $15 annual dues. I would agree that the requirement of payment of dues could not be made the basis of limiting the profession of law to the comparatively wealthy. Cf. Griffin v. Illinois, 351 U. S. 12. Nor, doubtless, could admission to the profession be restricted to relatives of those already admitted. But there is no such guild threat presented in this situation. True, the Wisconsin Bar makes recommendations to the State Supreme Court for regulatory canons of legal ethics, and it may be supposed that the Bar is not forbidden to address the State Legislature for measures regulating in some respects the conduct of lawyers. But neither activity is the kind of direct self-regulation that was stricken down in Schechter Corp. v. United States, 295 U. S. 495. The Wisconsin Supreme Court has retained all of the traditional powers of a court to supervise the activities of practicing lawyers. It has delegated none of these to the Integrated Bar. As put by the State Supreme Court: The integrated bar has no power to discipline or to disbar any member. That power has been reserved to and not delegated by this court. The procedure under sec. 256.28, Stats., for filing complaints for discipline or disbarment in this court is unaffected by these rules. Rule 11 and Rule 7 provide an orderly and easy method by which proposals to amend or abrogate the rules of the State Bar may be brought before this court for hearing on petition. Rule 9 provides the rules of professional conduct set forth from time to time in the Canons of the Professional Ethics of the American Bar Association, as supplemented or modified by pronouncement of this court, shall be the standard governing the practice of law in this state. Prior to the adoption of the rules this court has not expressly adopted such Canons of Professional Ethics in toto. The by-laws of the State Bar provide for the internal workings of the organization and by Rule 11, sec. 2, may be amended or abrogated by resolution adopted by a vote of two-thirds of the members of the board of governors or by the members of the association themselves through the referendum procedure. As a further protection to the minority a petition for review of any change in the by-laws made by the board of governors will be entertained by the court if signed by 25 or more active members. Independently of the provisions in the rules for invoking our supervisory jurisdiction, this court has inherent power to take remedial action, on a sufficient showing that the activities or policies of the State Bar are not in harmony with the objectives for which integration was ordered or are otherwise contrary to the public interest. In re Integration of Bar, 5 Wis. 2d 618, 624-625, 93 N. W. 2d 601, 604. Moreover, it is by no means clear to me in what part of the Federal Constitution we are to find the prohibition of state-authorized self-regulation of and by an economic group that the Schechter case found in Article I as respects the Federal Government. Is state-authorized self-regulation of lawyers to be the occasion for judicial enforcement of Art. IV, § 4, which provides that The United States shall guarantee to every state in this union a Republican form of government . . .? Cf. Luther v. Borden, 7 How. 1; Pacific States Tel. & Tel. Co. v. Oregon, 223 U. S. 118.",development of a guild system.
+164,1087888,2,4,"This objection can be stated in either of two ways. First: The requirement of dues payments to be spent to further views to which the payor is opposed tends to increase the volume of the arguments he opposes and thereby to drown out his own voice in opposition, in violation of his Constitutional right to be heard. Second: The United States Constitution creates a scheme of federal and state governments each of which is to be elected on a one-man-one-vote basis and on a one-man-one-political-voice basis. Of course several persons may voluntarily cumulate their political voices, but no governmental force can require a single individual to contribute money to support views to be adopted by a democratically organized group even if the individual is also free to say what he pleases separately. It seems to me these arguments have little force. In the first place, their supposition is that the voice of a dissenter is less effective if he speaks it first in an attempt to influence the action of a democratically organized group and then, if necessary, in dissent to the recommendations of that group. This is not at all convincing. The dissenter is not being made to contribute funds to the furtherance of views he opposes but is rather being made to contribute funds to a group expenditure about which he will have something to say. To the extent that his voice of dissent can convince his lawyer associates, it will later be heard by the State Legislature with a magnified voice. In short, I think it begs the question to approach the Constitutional issue with the assumption that the majority of the Bar has a permanently formulated position which the dissenting dues payor is being required to support, thus increasing the difficulty of effective opposition to it. Moreover, I do not think it can be said with any assurance that being required to contribute to the dispersion of views one opposes has a substantial limiting effect on one's right to speak and be heard. Certainly these rights would be limited if state action substantially reduced one's ability to reach his audience. But are these rights substantially affected by increasing the opposition's ability to reach the same audience? I can conceive of instances involving limited facilities, such as television time, which may go to the highest bidder, wherein increasing the resources of the opposition may tend to reduce a dissident's access to his audience. But before the Constitution comes into play, there should surely be some showing of a relationship between required financial support of the opposition and reduced ability to communicate, a showing I think hardly possible in the case of the legislative recommendations of the Wisconsin Bar. And, aside from the considerations of freedom from compelled affirmations of belief to be discussed later, I can find little basis for a right not to have one's opposition heard. Beyond all this, the argument under discussion is contradicted in the everyday operation of our society. Of course it is disagreeable to see a group, to which one has been required to contribute, decide to spend its money for purposes the contributor opposes. But the Constitution does not protect against the mere play of personal emotions. We recognized in Hanson that an employee can be required to contribute to the propagation of personally repugnant views on working conditions or retirement benefits that are expressed on union picket signs or in union handbills. A federal taxpayer obtains no refund if he is offended by what is put out by the United States Information Agency. Such examples could be multiplied. For me, this drowning out argument falls apart upon analysis.",drowning out the voice of dissent.
+165,1087888,2,5,"It is argued that the requirement of Bar dues payments which may be spent for legislative recommendations which the payor opposes amounts to a compelled affirmation of belief of the sort this Court struck down in West Virginia Board of Education v. Barnette, 319 U. S. 624. While I agree that the rationale of Barnette is relevant, I do not think that it is in any sense controlling in the present case. Mr. Justice Jackson, writing for the Court in Barnette, did not view the issue as turning merely on one's possession of particular religious views or the sincerity with which they are held. 319 U. S., at 634. The holding of Barnette was that, no matter how strong or weak such beliefs might be, the Legislature of West Virginia was not free to require as concrete and intimate an expression of belief in any cause as that involved in a compulsory pledge of allegiance. It is in this light that one must assess the contention that, Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against ( ante, p. 788). One could as well say that the same mere difference in degree distinguishes the Barnette flag salute situation from a taxpayer's objections to the views a government agency presents, at public expense, to Congress. What seems to me obvious is the large difference in degree between, on the one hand, being compelled to raise one's hand and recite a belief as one's own, and, on the other, being compelled to contribute dues to a bar association fund which is to be used in part to promote the expression of views in the name of the organization (not in the name of the dues payor), which views when adopted may turn out to be contrary to the views of the dues payor. I think this is a situation where the difference in degree is so great as to amount to a difference in substance. In Barnette there was a governmental purpose of requiring expression of a view in order to encourage adoption of that view, much the same as when a school teacher requires a student to write a message of self-correction on the blackboard one hundred times. In the present case there is no indication of a governmental purpose to further the expression of any particular view. More than that, the State Bar's purpose of furthering expression of views is unconnected with any desire to induce belief or conviction by the device of forcing a person to identify himself with the expression of such views. True, purpose may not be controlling when the identification is intimate between the person who wishes to remain silent and the beliefs foisted upon him. But no such situation exists here where the connection between the payment of an individual's dues and the views to which he objects is factually so remote. Surely the Wisconsin Supreme Court is right when it says that petitioner can be expected to realize that everyone understands or should understand that the views expressed are those of the State Bar as an entity separate and distinct from each individual. 5 Wis. 2d, at 623, 93 N. W. 2d, at 603. Indeed, I think the extreme difficulty the Court encounters in the Street case ( ante, p. 740) in finding a mechanism for reimbursing dissident union members for their share of political expenditures is wholly occasioned by, and is indicative of, the many steps of changed possession, ownership, and control of dues receipts and the multiple stages of decision making which separate the dues payor from the political expenditure of some part of his dues. I think these many steps and stages reflect as well upon whether there is an identification of dues payor and expenditure so intimate as to amount to a compelled affirmation. Surely if this Court in Street can only with great difficulty—if at all—identify the contributions of particular union members with the union's political expenditures, we should pause before assuming that particular Bar members can sensibly hear their own voices when the State Bar speaks as an organization. Mr. Justice Cardozo, writing for himself, Mr. Justice Brandeis, and Mr. Justice Stone in Hamilton v. Regents, 293 U. S. 245, 265, thought that the remoteness of the connection between a conscientious objection to war and the study of military science was in itself sufficient to make untenable a claim that requiring this study in state universities amounted to a state establishment of religion. These Justices thought the case even clearer when all that was involved was a contribution of money: Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war . . . or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. Hamilton v. Regents, 293 U. S. 245, 268. Nor do I now believe that a state taxpayer could object on Fourteenth Amendment grounds to the use of his money for school textbooks or instruction which he finds intellectually repulsive, nor for the mere purchase of a flag for the school. In the present case appellant is simply required to pay dues into the general funds of the State Bar. I do not think a subsequent decision by the representatives of the majority of the bar members to devote some part of the organization's funds to the furtherance of a legislative proposal so identifies the individual payor of dues with the belief expressed that we are in the Barnette realm of asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one. . . . 319 U. S., at 634. It seems to me evident that the actual core of appellant's complaint as to compelled affirmation is not the identification with causes to which he objects that might arise from some conceivable tracing of the use of his dues in their support, but is his forced association with the Integrated Bar. That, however, is a bridge which, beyond all doubt and any protestations now made to the contrary, we crossed in the Hanson case. I can see no way to uncross it without overruling Hanson. Certainly it cannot be done by declaring as a rule of law that lawyers feel more strongly about the identification of their names with proposals for law reform than union members feel about the identification of their names with collective bargaining demands declared on the radio, in picket signs, and on handbills.",compelled affirmation of belief.
+166,106268,1,1,"Petitioner contends that the indictment fails to state an offense against the United States. The claim is that § 4 (f) of the Internal Security Act of 1950, 64 Stat. 987, 50 U. S. C. § 781 et seq., constitutes a pro tanto repeal of the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Section 4 (f) provides: Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute. To prevail in his contention petitioner must, of course, bring himself within the first sentence of this provision, since the second sentence manifestly refers only to exclusion from evidence of the fact of registration, thus assuming that a prosecution may take place. We turn first to the provision itself, and find that, as to petitioner's construction of it, the language is at best ambiguous if not suggestive of a contrary conclusion. Section 4 (f) provides that membership or office-holding in a Communist organization shall not constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. Petitioner would most plainly be correct if the statute under which he was indicted purported to proscribe membership in Communist organizations, as such, and to punish membership per se in an organization engaging in proscribed advocacy. But the membership clause of the Smith Act on its face, much less as we construe it in this case, does not do this, for it neither proscribes membership in Communist organizations, as such, but only in organizations engaging in advocacy of violent overthrow, nor punishes membership in that kind of organization except as to one knowing the purposes thereof, and, as we have interpreted the clause, with a specific intent to further those purposes ( infra, pp. 219-222). We have also held that the proscribed membership must be active, and not nominal, passive or theoretical ( infra, pp. 222-224). Thus the words of the first sentence of § 4 (f) by no means unequivocally demand the result for which petitioner argues. When we turn from those words to their context, both in the section as a whole and in the scheme of the Act of which they are a part, whatever ambiguity there may be must be resolved, in our view, against the petitioner's contention. In the context of § 4 as a whole, the first sentence of subsection (f) does not appear to be a provision repealing in whole or in part any other provision of the Internal Security Act. Subsection (a) of § 4 makes it a crime for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship. . . the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization or foreign individual . . . . Subsection (c) makes it a crime for any officer or member of a Communist organization to obtain classified information. We should hesitate long before holding that subsection (f) operates to repeal pro tanto either one of these provisions which are found in the same section of which subsection (f) is a part; and indeed the petitioner does not argue for any such quixotic result. The natural tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere membership in a Communist organization. As to these particularly mentioned criminal provisions immunity, such as there is, is specifically granted in the second sentence only, where it is said that the fact of registration shall not be admitted in evidence. Yet petitioner argues that when we come to the last phrase of the first sentence, the tag or . . . any other criminal statute, the operative part of the sentence, membership . . . shall [not] constitute per se a violation, has an altogether different purport and effect. What operated as a clarification and guide to construction to the specifically identified provisions is, petitioner argues, a partial repealer as to the statutes referred to in the omnibus clause at the end of the sentence. It seems apparent from the foregoing that the language of § 4 (f) in its natural import and context should not be taken to immunize members of Communist organizations from the membership clause of the Smith Act, but rather as a mandate to the courts charged with the construction of subsections (a) and (c) or . . . any other criminal statute that neither those two named criminal provisions nor any other shall be construed so as to make membership in a Communist organization per se a violation. Indeed, as we read the first sentence of § 4 (f), even if the membership clause of the Smith Act could be taken as punishing naked Communist Party membership, it would then be our duty under § 4 (f) to construe it in accordance with that mandate, certainly not to strike it down. Although we think that the membership clause on its face goes beyond making mere Party membership a violation, in that it requires a showing both of illegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence of § 4 (f) as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends. ( Infra, pp. 219-224.) By its terms, then, subsection (f) does not effect a pro tanto repeal of the membership clause; at most it modifies it. Petitioner argues that if the § 4 (f) provision does not bar this prosecution under the membership clause, then the phrase or of any other criminal statute becomes meaningless, for there is no other federal criminal statute that makes this sort of membership a crime. But the argument assumes the answer. The first sentence was intended to clarify, not repeal, § 4 (a) of the Internal Security Act. By a parity of reasoning, its effect on any other criminal statute is also clarification, not repeal. Petitioner's contentions do not stop, however, with the words of § 4 (f) itself. The supposed partial repeal of the membership clause by that provision, it is claimed, is a consequence of the latter's purpose in the whole scheme of the Internal Security Act of 1950, as illuminated by its legislative history. The argument runs as follows: The core of the Internal Security Act is its registration provisions (§§ 7 and 8), requiring disclosure of membership in the Communist Party following a valid final determination of the Subversive Activities Control Board as to the status of the Party. See No. 12, ante, p. 1. The registration requirement would be rendered nugatory by a plea of self-incrimination and could only be saved by a valid grant of immunity from prosecution by reason of any such disclosure. However, the immunity provided by the second sentence of § 4 (f) is insufficient, in that it forbids only the use of the fact of . . . registration as evidence in any future prosecution, and not also its employment as a lead to other evidence. See Counselman v. Hitchcock, 142 U. S. 547; Blau v. United States, 340 U. S. 332. Therefore to effectuate the congressional purpose it becomes necessary to consider the first sentence of § 4 (f) a pro tanto repealer of the membership clause of the Smith Act, thereby assuring effective immunity from the criminal consequences of registration in this instance. Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute. Certainly the section before us cannot be construed as petitioner argues. The fact of registration may provide a significant investigatory lead not only in prosecutions under the membership clause of the Smith Act, but equally probably to prosecutions under § 4 (a) of the Internal Security Act, let alone § 4 (c). Thus, if we accepted petitioner's argument that § 4 (f) must be read as a partial repealer of the membership clause, we would be led to the extraordinary conclusion that Congress also intended to immunize under § 4 (f) what it prohibited in these other subsections which it passed at the same time. Furthermore, the thrust of petitioner's argument cannot be limited to the membership clause, for it is equally applicable to any prosecution under any of a host of criminal provisions where Communist Party membership might provide an investigatory lead as to the elements of the crime. [3] We cannot attribute any such sweeping purpose to Congress on the basis of the attenuated inference offered by petitioner. Presented as we are with every indication in the statute itself that Congress had no purpose to bar a prosecution such as this, we turn to the legislative history of the Internal Security Act of 1950 to see if a different conclusion is indicated. Section 4 (f) is the product of the fusion of provisions contained in measures conceived by the House and the Senate to deal with the problem which is the subject of the present Internal Security Act. Primarily, however, § 4 is the result of the Senate's efforts. In 1949 Senator Mundt reintroduced in the Senate a bill, the Mundt-Nixon bill, which had died in committee the year before. S. 2311, 81st Cong., 1st Sess. The bill, which was referred to the Committee on the Judiciary, contained registration provisions similar to those in the present statute, and a § 4 (a), a criminal provision identical to that of the present § 4 (a). In response to an enquiry, the Committee received a letter from an eminent lawyer, the late John W. Davis of New York, to the effect that although the primary purpose of the bill appears to be ventilation rather than prohibition, there was a question whether  mere membership in a Communist political organization, which is . . . required to register [might] constitute an act such as section 4 (a) proscribes? If so, the letter continued, is there not inherent contradiction between these sections, and might not a person called on to register as a member claim that he would involuntarily incriminate himself by so doing? (Emphasis supplied.) S. Rep. No. 1358, 81st Cong., 1st Sess., pp. 43-44. Thus, the Davis letter seemed to address itself only to self-incrimination under the proscriptions of § 4 (a), and only to the extent that the membership disclosed by registration would without more constitute a violation of § 4 (a). In response to this narrow objection the Committee drafted the predecessor of the present § 4 (f). That section, also numbered § 4 (f), provided that: Neither the holding of office nor membership in any Communist organization by any person shall constitute a violation of subsection (a) . . . of this section. The fact of the registration of any person . . . shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) . . . . S. 2311, as amended. The Committee in reporting the bill out to the Senate made it abundantly clear that whatever objections might be made could, in its view, be overcome by the clarification of § 4 (a) contained in § 4 (f), to wit: that  mere membership in an organization required to register is not an overt act such as to bring a person within the prohibitions of section 4. This amendment was inserted to make clear the intent of Congress that registration . . . was not evidence of a violation of section 4 of the bill. [4] (Emphasis supplied.) S. Rep. No. 1358, supra, p. 2. To the drafters of the original version of the section, then, the perforce limited immunity of the second sentence of § 4 (f) together with the clarification of the meaning of § 4 (a) in the first sentence was adequate to deal with the self-incrimination problem under § 4 (a), raised by the Davis letter. There is no mention of the Smith Act or any other criminal statute as yet, but the problem of the necessary scope of immunity is no different in relation to § 4 (a) than it would be to such other statutes. The subsequent history of the section in the Senate reinforces the conclusion that there was no intent to grant a broad immunity such as would meet the reasoning of Counselman v. Hitchcock . The Mundt-Nixon bill was incorporated in the body of an omnibus measure, the McCarran bill. S. 4037, 81st Cong., 2d Sess. When this bill was reported out to the Senate no further mention was made in the majority report of the Judiciary Committee of the sections under consideration. However, Senator Kilgore's minority report squarely presented two questions as to the insufficiency of the immunity provisions of § 4 (f): (1) that the immunity was inadequate to meet the Counselman rule, and (2) that in any case there was no immunity of any sort granted in respect of the Smith Act. S. Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12-13. These grounds were urged against the bill also in debate by its opponents. Senator Humphrey read into the Record a brief prepared by the Justice Department which in effect restated the objections of the minority report. 96 Cong. Rec. 14475, at 14479. Senator Lehman stated the same objections, and also suggested that the membership clause of the Smith Act as well as § 4 (a) made Communist membership per se a crime. This latter contention was vigorously denied by the proponents of the measure. [5] Thus, the Senate passed its predecessor version of § 4 (f), even though it had had clearly presented to it constitutional objections to that provision which are the same as the objections petitioner now makes to a natural and literal reading of the present statute. There was no immunity of any kind against Smith Act prosecutions, and only limited immunity against prosecutions under the comparable provisions of § 4 (a). The history of the original House measure is likewise relevant to the issue under consideration. That measure, the Wood bill, which also provided for registration, contained no provision similar to § 4 (a), but did have a provision similar to the present § 4 (c), forbidding members of Communist organizations from obtaining classified information. H. R. 9490, 81st Cong., 2d Sess. The bill included an immunity provision in the same subsection as the predecessor to present § 4 (c), which declared that: . . . the fact of the registration of any person . . . shall not be received in evidence against such person in any prosecution for any alleged violation . . . of this section. Once again, the Wood bill demonstrates the same narrow view of the self-incrimination problem as was evidenced by the Senate bill. In debate Congressmen Celler and Marcantonio, opposing the bill, pointed to the twofold inadequacy of the immunity provision: its failure to meet Counselman, and its not reaching other criminal statutes. 96 Cong. Rec. 13739-13740. The House responded to these objections by adding the words or for any alleged violation of any other . . . criminal statute at the end of the above-quoted provision. 96 Cong. Rec. 13761. It is, therefore, even clearer than in the case of the Senate's action that there was no attempt to grant complete immunity or to repeal any other statute at least as to prosecution of Communist Party members, since the House's immunity provision in terms only dealt with the admission into evidence of the fact of registration, having no provision comparable to the first sentence of present § 4 (f). That there was no such provision may perhaps be explained by the fact that there was no equivalent to § 4 (a) in need of clarification. In conference, the substance of the Senate bill was accepted by the conferees, including the criminal provision of the present § 4 (a). The Senate version of § 4 (f) was amended to its present form by the addition of the House or any other criminal statute language to both the first and second sentences of the subsection, and by the addition of per se to the first sentence. Thus we are asked by petitioner to hold that although neither House in its preconference bills evidenced any purpose to repeal the Smith Act insofar as Communist Party membership was concerned, let alone other possibly applicable statutes under which registration as a Party member might produce an investigatory lead (see note 3, supra ), the amalgamation of these two bills was intended, though without any notification by the conferees to either House in their conference reports, to have this result. Nor does the addition of the words per se advance petitioner's argument. On its face the addition would seem simply to make more explicit the clarifying purpose of the sentence. In its context of worries that § 4 (a) or the Smith Act makes Communist membership per se criminal, and of statements by the proponents of the bills that this was an unfounded fear as to both provisions, the purely clarifying purpose of per se is apparent. Furthermore, we are asked to attribute this purpose to the conferees, although neither they nor the proponents of the measure as it finally emerged from conference said a word about such an important departure from the original purposes of the two Houses. [6] Finally, it is worth noting that after the conference measure returned to the floor of the Senate it was attacked by Senator Kefauver on precisely the same grounds as had been urged against it in both Houses prior to conference: that the immunity conferred by the present § 4 (f) was too narrowly drawn to save the registration provisions against an attack under Counselman. 96 Cong. Rec. 15198-15199. This same attack was renewed after the President's veto, which was overridden by Congress. [7] 96 Cong. Rec. 15553-15554. The legislative history of § 4 (f), therefore, far from weakening the conclusion flowing from analysis of the terms of the statute itself, fortifies that analysis at every point. To conclude that Congress' desire to protect the registration provisions of the Internal Security Act against pleas of self-incrimination should prevail over its advertent failure to assure that result at the expense of wiping out the membership clause of the Smith Act, as applied to Communists, would require a disregard by this Court of the evident congressional purpose. Whatever may be the consequences of that failure upon the Internal Security Act, we are concerned here solely with the question whether Congress by § 4 (f) intended a partial repeal of the membership clause of the Smith Act. We conclude that it did not and hold that this prosecution is not barred by § 4 (f) of the Internal Security Act of 1950.",statutory challenge.
+167,106268,1,2,"Petitioner's constitutional attack goes both to the statute on its face and as applied. At this point we deal with the first aspect of the challenge and with one part of its second aspect. The balance of the latter, which essentially concerns the sufficiency of the evidence, is discussed in the next section of this opinion. It will bring the constitutional issues into clearer focus to notice first the premises on which the case was submitted to the jury. The jury was instructed that in order to convict it must find that within the three-year limitations period [8] (1) the Communist Party advocated the violent overthrow of the Government, in the sense of present advocacy of action to accomplish that end as soon as circumstances were propitious; and (2) petitioner was an active member of the Party, and not merely a nominal, passive, inactive or purely technical member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow as speedily as circumstances would permit. The constitutional attack upon the membership clause, as thus construed, is that the statute offends (1) the Fifth Amendment, [9] in that it impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct; and (2) the First Amendment, [10] in that it infringes on free political expression and association. Subsidiarily, it is argued that the statute cannot be interpreted as including a requirement of a specific intent to accomplish violent overthrow, or as requiring that membership in a proscribed organization must be active membership, in the absence of both or either of which it is said the statute becomes a fortiori unconstitutional. [11] It is further contended that even if the adjective active may properly be implied as a qualification upon the term member, petitioner's conviction would nonetheless be unconstitutional, because so construed the statute would be impermissibly vague under the Fifth and Sixth Amendments, [12] and so applied would in any event infringe the Sixth Amendment, in that the indictment charged only that Scales was a member, not an active member, of the Communist Party.
+Before reaching petitioner's constitutional claims, we should first ascertain whether the membership clause permissibly bears the construction put upon it below. We think it does. The trial court's definition of the kind of organizational advocacy that is proscribed was fully in accord with what was held in Yates v. United States, 354 U. S. 298. [13] And the statute itself requires that a defendant must have knowledge of the organization's illegal advocacy. The only two elements of the crime, as defined below, about which there is controversy are therefore specific intent and active membership. As to the former, this Court held in Dennis v. United States, 341 U. S. 494, 499-500, that even though the advocacy and organizing provisions of the Smith Act, unlike the literature section (note 1, supra ), did not expressly contain such a specific intent element, such a requirement was fairly to be implied. We think that the reasoning of Dennis applies equally to the membership clause, and are left unpersuaded by the distinctions petitioner seeks to draw between this clause and the advocacy and organizing provisions of the Smith Act. We find hardly greater difficulty in interpreting the membership clause to reach only active members. We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by knowledge and intent, not merely because of the close constitutional questions that such a purpose would raise (cf. infra, p. 228; Yates, supra, at 319), but also for two other reasons: It is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. [14] Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an even-handed application of the statute. This Court in passing on a similar provision requiring the deportation of aliens who have become members of the Communist Party—a provision which rested on Congress' far more plenary power over aliens, and hence did not press nearly so closely on the limits of constitutionality as this enactment—had no difficulty in interpreting membership there as meaning more than the mere voluntary listing of a person's name on Party rolls. Galvan v. Press, 347 U. S. 522; Rowoldt v. Perfetto, 355 U. S. 115; see Bridges v. Wixon, 326 U. S. 135. A similar construction is called for here. [15] Petitioner's particular constitutional objections to this construction are misconceived. The indictment was not defective in failing to charge that Scales was an active member of the Party, for that factor was not in itself a discrete element of the crime, but an inherent quality of the membership element. As such it was a matter not for the indictment, but for elucidating instructions to the jury on what the term member in the statute meant. Nor do we think that the objection on the score of vagueness is a tenable one. The distinction between active and nominal membership is well understood in common parlance (cf. Boyce Motor Lines v. United States, 342 U. S. 337; United States v. Petrillo, 332 U. S. 1; Sproles v. Binford, 286 U. S. 374), and the point at which one shades into the other is something that goes not to the sufficiency of the statute, but to the adequacy of the trial court's guidance to the jury by way of instructions in a particular case. See note 29, infra. Moreover, whatever abstract doubts might exist on the matter, this case presents no such problem. For petitioner's actions on behalf of the Communist Party most certainly amounted to active membership by whatever standards one could reasonably anticipate, and he can therefore hardly be considered to have acted unadvisedly on this score. We find no substance in the further suggestion that petitioner could not be expected to anticipate a construction of the statute that included within its elements activity and specific intent, and hence that he was not duly warned of what the statute made criminal. It is, of course, clear that the lower courts' construction was narrower, not broader, than the one for which petitioner argues in defining the character of the forbidden conduct and that therefore, according to petitioner's own construction, his actions were forbidden by the statute. The contention must then be that petitioner had a right to rely on the statute's, as he construed it, being held unconstitutional. Assuming, arguendo, that petitioner's construction was not unreasonable, no more can be said than that—in light of the courts' traditional avoidance of constructions of dubious constitutionality and in light of their role in construing the purpose of a statute—there were two ways one could reasonably anticipate this statute's being construed, and that petitioner had clear warning that his actions were in violation of both constructions. There is no additional constitutional requirement that petitioner should be entitled to rely upon the statute's being construed in such a way as possibly to render it unconstitutional. In sum, this argument of a right to a literal construction simply boils down to a claim that the view of the statute taken below did violence to the congressional purpose. Of course a litigant is always prejudiced when a court errs, but whether or not the lower courts erred in their construction is an issue which can only be met on its merits, and not by reference to a right to a particular interpretation. We hold that the statute was correctly interpreted by the two lower courts, and now turn to petitioner's basic constitutional challenge.
+In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a relationship. [16] This claim stands, and we shall examine it, independently of the claim made under the First Amendment. Any thought that due process puts beyond the reach of the criminal law all individual associational relationships, unless accompanied by the commission of specific acts of criminality, is dispelled by familiar concepts of the law of conspiracy and complicity. While both are commonplace in the landscape of the criminal law, they are not natural features. Rather they are particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior. [17] The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability. In this instance it is an organization which engages in criminal activity, [18] and we can perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act. Nor should the fact that Congress has focussed here on membership, the characteristic relationship between an individual and the type of conspiratorial quasi-political associations with the criminal aspect of whose activities Congress was concerned, of itself require the conclusion that the legislature has traveled outside the familiar and permissible bounds of criminal imputability. In truth, the specificity of the proscribed relationship is not necessarily a vice; it provides instruction and warning. [19] What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that act alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever. In an area of the criminal law which this Court has indicated more than once demands its watchful scrutiny (see Dennis, supra, at 516; Yates, supra, at 328; and see also Noto v. United States , decided today, post, p. 290), these factors have weight [20] and must be found to be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is found to reach only active members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action. Thus, given the construction of the membership clause already discussed, we think the factors called for in rendering members criminally responsible for the illegal advocacy of the organization fall within established, and therefore presumably constitutional, standards of criminal imputability.
+Little remains to be said concerning the claim that the statute infringes First Amendment freedoms. It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment. If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. It is, of course, true that quasi-political parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its criminal purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as First Amendment liberties are concerned. If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with the substantive evils that Congress has a right to prevent. Schenck v. United States, 249 U. S. 47, 52. The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant specifically intend[s] to accomplish [the aims of the organization] by resort to violence. Noto v. United States , post, at p. 299. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute: he lacks the requisite specific intent to bring about the overthrow of the government as speedily as circumstances would permit. Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal. We conclude that petitioner's constitutional challenge must be overruled. [21]",constitutional challenge to the membership clause on its face.
+168,106268,2,1,"Before reaching petitioner's constitutional claims, we should first ascertain whether the membership clause permissibly bears the construction put upon it below. We think it does. The trial court's definition of the kind of organizational advocacy that is proscribed was fully in accord with what was held in Yates v. United States, 354 U. S. 298. [13] And the statute itself requires that a defendant must have knowledge of the organization's illegal advocacy. The only two elements of the crime, as defined below, about which there is controversy are therefore specific intent and active membership. As to the former, this Court held in Dennis v. United States, 341 U. S. 494, 499-500, that even though the advocacy and organizing provisions of the Smith Act, unlike the literature section (note 1, supra ), did not expressly contain such a specific intent element, such a requirement was fairly to be implied. We think that the reasoning of Dennis applies equally to the membership clause, and are left unpersuaded by the distinctions petitioner seeks to draw between this clause and the advocacy and organizing provisions of the Smith Act. We find hardly greater difficulty in interpreting the membership clause to reach only active members. We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by knowledge and intent, not merely because of the close constitutional questions that such a purpose would raise (cf. infra, p. 228; Yates, supra, at 319), but also for two other reasons: It is not to be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act. [14] Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an even-handed application of the statute. This Court in passing on a similar provision requiring the deportation of aliens who have become members of the Communist Party—a provision which rested on Congress' far more plenary power over aliens, and hence did not press nearly so closely on the limits of constitutionality as this enactment—had no difficulty in interpreting membership there as meaning more than the mere voluntary listing of a person's name on Party rolls. Galvan v. Press, 347 U. S. 522; Rowoldt v. Perfetto, 355 U. S. 115; see Bridges v. Wixon, 326 U. S. 135. A similar construction is called for here. [15] Petitioner's particular constitutional objections to this construction are misconceived. The indictment was not defective in failing to charge that Scales was an active member of the Party, for that factor was not in itself a discrete element of the crime, but an inherent quality of the membership element. As such it was a matter not for the indictment, but for elucidating instructions to the jury on what the term member in the statute meant. Nor do we think that the objection on the score of vagueness is a tenable one. The distinction between active and nominal membership is well understood in common parlance (cf. Boyce Motor Lines v. United States, 342 U. S. 337; United States v. Petrillo, 332 U. S. 1; Sproles v. Binford, 286 U. S. 374), and the point at which one shades into the other is something that goes not to the sufficiency of the statute, but to the adequacy of the trial court's guidance to the jury by way of instructions in a particular case. See note 29, infra. Moreover, whatever abstract doubts might exist on the matter, this case presents no such problem. For petitioner's actions on behalf of the Communist Party most certainly amounted to active membership by whatever standards one could reasonably anticipate, and he can therefore hardly be considered to have acted unadvisedly on this score. We find no substance in the further suggestion that petitioner could not be expected to anticipate a construction of the statute that included within its elements activity and specific intent, and hence that he was not duly warned of what the statute made criminal. It is, of course, clear that the lower courts' construction was narrower, not broader, than the one for which petitioner argues in defining the character of the forbidden conduct and that therefore, according to petitioner's own construction, his actions were forbidden by the statute. The contention must then be that petitioner had a right to rely on the statute's, as he construed it, being held unconstitutional. Assuming, arguendo, that petitioner's construction was not unreasonable, no more can be said than that—in light of the courts' traditional avoidance of constructions of dubious constitutionality and in light of their role in construing the purpose of a statute—there were two ways one could reasonably anticipate this statute's being construed, and that petitioner had clear warning that his actions were in violation of both constructions. There is no additional constitutional requirement that petitioner should be entitled to rely upon the statute's being construed in such a way as possibly to render it unconstitutional. In sum, this argument of a right to a literal construction simply boils down to a claim that the view of the statute taken below did violence to the congressional purpose. Of course a litigant is always prejudiced when a court errs, but whether or not the lower courts erred in their construction is an issue which can only be met on its merits, and not by reference to a right to a particular interpretation. We hold that the statute was correctly interpreted by the two lower courts, and now turn to petitioner's basic constitutional challenge.",Statutory Construction.
+169,106268,2,2,"In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a relationship. [16] This claim stands, and we shall examine it, independently of the claim made under the First Amendment. Any thought that due process puts beyond the reach of the criminal law all individual associational relationships, unless accompanied by the commission of specific acts of criminality, is dispelled by familiar concepts of the law of conspiracy and complicity. While both are commonplace in the landscape of the criminal law, they are not natural features. Rather they are particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior. [17] The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability. In this instance it is an organization which engages in criminal activity, [18] and we can perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act. Nor should the fact that Congress has focussed here on membership, the characteristic relationship between an individual and the type of conspiratorial quasi-political associations with the criminal aspect of whose activities Congress was concerned, of itself require the conclusion that the legislature has traveled outside the familiar and permissible bounds of criminal imputability. In truth, the specificity of the proscribed relationship is not necessarily a vice; it provides instruction and warning. [19] What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that act alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever. In an area of the criminal law which this Court has indicated more than once demands its watchful scrutiny (see Dennis, supra, at 516; Yates, supra, at 328; and see also Noto v. United States , decided today, post, p. 290), these factors have weight [20] and must be found to be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is found to reach only active members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action. Thus, given the construction of the membership clause already discussed, we think the factors called for in rendering members criminally responsible for the illegal advocacy of the organization fall within established, and therefore presumably constitutional, standards of criminal imputability.",Fifth Amendment.
+170,106268,1,3,"Only in rare instances will this Court review the general sufficiency of the evidence to support a criminal conviction, for ordinarily that is a function which properly belongs to and ends with the Court of Appeals. We do so in this case and in No. 9, Noto v. United States , post, p. 290—our first review of convictions under the membership clause of the Smith Act—not only to make sure that substantive constitutional standards have not been thwarted, but also to provide guidance for the future to the lower courts in an area which borders so closely upon constitutionally protected rights. On this phase of the case petitioner's principal contention is that the evidence was insufficient to establish that the Communist Party was engaged in present advocacy of violent overthrow of the Government in the sense required by the Smith Act, that is, in advocacy of action for the accomplishment of such overthrow either immediately or as soon as circumstances proved propitious, and uttered in terms reasonably calculated to incite to such action. See Yates v. United States, supra, 318-322. This contention rests largely on the proposition that the evidence on this aspect of the case does not differ materially from that which the Court in Yates stated was inadequate to establish that sort of Party advocacy there. In Yates the Government sought to use the Communist Party, or at least the California branch of the Party, as the conspiratorial nexus between various individuals charged, among other things, with a conspiracy to engage in illegal advocacy. Upon reversal here for error in the trial court's charge on the nature of the advocacy proscribed by the Smith Act, this Court, in the exercise of its powers under 28 U. S. C. § 2106, [22] went on to consider the adequacy of the evidence for the purpose of determining as to which defendants an acquittal should be ordered, and as to which ones the way for a new trial should be left open. In the process it was stated that the Government's Party-conspiratorial-nexus theory was unavailing because the evidence fell short of establishing that the Party's advocacy constituted a call to forcible action for the accomplishment of immediate or future overthrow, in contrast to the teaching of mere abstract doctrine favoring that end. 354 U. S., at 329. At the same time, however, it was found that the record reflected certain episodes which, it was considered, might permissibly lend themselves to an inference of illegal advocacy by particular Party members (see id., at 331-333). It was concluded, however, that these and similar episodes were too sporadic and remote ( id., 330) to justify their attribution to the Party, possibly casting its abstract teaching of the Communist classics in a different mold. Accordingly, the Court directed an acquittal of those defendants who had not themselves been connected with such episodes. We agree with petitioner that the evidentiary question here is controlled in large part by Yates. The decision in Yates rested on the view (not articulated in the opinion, though perhaps it should have been) that the Smith Act offenses, involving as they do subtler elements than are present in most other crimes, call for strict standards in assessing the adequacy of the proof needed to make out a case of illegal advocacy. This premise is as applicable to prosecutions under the membership clause of the Smith Act as it is to conspiracy prosecutions under that statute as we had in Yates. The impact of Yates with respect to this petitioner's evidentiary challenge is not limited, however, to that decision's requirement of strict standards of proof. Yates also articulates general criteria for the evaluation of evidence in determining whether this requirement is met. The Yates opinion, through its characterizations of large portions of the evidence which were either described in detail or referred to by reference to the record, indicates what type of evidence is needed to permit a jury to find that (a) there was advocacy of action and (b) the Party was responsible for such advocacy. First, Yates makes clear what type of evidence is not in itself sufficient to show illegal advocacy. This category includes evidence of the following: the teaching of Marxism-Leninism and the connected use of Marxist classics as textbooks; the official general resolutions and pronouncements of the Party at past conventions; dissemination of the Party's general literature, including the standard outlines on Marxism; the Party's history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with the U. S. S. R. It was the predominance of evidence of this type which led the Court to order the acquittal of several Yates defendants, with the comment that they had not themselves made a single remark or been present when someone else made a remark which would tend to prove the charges against them. However, this kind of evidence, while insufficient in itself to sustain a conviction, is not irrelevant. Such evidence, in the context of other evidence, may be of value in showing illegal advocacy. Second, the Yates opinion also indicates what kind of evidence is sufficient. There the Court pointed to two series of events which justified the denial of directed acquittals as to nine of the Yates defendants. The Court noted that with respect to seven of the defendants, meetings in San Francisco which were described by the witness Foard might be considered to be the systematic teaching and advocacy of illegal action which is condemned by the statute. 354 U. S., at 331. In those meetings, a small group of members were not only taught that violent revolution was inevitable, but they were also taught techniques for achieving that end. For example, the Yates record reveals that members were directed to be prepared to convert a general strike into a revolution and to deal with Negroes so as to prepare them specifically for revolution. In addition to the San Francsico meetings, the Court referred to certain activities in the Los Angeles area which might be considered to amount to `advocacy of action'  and with which two Yates defendants were linked. Id., 331-332. Here again, the participants did not stop with teaching of the inevitability of eventual revolution, but went on to explain techniques, both legal and illegal, to be employed in preparation for or in connection with the revolution. Thus, one member was surreptitiously indoctrinated in methods . . . of moving `masses of people in time of crisis' ; others were told to adopt such Russian prerevolutionary techniques as the development of a special communication system through a newspaper similar to Pravda. Id., 332. Viewed together, these events described in Yates indicate at least two patterns of evidence sufficient to show illegal advocacy: (a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for the revolution is reached; and (b) the teaching of forceful overthrow, accompanied by a contemporary, though legal, course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated. Compare Noto v. United States , post, at 297-299. Finally, Yates is also relevant here in indicating, at least by implication, the type and quantum of evidence necessary to attach liability for illegal advocacy to the Party. In discussing the Government's conspiratorial-nexus theory the Court found that the evidence there was insufficient because the incidents of illegal advocacy were infrequent, sporadic, and not fairly related to the period covered by the indictment. In addition, the Court indicated that the illegal advocacy was not sufficiently tied to officials who spoke for the Party as such. Thus, in short, Yates imposes a strict standard of proof, and indicates the kind of evidence that is insufficient to show illegal advocacy under that standard, the kind of evidence that is sufficient, and what pattern of evidence is necessary to hold the Party responsible for such advocacy. With these criteria in mind, we now proceed to an examination of the evidence in this case. We begin with what was also present in Yates, the general evidence as to the doctrines, organization, and tactical procedures of the Communist Party, exposited by Lautner, the Government's foundational witness both here and in Yates. Together with documentary evidence, Lautner's testimony, based on high-level participation in Party affairs from 1929 to 1950, furnished the necessary background in Party theory and terminology which is crucial to the proper appreciation of the tenor of Party pronouncements, for these pronouncements, taken out of this larger context, might appear harmless and peaceable without in reality being so. The distinction that was drawn in Yates between theoretical advocacy and advocacy of violence as a rule of action is of course basic, but when the teaching is carried out in a special vocabulary, knowledge of that vocabulary is at least relevant to an understanding of the quality and tenor of the teaching. Lautner's testimony, having covered the pre-war history of the Party, passed to the 1945 reconstitution of the organization. Prior to that time the Party, as the Communist Political Association, had adhered to the position that the change to a Communist society could be achieved through peaceful, democratic means. The reconstitution, which was finally approved at a National Convention in July of 1945, involved a return to the principles of Marxism-Leninism. As found in the so-called Communist classics, the adoption of a program of industrial concentration, the increased effort among Negroes, especially in the South, the complete repudiation of the former Party leader, Browder, and his doctrine of revisionism, all signified, so Lautner testified, that the United States was henceforth to be regarded as no exception to the teachings of Lenin that communism could only be achieved in an industrialized nation such as this by resort to violent revolution, and that a belief in peaceful means was foolishness or treachery. Lautner testified that the industrial concentration program, as well as the emphasis on the Negro minority, was an articulation of this doctrine, in that it involved a concentration on those elements in society which the Party believed could do most damage, in time of crisis, to the existing social fabric in relation to their numbers, and that victory at the polls was not its concern. Lautner testified that it was further resolved at the 1945 National Convention that in order to implement the principles of the reconstitution, a program of thorough re-education of the whole Party membership should be undertaken, and Lautner himself was charged with the duty of carrying out this re-education as a District Organizer and State Chairman. The balance of Lautner's testimony was devoted to a detailed description of the elaborate underground apparatus which he and others were charged with setting up in the various portions of the country assigned to them. Mrs. Hartle testified as to her activities in the Party, primarily in the Pacific Northwest area, from 1934 to approximately 1952. Mrs. Hartle confirmed, in many respects, Lautner's testimony as to Party teaching and doctrine throughout this period. After the 1945 reconstitution she was sent to the National Training School in New York, where thirty officers and functionaries from various parts of the country were re-educated in accordance with the decisions and resolutions of the 1945 Convention. She was taught about dialectical materialism, and the theory of struggle between the capitalist class and the working class. They were taught and reference was made to a quotation . . . that it is the duty of a revolutionary not to try to gloss over this class struggle or to try to compromise it, but to unravel it, to allow this class struggle and help this class struggle to unfold, the clash to proceed. The class was told that it is the duty of a Marxist-Leninist to be a revolutionary and not a reformist. They were further instructed that the United States . . . was objectively at the stage for Proletarian revolution, that the time for the proletariat revolution would come when the objective conditions of political or economic crisis coincided with the subjective condition of a Communist Party which was large enough, with enough influence among the working classes, to give the necessary leadership to lead to the seizure of power. Much of the testimony summarized so far may indeed be considered to relate to the mere theory of revolution, abstract advocacy. However, the teaching at the National Training School also descended to a lower level of generality. Mrs. Hartle was told that the role of the Communist Party was preparing the workers and the people to be ready to be able to take power, to know how to take power when a revolutionary situation arose. At that time, the plan and program of the Party would be to lead the working class to seize power and to smash the Bourgeois state machine. With respect to this latter task, the class was told: . . . the Bourgeois state machine is not smashed after the seizure of power, but in the course of seizing power that the armies, the police, the prisons have to be dealt with and smashed up and rendered inoperative in the course of the seizure of power, that other matters, that some other matters in replacing the, a state, such as the, some of the administrative apparatus and some other matters would take a longer period of time, but the forcible elements of the capitalist state must be smashed in the course of taking power, but some other things like reorganizing the banking system, or some matters like that, could be done in a somewhat longer process. In pressing toward the fulfillment of the subjective conditions necessary for such action, Mrs. Hartle was taught that the struggles and activities of the Communist Party prepare the working class for this act of seizure of power, and the history of the Russian Communist Party and Revolution was taught in the school and the events and principles of this history were constantly related to contemporary conditions in the United States. Thus, for example, the class was told that the coalition of workers and peasants which had proved so successful in Russia should have its counterpart in America in a coalition of workers and Negroes, especially in the South. Following her classes at the National Training School, Mrs. Hartle returned to Washington, where she helped to recruit and organize in underground fashion the employees of the Boeing Aircraft Plant in that State. At the same time, Mrs. Hartle was active in Party schools in her area. She testified that she had both been instructed and had herself taught: . . . the means by which the ultimate goal might be attained was that those means would be forcible. The teaching was that any teaching, any theory of a peaceful road to socialism, or a growing over from capitalism to socialism was a betrayal of the working class and that the Communist Party leading the working class would have to arm it in the first place with the theory that the workers must know and must be prepared to know that they can only take power forcibly. ..... The action that Communist Party members should take in preparing for the ultimate goal that I was taught and that I taught, were to build the Communist Party as the vanguard party of the working class, a theoretically equipped party, equipped with the theory of Marxism-Leninism, a highly organized party that could act as a unit, as a monolithic whole, with democratic centralism, the principle guiding it . . . and that the Communist Party should be the connection between the vanguard and the working class millions in this preparation by working with and winning the confidence of the working class and allies of the working class, such as, the Negro people, the poor farmers, other national groups, and in this way, in the course of struggle, constant struggle taking the forms of strikes and demonstrations and picket lines and marches and various kinds of activities to train the working class and the people for revolutionary battle. The witness Duran, who attended a Party School in Los Angeles in 1951, described what he had been taught by one Moreau, a member of the National Education Commission of the Communist Party: He divided in his explanation the . . . Proletariat. . . as being divided into two groups. Those in industry that would lead the revolution, and those in agriculture that would follow, and speaking about the revolution. Professor Moreau stated to the class in a very emotional manner that he could see himself carrying a gun against the capitalist S. O. B.'s and explained to the class it was all based on the science of Marx and Lenin. ..... In discussing the Proletarian Revolution more thoroughly Professor Moreau explained throughout the school that the Proletarian Revolution would only come about if a Bolshevik rank and file, the sincere Communists, would get out and teach, and teach the people, the desirability of changing the system and the necessity of changing them, and in doing that, we had to teach the people that you cannot change the capitalist system to a Socialist system, to socialism successfully, the peaceful way; it had to be erupted from, and had to be taken away by force and violence, away from them and the entire state machinery of the Bourgeoisie smashed, the F. B. I., the courts and the Army and the Navy, whatever was on it, what—the entire instrumentality of the Bourgeoisie had to be smashed and substituted by the Proletarian machinery. . . . and during the period of the revolution the transition, the violent transition, we had to make mass work to get the masses away from the Bourgeoisie so they would not join a counterrevolution movement. It meant after the people of the Communist Party, the vanguard, had become satisfied, that the Bourgeoisie machinery was smashed, and they were in control, then they also had to collect guns from the people and control the people themselves. Q. Do I understand, Mr. Moreau [ sic ] that during this period of revolution the people, that is, the masses of the people, would be carrying guns? A. Yes, sir. Q. And after the revolution do I understand that the Party would go around and collect these guns and take them away from the people? A. Yes, sir; take them away from those that helped them overthrow the capitalist system in order to assure the revolution itself. . . . Immediately after the overthrow of the capitalist system and establishment of the dictatorship of the Proletariat, it became necessary for a Communist to establish Red Army in this country, not only to secure and maintain the dictatorship of the Proletariat, but control the people as well, and those people that did help overthrow the Government would not have any civil rights whatsoever, no voting rights, or anything; they would be dished out to them according to the way they felt, way they fell in with the Communist office by the dictatorship. Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you in this school about the role that would be played by the Communist Party during this period of revolution when the Government would be overthrown by force and violence? A. The role of the Communist Party, and specifically within the Communist Party, the Bolsheviks was to play a vanguard role, a leading role; that is explained scientifically in that so that first we teach the people the desirability of overthrowing them and teach them the, it could only be done through the Proletarian Revolution, and then when the time is ripe we could stampede them against the capitalist class. Duran also testified to what he had been taught by Art Berry, District Organizer for seven States, in a Colorado school in 1952: . . . we were discussing the scientific application of Marx and Lenin to the transition period between capitalism and socialism, and he demonstrated this with the kettle of water, that you could put a quantitative amount of water in a kettle and set it somewhere, nothing would happen, just like the masses, nothing does happen. . . . [he] said, however, if you get that same amount, same kettle with the same amount of water in it, and put fire underneath it, then you begin to get quantitative changes, and eventually it reaches a nodule point to where it has a qualitative and abrupt transition into steam. He continued, same applied to the development of the revolution in this sense, the American people will not and cannot make a successful change over from capitalism to socialism by themselves, like the fire underneath the water, the Communist Party teaches and leads them to where when the society reaches that nodule point, the Communist people teaches the people before and then leads them to make that abrupt change into the society of socialism. ..... Substantially, within the same explanation of violent overthrow of the Government . . . he stated that not only would it be that, but that we would have to set up barricades, establish a central point from where we would participate from; he stated the `we' literally speaking `we', would have to have a central point because during the revolution it may become necessary to ebb, retreat in certain battles, and we would have to learn to retreat in an organizational way and a correct way. It was essential to learn to ebb as it was to flow on the revolution. In the ebbing we were to see that we ebb before the enemy wiped everybody out. Ebbing to the central point that had been barricaded, reorganization, and then at the correct time start flowing forward in the revolution. The witness Obadiah Jones testified concerning a Party Training School in St. Louis which he attended in 1947. Jones was taught that the only way the national problem could be solved would be in connection with the Proletariat Revolution. Jones was also instructed as to the nature of a Communist army: A. He said general staff of an army was different from the Communist Party . . . general staff of an army operated from a safe spot from behind the line and led the army from a far distance, and that the Communist Party went forth and fought with the workers. Q. Did he say anything with reference to the techniques? A. Yes, he said that you couldn't be a good leader without knowing all of the techniques of fighting. Q. Did he say anything with respect to carrying out instructions? A. Yes, sir. Q. What did he say in that connection? A. He said that capitalists in the army did not carry out the instructions in full, but the Communists did, regardless of what the cost would be, they would carry out instructions completely. At the final session, the students were required by the instructor to take a pledge: The pledge was each of us are Communists or members of the Party and each of us have a responsibility and we must carry out our responsibility and work for the interests of the Party and its recipients and carry out the full will of the Party even though it meant to fight and to kill, we must carry out the demands of the Party and all of them. The witnesses Clontz, Childs, and Reavis testified primarily as to their dealings with petitioner Scales. We regard this testimony, which finds no counterpart in the Yates record with respect to any of the defendants whose acquittal was directed, as being of special importance in two ways: it supplies some of the strongest and most unequivocal evidence against the Party based on the statements and activities of a man whose words and deeds, by virtue of his high Party position, carry special weight in determining the character of the Party from the standpoint of the Smith Act; and it appears clearly dispositive as to the quality of petitioner's Party membership, and his knowledge and intent, when we come to consider him not as a Party official but as the defendant in this case. [23] In 1948 Ralph C. Clontz, Jr., then a student at Duke Law School, undertook to furnish the F. B. I. with information he had gained about Communist Party activities in North Carolina, and to volunteer his services in attempting to penetrate the Party to acquire further information. As a result, in September of that year, Clontz sent a postcard to petitioner, informing him that he was a law student and that he was interested in communism. Petitioner replied by sending Clontz a large cardboard box filled with Communist literature. An accompanying letter, headed Carolina District Communist Party U. S. A. with the notation Junius Scales, Chairman, explained: Under separate cover I have already sent you a rather varied sample of our literature. I hope you will give it close attention. If I can discuss any matter relating to my Party and its program with you in person, I will be glad to do so. Several days later Clontz went to visit petitioner and thus began a relationship which was to bring him into intimate contact with the Communist Party, its teachings, purpose and activities. At an early meeting between the two, petitioner told Clontz that it was impossible for the Communist Party to succeed to power through educating the people in this country and gaining their votes at the polls, but that a forceful revolution would be necessary. At a later meeting, the discussion was not limited to the theoretical inevitability of revolution, but went beyond the theory itself to an explanation of basic strategy which the Communist Party was using to give concrete foundation to the theory, i. e., to bringing about the revolution: The defendant [petitioner] explained that basically their strategy was bottomed on a concept that there were two classes of people in this country, that could be used by the Communist Party to foment a revolution. The first class he termed the working class or Proletariat, working class, he said, had as its natural born leaders or vanguard, the Communist Party. The second class, he described, in this country was what he termed the Negro nation. The Negro nation he described as a separate nation in what he termed the Black Belt, including thirteen Southern States, and the strategy of the Communist Party was to bring the working class, led by the Communist Party, and what he termed the Negro nation, together, to bring about a forceful overthrow of the Government. Now Scales and the Communist Party taught that the basic strategy of the Communist Party would never change, but that tactics might be altered as the situation changed. On petitioner's invitation, Clontz joined the Communist Party on January 17, 1950. He was not assigned to a particular group but became a member at large, in order to continue his instruction under petitioner. In the course of this instruction, petitioner repeatedly told Clontz of the necessity for revolution to bring about the Dictatorship of the Proletariat. Scales analogized the situation in the United States to that in Russia prior to the 1917 Revolution. He pointed out that revolution would be easier in this country than it had been in Russia: that while in the Soviet Union there had been no one to help the Soviet Party, that in this country when the revolution started, we would have the benefit of the help from the mother country, Russia, in bringing about our own revolution, because part of the purposes of the Communist Party in the Soviet Union was international in scope and that we naturally would continue to receive help in all circumstances from the Soviet Party when the revolution was started here in this country. Petitioner explained that the Soviet Union could not be expected to land troops to start a revolution here. A similar procedure had been unsuccessful in China. Rather, he said that we Communists in this country would have to start the revolution, and we would have to continue fighting it, but that the Soviet Union would aid the Communist Party in this endeavor by furnishing it with experienced revolutionaries from Russia. [24] He added that if the United States declared war on the Communists in their revolution, then the Soviet Union would land troops, and he said that would be a bloody time for all. When asked by Clontz when all this would occur, Scales noted that a depression would greatly accelerate the coming of the revolution if the Communists used it properly to prepare the masses of the people. Petitioner arranged for Clontz to be awarded a scholarship to study in New York at the Jefferson School of Social Science, an official Communist Party School, during the month of August 1950. Because Clontz arrived at a time when few scheduled courses were being offered, the bulk of his training at the school was received in private instruction from Doxey A. Wilkerson, the teacher with whom petitioner had communicated in arranging Clontz' scholarship. [25] Wilkerson, like petitioner, told Clontz, that the Communist Party recognized and expressed to themselves that the only kind of means would be proper means, which would be forceful means, that no longer was there any even pretense among intelligent Communists that any voting system or any people's election could bring this government. He also stated, as Scales had, that the revolution basically would come about by combining the forces of what had been already identified as the Negro nation and the working class as the vanguard. In line with this strategy, Wilkerson advised Clontz that he should not let his membership in the Communist Party become known, that by remaining under cover he would be much more helpful to the Party when the revolution came. As part of his undercover activity, Clontz was directed to attempt to infiltrate various organizations of the working class in order to achieve a background of respectability and to be able to lead such organizations toward the goal of the Communist Party, . . . the undermining of the Government and overthrowing the Government, bringing communism in the United States. But Clontz was not to lose contact with the Party, for if he got isolated without Party direction . . . [his] efforts would be pretty largely wasted. In connection with these instructions, Wilkerson mentioned one of the things that frightened the United States leaders was they knew that not only did they have to contend with China and the other Communist-dominated countries, but that also in every capitalist country the working class party, the Communists, would be working from within. When Clontz returned to North Carolina, he reported to petitioner on his activities at the Jefferson School. He also informed petitioner, under instructions from the F. B. I., that he wished to move to New York. Petitioner arranged for Clontz to remain under his direction and to pay dues to him, while in New York, rather than effecting a formal transfer. Clontz moved to New York in March of 1951. While there Scales directed him to get in with the A. C. L. U. organization to report on what value they might have in the coming struggle . . . . Clontz had also been advised by an associate of petitioner to infiltrate. . . the Civilian Defense setup. The witnesses Childs and Reavis also testified to their relationship with Scales, who among other things arranged for their attendance at Party schools where their instruction followed much the same pattern as that described by Clontz. [26] In 1952 Childs attended a Party Training School of which petitioner was a director. The school was given for outstanding cadres in the North and South Carolina and Virginia Districts of the Communist Party. It was held on a farm and strict security measures were taken. The District Organizer of Virginia instructed at the school. He told the students that the role of the Communist Party is to lead the working masses to the overthrow of the capitalist government. With respect to the preliminary task of gaining the broad coalition necessary to achieve this task, he stated that, . . . the Communist Party has a program of industrial concentration in which they try to get people, that is, people who are Communist Party members, into key shops or key industries which the Party has determined or designated to be industrial concentration industries or plants. This is so that the Communist Party members in a particular plant will be able to have a cell, or a Communist Party group in which they will be able to more effectively plan for such things as attempting to control the union in that particular plant. And, in a compulsory recreation period, this same instructor gave a demonstration of jujitsu and, explaining that the students might be able to use this on a picket line, how to kill a person with a pencil. According to Childs' testimony, what he showed us to do was to take our pencil, . . . just take the pencil and place it simply in the palm of your hand so that the back will rest against the base of the thumb, and then we were to take it, and the person, and give a quick jab so that it would penetrate through here [demonstrating], and enter the heart, and then if we could not do that, we just take it and grab it at the base of the throat. Reavis attended the Party's New York Jefferson School in 1942. In a course on Negro History the students, drawn primarily from the South, were taught that . . . the Negro people was the only revolutionary group within the United States that we could align themselves [ sic ] with, and hope to reach their [ sic ] gains through the avenue of force and violence, by overthrow of the Government, by Proletariat faction . . . . Reavis was later advised to seek employment at the Western Electric Plant in Winston-Salem. He stated: I bumped into Mr. Scales at Harvey's home and I—the report said . . . the advice I'd been getting was confirmed by him. I advanced the question on what I should do in case I did get employment there at Western Electric, and I knew it was a, Government work, what I should do in case I was asked to sign certain papers, and I was told to do the same, that they had when signing a Taft-Hartley affidavit, to go ahead and sign them, that before they did, the defendant asked me if I had signed any papers that might be used as proof that I was in the Party, and I didn't remember any. We conclude that this evidence sufficed to make a case for the jury on the issue of illegal Party advocacy. Dennis and Yates have definitely laid at rest any doubt that present advocacy of future action for violent overthrow satisfies statutory and constitutional requirements equally with advocacy of immediate action to that end. 341 U. S., at 509; 354 U. S., at 321. Hence this record cannot be considered deficient because it contains no evidence of advocacy for immediate overthrow. Since the evidence amply showed that Party leaders were continuously preaching during the indictment period the inevitability of eventual forcible overthrow, the first and basic question is a narrow one: whether the jury could permissibly infer that such preaching, in whole or in part, was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time . . . the kind of indoctrination preparatory to action which was condemned in Dennis.  Yates, supra, at 321-322. On this score, we think that the jury, under instructions which fully satisfied the requirements of Yates, [27] was entitled to infer from this systematic preaching that where the explicitness and concreteness, of the sort described previously, seemed necessary and prudent, the doctrine of violent revolution—elsewhere more a theory of historical predictability than a rule of conduct—was put forward as a guide to future action, in whatever tone, be it emotional or calculating, that the audience and occasion required; in short, that advocacy of action was engaged in. The only other question on this phase of the case is whether such advocacy was sufficiently broadly based to permit its attribution to the Party. We think it was. The advocacy of action was not sporadic (cf. p. 226, supra ), the instances of it being neither infrequent, remote in time nor casual. [28] It cannot be said that the jury could not have found that the criminal advocacy was fully authorized and condoned by the Party. We regard the testimony of the witnesses, whose credibility, of course, is not for us, as indicating a sufficiently systematic and substantial course of utterances and conduct on the part of those high in the councils of the Party, including the petitioner himself, to entitle the jury to infer that such activities reflected tenets of the Party. The testimony described activities in various States, including the teaching at some seven schools, among them the national Party school. The witnesses told of advocacy by high Party officials, including that of leaders of the Party in nine States. Further, there was testimony that the Party followed the principle of democratic-centralism whereby a position once adopted by the Party must be unquestionably adhered to by the whole membership. The conformity of the views expressed and the terms employed in advocating violent overthrow in such States as Washington, North Carolina, Missouri, Colorado and Virginia could reasonably be taken by the jury as a practical manifestation of democratic-centralism. Another concrete illustration of this principle could have been found in the circumstance that in almost every instance where a speaker engaged in advocacy of violent overthrow, he not only advocated violence to his audience but urged others to go out and do likewise. All of these factors combine to justify the inference that the illegal individual advocacy as to which testimony was adduced was in truth the expression of Party policy and purpose. The requirement of Party imputability is adequately met in the record. (See note 18, supra. ) The sufficiency of the evidence as to other elements of the crime requires no exposition. Scales' active membership in the Party is indisputable, and that issue was properly submitted to the jury under instructions that were entirely adequate. [29] The elements of petitioner's knowledge and specific intent ( ante, p. 220) require no further discussion of the evidence beyond that already given as to Scales' utterances and activities. Compare Noto v. United States , post, at 299-300. They bear little resemblance to the fragmentary and equivocal utterances and conduct which were found insufficient in Nowak v. United States, 356 U. S. 660, 666-667, and in Maisenberg v. United States, 356 U. S. 670, 673. We hold that this prosecution does not fail for insufficiency of the proof.",evidentiary challenge.
+171,106268,1,4,"Petitioner contends that a number of errors were committed, having the effect of vitiating the fairness of his trial. For reasons substantially similar to those given by the Court of Appeals (260 F. 2d 38-46), we find that none of petitioner's contentions raise points meriting reversal.
+Petitioner complains as to the admission of certain evidence relating to the Party's general or specific purposes. In particular, he objects to the admission of evidence about the Party's program in the so-called Black Belt and especially to the admission of a pamphlet called I Saw the Truth in Korea, which contained a very gruesome description of alleged American atrocities in Korea. There can be no doubt that this matter, and particularly the latter, would not have reflected well on the petitioner or the Party in the eyes of the jury, but if it was relevant to an element of the crime, then whether its asserted prejudicial effect so far outweighed its probative value as to require exclusion of the evidence, was a decision which rested in the sound discretion of the trial judge. Particularly in light of the fact that the most damaging of this material emanated from petitioner himself (260 F. 2d, at 38), we cannot say that its admission involved an abuse of discretion which would warrant our reversal of the conclusions of the trial judge and the Court of Appeals on this score. We therefore need only consider whether the complained-of evidence was legally relevant and therefore admissible. As we have pointed out in our review of the record, the jury could have inferred that part of the Communist Party's program for violent revolution was the winning of favor with the Negro population in the South, which it thought was particularly susceptible to revolutionary propaganda and action. Surely, then, the evidence of the Party's teaching that the Negro population should be given the right to form a separate nation is not irrelevant to the issue of whether or not the Party's program as a whole constituted a call to stand in readiness for violent action, when this particular plank in the platform was intended as bait for one of the substantial battalions in the hoped-for revolutionary array. Of course, the preaching that the Negro population in the South has the right to form a separate nation does not of itself constitute illegal advocacy. But neither does the teaching of the abstract theory of Marxism-Leninism, which we have held cannot alone form the basis for a conviction for violation of the Smith Act, Yates v. United States, supra ; yet it cannot be seriously urged that evidence of such teaching is legally irrelevant to the charge. Similarly the evidence of the pamphlet on alleged American atrocities in Korea cannot be said to be irrelevant to the issue of illegal advocacy by the Party. Once again, the pamphlet may not in itself constitute such an incitement to violence as would justify a finding that the Party advocated violent overthrow, but it is possible to infer from it that it was the purpose of the Party to undermine the Government in the eyes of the people in time of war as a preparatory measure, albeit legal in itself, to the teaching and sympathetic reception of illegal advocacy to violent revolution. Petitioner also argues that this and other evidence was not connected up with him or his activities. Whether it was or not, since it is necessary under the membership clause to prove the advocacy of the Party as an independent element of the offense, this renders admissible evidence not connected up with the defendant in the accepted conspiracy sense. (See note 23, supra. ) Doubtless because of this there is a special need to make sure that the evidence establishing a defendant's personal knowledge of illegal Party advocacy and his intent in becoming or remaining a Party member to accomplish violent overthrow is cogent and adequately brought home to him. But, having said that, we have said all, in respect to petitioner's claim on this point.
+When this case was first before us we reversed the conviction, 355 U. S. 1, on the authority of our decision in Jencks v. United States, 353 U. S. 657. Before the second trial Congress enacted the so-called Jencks statute, 18 U. S. C. § 3500. Petitioner, as we understand him, does not now argue that that statute was incorrectly applied in his case; rather he attacks, on constitutional grounds, the statute itself. That the procedure set forth in the statute does not violate the Constitution and that the procedure required by the decision of this Court in Jencks was not required by the Constitution was assumed by us in Palermo v. United States, 360 U. S. 343. It is enough to say here that there can be no complaint by a criminal defendant that he has been denied the opportunity to examine statements by government witnesses which do not relate to the subject matter of their testimony, for such statements bear no greater relevance to that testimony which he seeks to impeach than would statements by persons unconnected with the prosecution. Whether the statements so relate to prosecution testimony is a decision which is vested not in the Government but in the trial judge with full opportunity for appellate review. Once this question has been determined, whether the statements may be useful for purposes of impeachment is a decision which rests, of course, with the defendant himself. Petitioner also objects to the limitation of the Act to written statements signed or adopted by the witness or to any form of substantially verbatim transcription of an oral statement by the witness. However, petitioner does not assert that he has been prejudiced by this provision, or that any statement or document requested by him was withheld on the authority of the statute. In these circumstances we perceive no basis for this aspect of petitioner's claims. 3. Congressional Findings in the Communist Control Act of 1954 and the Internal Security Act of 1950. Petitioner asserts that the congressional findings as to the character of the Communist Party contained in both statutes deprived him of a fair trial on the issue of the character of the Party. That legislative action may have the effect of precluding a fair trial is not impossible, see Delaney v. United States, 199 F. 2d 107, but petitioner's claim here appears to be no more than an afterthought. There is no showing of any prejudice, nor that during the voir dire examination of jurors petitioner attempted to ascertain whether any juror had even heard of these enactments, much less that petitioner attempted to have any juror disqualified on that ground. We cannot on this record regard this as a substantial contention. Finally, for the reasons stated by the Court of Appeals, 260 F. 2d, at 44-46, we think that petitioner waived any right he might have had to question the method of choosing grand jurors by his failure to comply with Rule 12, Fed. Rules Crim. Proc., and further that no impropriety in the method of choosing grand jurors has been shown. The judgment of the Court of Appeals must be Affirmed.",alleged trial errors.
+172,106268,2,1,"Petitioner complains as to the admission of certain evidence relating to the Party's general or specific purposes. In particular, he objects to the admission of evidence about the Party's program in the so-called Black Belt and especially to the admission of a pamphlet called I Saw the Truth in Korea, which contained a very gruesome description of alleged American atrocities in Korea. There can be no doubt that this matter, and particularly the latter, would not have reflected well on the petitioner or the Party in the eyes of the jury, but if it was relevant to an element of the crime, then whether its asserted prejudicial effect so far outweighed its probative value as to require exclusion of the evidence, was a decision which rested in the sound discretion of the trial judge. Particularly in light of the fact that the most damaging of this material emanated from petitioner himself (260 F. 2d, at 38), we cannot say that its admission involved an abuse of discretion which would warrant our reversal of the conclusions of the trial judge and the Court of Appeals on this score. We therefore need only consider whether the complained-of evidence was legally relevant and therefore admissible. As we have pointed out in our review of the record, the jury could have inferred that part of the Communist Party's program for violent revolution was the winning of favor with the Negro population in the South, which it thought was particularly susceptible to revolutionary propaganda and action. Surely, then, the evidence of the Party's teaching that the Negro population should be given the right to form a separate nation is not irrelevant to the issue of whether or not the Party's program as a whole constituted a call to stand in readiness for violent action, when this particular plank in the platform was intended as bait for one of the substantial battalions in the hoped-for revolutionary array. Of course, the preaching that the Negro population in the South has the right to form a separate nation does not of itself constitute illegal advocacy. But neither does the teaching of the abstract theory of Marxism-Leninism, which we have held cannot alone form the basis for a conviction for violation of the Smith Act, Yates v. United States, supra ; yet it cannot be seriously urged that evidence of such teaching is legally irrelevant to the charge. Similarly the evidence of the pamphlet on alleged American atrocities in Korea cannot be said to be irrelevant to the issue of illegal advocacy by the Party. Once again, the pamphlet may not in itself constitute such an incitement to violence as would justify a finding that the Party advocated violent overthrow, but it is possible to infer from it that it was the purpose of the Party to undermine the Government in the eyes of the people in time of war as a preparatory measure, albeit legal in itself, to the teaching and sympathetic reception of illegal advocacy to violent revolution. Petitioner also argues that this and other evidence was not connected up with him or his activities. Whether it was or not, since it is necessary under the membership clause to prove the advocacy of the Party as an independent element of the offense, this renders admissible evidence not connected up with the defendant in the accepted conspiracy sense. (See note 23, supra. ) Doubtless because of this there is a special need to make sure that the evidence establishing a defendant's personal knowledge of illegal Party advocacy and his intent in becoming or remaining a Party member to accomplish violent overthrow is cogent and adequately brought home to him. But, having said that, we have said all, in respect to petitioner's claim on this point.",Admission of Remote or Prejudicial Evidence.
+173,106268,2,2,"When this case was first before us we reversed the conviction, 355 U. S. 1, on the authority of our decision in Jencks v. United States, 353 U. S. 657. Before the second trial Congress enacted the so-called Jencks statute, 18 U. S. C. § 3500. Petitioner, as we understand him, does not now argue that that statute was incorrectly applied in his case; rather he attacks, on constitutional grounds, the statute itself. That the procedure set forth in the statute does not violate the Constitution and that the procedure required by the decision of this Court in Jencks was not required by the Constitution was assumed by us in Palermo v. United States, 360 U. S. 343. It is enough to say here that there can be no complaint by a criminal defendant that he has been denied the opportunity to examine statements by government witnesses which do not relate to the subject matter of their testimony, for such statements bear no greater relevance to that testimony which he seeks to impeach than would statements by persons unconnected with the prosecution. Whether the statements so relate to prosecution testimony is a decision which is vested not in the Government but in the trial judge with full opportunity for appellate review. Once this question has been determined, whether the statements may be useful for purposes of impeachment is a decision which rests, of course, with the defendant himself. Petitioner also objects to the limitation of the Act to written statements signed or adopted by the witness or to any form of substantially verbatim transcription of an oral statement by the witness. However, petitioner does not assert that he has been prejudiced by this provision, or that any statement or document requested by him was withheld on the authority of the statute. In these circumstances we perceive no basis for this aspect of petitioner's claims. 3. Congressional Findings in the Communist Control Act of 1954 and the Internal Security Act of 1950. Petitioner asserts that the congressional findings as to the character of the Communist Party contained in both statutes deprived him of a fair trial on the issue of the character of the Party. That legislative action may have the effect of precluding a fair trial is not impossible, see Delaney v. United States, 199 F. 2d 107, but petitioner's claim here appears to be no more than an afterthought. There is no showing of any prejudice, nor that during the voir dire examination of jurors petitioner attempted to ascertain whether any juror had even heard of these enactments, much less that petitioner attempted to have any juror disqualified on that ground. We cannot on this record regard this as a substantial contention. Finally, for the reasons stated by the Court of Appeals, 260 F. 2d, at 44-46, we think that petitioner waived any right he might have had to question the method of choosing grand jurors by his failure to comply with Rule 12, Fed. Rules Crim. Proc., and further that no impropriety in the method of choosing grand jurors has been shown. The judgment of the Court of Appeals must be Affirmed.",The Jencks Claim.
+174,1741,2,1,"Let us start from the beginning. The Court invokes ancient First Amendment principles, ante, at 886 (internal quotation marks omitted), and original understandings, ante, at 906-907, to defend today's ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment. Perhaps this is because there is not a scintilla of evidence to support the notion that anyone believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers' views are discernible and relevant to the disposition of this case, they would appear to cut strongly against the majority's position. This is not only because the Framers and their contemporaries conceived of speech more narrowly than we now think of it, see Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 22 (1971), but also because they held very different views about the nature of the First Amendment right and the role of corporations in society. Those few corporations that existed at the founding were authorized by grant of a special legislative charter. [53] Corporate sponsors would petition the legislature, and the legislature, if amenable, would issue a charter that specified the corporation's powers and purposes and authoritatively fixed the scope and content of corporate organization, including the internal structure of the corporation. J. Hurst, The Legitimacy of the Business Corporation in the Law of the United States 1780-1970, pp. 15-16 (1970) (reprint 2004). Corporations were created, supervised, and conceptualized as quasi-public entities, designed to serve a social function for the state. Handlin & Handlin, Origin of the American Business Corporation, 5 J. Econ. Hist. 1, 22 (1945). It was assumed that [they] were legally privileged organizations that had to be closely scrutinized by the legislature because their purposes had to be made consistent with public welfare. R. Seavoy, Origins of the American Business Corporation, 1784-1855, p. 5 (1982). The individualized charter mode of incorporation reflected the cloud of disfavor under which corporations labored in the early years of this Nation. 1 W. Fletcher, Cyclopedia of the Law of Corporations § 2, p. 8 (rev. ed.2006); see also Louis K. Liggett Co. v. Lee, 288 U.S. 517, 548-549, 53 S.Ct. 481, 77 L.Ed. 929 (1933) (Brandeis, J., dissenting) (discussing fears of the evils of business corporations); L. Friedman, A History of American Law 194 (2d ed.1985) (The word `soulless' constantly recurs in debates over corporations.... Corporations, it was feared, could concentrate the worst urges of whole groups of men). Thomas Jefferson famously fretted that corporations would subvert the Republic. [54] General incorporation statutes, and widespread acceptance of business corporations as socially useful actors, did not emerge until the 1800's. See Hansmann & Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439, 440 (2001) (hereinafter Hansmann & Kraakman) ([A]ll general business corporation statutes appear to date from well after 1800). The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. [55] While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even the notion that business corporations could invoke the First Amendment would probably have been quite a novelty, given that at the time, the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign. Shelledy, Autonomy, Debate, and Corporate Speech, 18 Hastings Const. L.Q. 541, 578 (1991); cf. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L.Ed. 629 (1819) (Marshall, C.J.) (A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S.Ct. Rev. 105, 129 (The framers of the First Amendment could scarcely have anticipated its application to the corporation form. That, of course, ought not to be dispositive. What is compelling, however, is an understanding of who was supposed to be the beneficiary of the free speech guaranty—the individual). In light of these background practices and understandings, it seems to me implausible that the Framers believed the freedom of speech would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections. The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 906. From these (accurate) observations, the Court concludes that [t]he First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media. Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused on prior restraints on publication and did not understand the First Amendment to prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 714, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Yet, even if the majority's conclusion were correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent. As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy. As a matter of original meaning, it likewise seems baseless—unless one evaluates the First Amendment's principles, ante, at 886, 912, or its purpose, ante, at 919-920 (opinion of ROBERTS, C.J.), at such a high level of generality that the historical understandings of the Amendment cease to be a meaningful constraint on the judicial task. This case sheds a revelatory light on the assumption of some that an impartial judge's application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy. Justice SCALIA criticizes the foregoing discussion for failing to adduce statements from the founding era showing that corporations were understood to be excluded from the First Amendment's free speech guarantee. Ante, at 925-926, 929. Of course, Justice SCALIA adduces no statements to suggest the contrary proposition, or even to suggest that the contrary proposition better reflects the kind of right that the drafters and ratifiers of the Free Speech Clause thought they were enshrining. Although Justice SCALIA makes a perfectly sensible argument that an individual's right to speak entails a right to speak with others for a common cause, cf. MCFL, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539, he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no common cause. Ante, at 928. Nothing in his account dislodges my basic point that members of the founding generation held a cautious view of corporate power and a narrow view of corporate rights (not that they despised corporations, ante, at 925), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition—if not also the very notion of corporate speech— was inconceivable. [56] Justice SCALIA also emphasizes the unqualified nature of the First Amendment text. Ante, at 925, 928-929. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Ante, at 927. [57] Like virtually all modern lawyers, Justice SCALIA presumably believes that the First Amendment restricts the Executive, even though its language refers to Congress alone. In any event, the text only leads us back to the questions who or what is guaranteed the freedom of speech, and, just as critically, what that freedom consists of and under what circumstances it may be limited. Justice SCALIA appears to believe that because corporations are created and utilized by individuals, it follows (as night the day) that their electioneering must be equally protected by the First Amendment and equally immunized from expenditure limits. See ante, at 928-929. That conclusion certainly does not follow as a logical matter, and Justice SCALIA fails to explain why the original public meaning leads it to follow as a matter of interpretation. The truth is we cannot be certain how a law such as BCRA § 203 meshes with the original meaning of the First Amendment. [58] I have given several reasons why I believe the Constitution would have been understood then, and ought to be understood now, to permit reasonable restrictions on corporate electioneering, and I will give many more reasons in the pages to come. The Court enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings. In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers, see Randall v. Sorrell, 548 U.S. 230, 280, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (STEVENS, J., dissenting), whose political universe differed profoundly from that of today. We have long since held that corporations are covered by the First Amendment, and many legal scholars have long since rejected the concession theory of the corporation. But historical context is usually relevant, ibid. (internal quotation marks omitted), and in light of the Court's effort to cast itself as guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today's outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.",Original Understandings
+175,1741,2,2,"A century of more recent history puts to rest any notion that today's ruling is faithful to our First Amendment tradition. At the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act, ch. 420, 34 Stat. 864, banning all corporate contributions to candidates. The Senate Report on the legislation observed that [t]he evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials. S.Rep. No. 3056, 59th Cong., 1st Sess., 2 (1906). President Roosevelt, in his 1905 annual message to Congress, declared: `All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders' money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.' United States v. Automobile Workers, 352 U.S. 567, 572, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) (quoting 40 Cong. Rec. 96). The Court has surveyed the history leading up to the Tillman Act several times, see WRTL, 551 U.S., at 508-510, 127 S.Ct. 2652 (Souter, J., dissenting); McConnell, 540 U.S., at 115, 124 S.Ct. 619; Automobile Workers, 352 U.S., at 570-575, 77 S.Ct. 529, and I will refrain from doing so again. It is enough to say that the Act was primarily driven by two pressing concerns: first, the enormous power corporations had come to wield in federal elections, with the accompanying threat of both actual corruption and a public perception of corruption; and second, a respect for the interest of shareholders and members in preventing the use of their money to support candidates they opposed. See ibid.; United States v. CIO, 335 U.S. 106, 113, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); Winkler, Other People's Money: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo. L.J. 871 (2004). Over the years, the limitations on corporate political spending have been modified in a number of ways, as Congress responded to changes in the American economy and political practices that threatened to displace the commonweal. Justice Souter recently traced these developments at length. [59] WRTL, 551 U.S., at 507-519, 127 S.Ct. 2652 (dissenting opinion); see also McConnell, 540 U.S., at 115-133, 124 S.Ct. 619; McConnell, 251 F.Supp.2d, at 188-205. The Taft-Hartley Act of 1947 is of special significance for this case. In that Act passed more than 60 years ago, Congress extended the prohibition on corporate support of candidates to cover not only direct contributions, but independent expenditures as well. Labor Management Relations Act, 1947, § 304, 61 Stat. 159. The bar on contributions was being so narrowly construed that corporations were easily able to defeat the purposes of the Act by supporting candidates through other means. WRTL, 551 U.S., at 511, 127 S.Ct. 2652 (Souter, J., dissenting) (citing S.Rep. No. 1, 80th Cong., 1st Sess., 38-39 (1947)). Our colleagues emphasize that in two cases from the middle of the 20th century, several Justices wrote separately to criticize the expenditure restriction as applied to unions, even though the Court declined to pass on its constitutionality. Ante, at 900-901. Two features of these cases are of far greater relevance. First, those Justices were writing separately; which is to say, their position failed to command a majority. Prior to today, this was a fact we found significant in evaluating precedents. Second, each case in this line expressed support for the principle that corporate and union political speech financed with PAC funds, collected voluntarily from the organization's stockholders or members, receives greater protection than speech financed with general treasury funds. [60] This principle was carried forward when Congress enacted comprehensive campaign finance reform in the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, which retained the restriction on using general treasury funds for contributions and expenditures, 2 U.S.C. § 441b(a). FECA codified the option for corporations and unions to create PACs to finance contributions and expenditures forbidden to the corporation or union itself. § 441b(b). By the time Congress passed FECA in 1971, the bar on corporate contributions and expenditures had become such an accepted part of federal campaign finance regulation that when a large number of plaintiffs, including several nonprofit corporations, challenged virtually every aspect of the Act in Buckley, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, no one even bothered to argue that the bar as such was unconstitutional. Buckley famously (or infamously) distinguished direct contributions from independent expenditures, id., at 58-59, 96 S.Ct. 612, but its silence on corporations only reinforced the understanding that corporate expenditures could be treated differently from individual expenditures. Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. McConnell, 540 U.S., at 203, 124 S.Ct. 619. Thus, it was unremarkable, in a 1982 case holding that Congress could bar nonprofit corporations from soliciting nonmembers for PAC funds, that then-Justice Rehnquist wrote for a unanimous Court that Congress' careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations . . . warrants considerable deference, and reflects a permissible assessment of the dangers posed by those entities to the electoral process. NRWC, 459 U.S., at 209, 103 S.Ct. 552 (internal quotation marks and citation omitted). The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, the unanimous Court observed, and there is no reason why it may not . . . be accomplished by treating . . . corporations . . . differently from individuals. Id., at 210-211, 103 S.Ct. 552. The corporate/individual distinction was not questioned by the Court's disposition, in 1986, of a challenge to the expenditure restriction as applied to a distinctive type of nonprofit corporation. In MCFL, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539, we stated again that `the special characteristics of the corporate structure require particularly careful regulation,' id., at 256, 107 S.Ct. 616 (quoting NRWC, 459 U.S., at 209-210, 103 S.Ct. 552), and again we acknowledged that the Government has a legitimate interest in regulat[ing] the substantial aggregations of wealth amassed by the special advantages which go with the corporate form, 479 U.S., at 257, 107 S.Ct. 616 (internal quotation marks omitted). Those aggregations can distort the free trade in ideas crucial to candidate elections, ibid., at the expense of members or shareholders who may disagree with the object of the expenditures, id., at 260, 107 S.Ct. 616 (internal quotation marks omitted). What the Court held by a 5-to-4 vote was that a limited class of corporations must be allowed to use their general treasury funds for independent expenditures, because Congress' interests in protecting shareholders and restrict[ing] `the influence of political war chests funneled through the corporate form,' id., at 257, 107 S.Ct. 616 (quoting FEC v. National Conservative Political Action Comm., 470 U.S. 480, 501, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985) (NCPAC) ), did not apply to corporations that were structurally insulated from those concerns. [61] It is worth remembering for present purposes that the four MCFL dissenters, led by Chief Justice Rehnquist, thought the Court was carrying the First Amendment too far. They would have recognized congressional authority to bar general treasury electioneering expenditures even by this class of nonprofits; they acknowledged that the threat from corporate political activity will vary depending on the particular characteristics of a given corporation, but believed these distinctions among corporations were distinctions in degree, not in kind, and thus more properly drawn by the Legislature than by the Judiciary. 479 U.S., at 268, 107 S.Ct. 616 (opinion of Rehnquist, C.J.) (internal quotation marks omitted). Not a single Justice suggested that regulation of corporate political speech could be no more stringent than of speech by an individual. Four years later, in Austin, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652, we considered whether corporations falling outside the MCFL exception could be barred from using general treasury funds to make independent expenditures in support of, or in opposition to, candidates. We held they could be. Once again recognizing the importance of the integrity of the marketplace of political ideas in candidate elections, MCFL, 479 U.S., at 257, 107 S.Ct. 616, we noted that corporations have special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets, 494 U.S., at 658-659, 110 S.Ct. 1391—that allow them to spend prodigious general treasury sums on campaign messages that have little or no correlation with the beliefs held by actual persons, id., at 660, 110 S.Ct. 1391. In light of the corrupting effects such spending might have on the political process, ibid., we permitted the State of Michigan to limit corporate expenditures on candidate elections to corporations' PACs, which rely on voluntary contributions and thus reflect actual public support for the political ideals espoused by corporations, ibid. Notwithstanding our colleagues' insinuations that Austin deprived the public of general ideas, facts, and knowledge, ante, at 906-907, the decision addressed only candidate-focused expenditures and gave the State no license to regulate corporate spending on other matters. In the 20 years since Austin, we have reaffirmed its holding and rationale a number of times, see, e.g., Beaumont, 539 U.S., at 153-156, 123 S.Ct. 2200, most importantly in McConnell, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491, where we upheld the provision challenged here, § 203 of BCRA. [62] Congress crafted § 203 in response to a problem created by Buckley. The Buckley Court had construed FECA's definition of prohibited expenditures narrowly to avoid any problems of constitutional vagueness, holding it applicable only to communications that expressly advocate the election or defeat of a clearly identified candidate, 424 U.S., at 80, 96 S.Ct. 612, i.e., statements containing so-called magic words like `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' [or] `reject,' id., at 43-44, and n. 52, 96 S.Ct. 612. After Buckley, corporations and unions figured out how to circumvent the limits on express advocacy by using sham issue ads that eschewed the use of magic words but nonetheless advocate[d] the election or defeat of clearly identified federal candidates. McConnell, 540 U.S., at 126, 124 S.Ct. 619. Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads. Id., at 127, 124 S.Ct. 619. Congress passed § 203 to address this circumvention, prohibiting corporations and unions from using general treasury funds for electioneering communications that refe[r] to a clearly identified candidate, whether or not those communications use the magic words. 2 U.S.C. § 434(f)(3)(A)(i)(I). When we asked in McConnell whether a compelling governmental interest justifie[d] § 203, we found the question easily answered: We have repeatedly sustained legislation aimed at `the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas.' 540 U.S., at 205, 124 S.Ct. 619 (quoting Austin, 494 U.S., at 660, 110 S.Ct. 1391). These precedents represent respect for the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. 540 U.S., at 205, 124 S.Ct. 619 (internal quotation marks omitted). Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against `circumvention of [valid] contribution limits.' Ibid. (quoting Beaumont, 539 U.S., at 155, 123 S.Ct. 2200, in turn quoting FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 456, and n. 18, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (Colorado II); alteration in original). BCRA, we found, is faithful to the compelling governmental interests in `preserving the integrity of the electoral process, preventing corruption, . . . sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government,' and maintaining `the individual citizen's confidence in government.' 540 U.S., at 206-207, n. 88, 124 S.Ct. 619 (quoting Bellotti, 435 U.S., at 788-789, 98 S.Ct. 1407; some internal quotation marks and brackets omitted). What made the answer even easier than it might have been otherwise was the option to form PACs, which give corporations, at the least, a constitutionally sufficient opportunity to engage in independent expenditures. 540 U.S., at 203, 124 S.Ct. 619.",Legislative and Judicial Interpretation
+176,1741,2,3,"Against this extensive background of congressional regulation of corporate campaign spending, and our repeated affirmation of this regulation as constitutionally sound, the majority dismisses Austin as a significant departure from ancient First Amendment principles, ante, at 886 (internal quotation marks omitted). How does the majority attempt to justify this claim? Selected passages from two cases, Buckley, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, and Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707, do all of the work. In the Court's view, Buckley and Bellotti decisively rejected the possibility of distinguishing corporations from natural persons in the 1970's; it just so happens that in every single case in which the Court has reviewed campaign finance legislation in the decades since, the majority failed to grasp this truth. The Federal Congress and dozens of state legislatures, we now know, have been similarly deluded. The majority emphasizes Buckley 's statement that `[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.' Ante, at 904 (quoting 424 U.S., at 48-49, 96 S.Ct. 612); ante, at 921 (opinion of ROBERTS, C.J.). But this elegant phrase cannot bear the weight that our colleagues have placed on it. For one thing, the Constitution does, in fact, permit numerous restrictions on the speech of some in order to prevent a few from drowning out the many: for example, restrictions on ballot access and on legislators' floor time. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring). For another, the Buckley Court used this line in evaluating the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections. 424 U.S., at 48, 96 S.Ct. 612. It is not apparent why this is relevant to the case before us. The majority suggests that Austin rests on the foreign concept of speech equalization, ante, at 904-905; ante, at 921-922 (opinion of ROBERTS, C.J.), but we made it clear in Austin (as in several cases before and since) that a restriction on the way corporations spend their money is no mere exercise in disfavoring the voice of some elements of our society in preference to others. Indeed, we expressly ruled that the compelling interest supporting Michigan's statute was not one of `equaliz[ing] the relative influence of speakers on elections,' Austin, 494 U.S., at 660, 110 S.Ct. 1391 (quoting id., at 705, 110 S.Ct. 1391 (KENNEDY, J., dissenting)), but rather the need to confront the distinctive corrupting potential of corporate electoral advocacy financed by general treasury dollars, id., at 659-660, 110 S.Ct. 1391. For that matter, it should go without saying that when we made this statement in Buckley, we could not have been casting doubt on the restriction on corporate expenditures in candidate elections, which had not been challenged as foreign to the First Amendment, ante, at 904 (quoting Buckley, 424 U.S., at 49, 96 S.Ct. 612), or for any other reason. Buckley 's independent expenditure analysis was focused on a very different statutory provision, 18 U.S.C. § 608(e)(1) (1970 ed., Supp. V). It is implausible to think, as the majority suggests, ante, at 901-902, that Buckley covertly invalidated FECA's separate corporate and union campaign expenditure restriction, § 610 (now codified at 2 U.S.C. § 441b), even though that restriction had been on the books for decades before Buckley and would remain on the books, undisturbed, for decades after. The case on which the majority places even greater weight than Buckley, however, is Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707, claiming it could not have been clearer that Bellotti 's holding forbade distinctions between corporate and individual expenditures like the one at issue here, ante, at 902. The Court's reliance is odd. The only thing about Bellotti that could not be clearer is that it declined to adopt the majority's position. Bellotti ruled, in an explicit limitation on the scope of its holding, that our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. 435 U.S., at 788, n. 26, 98 S.Ct. 1407; see also id., at 787-788, 98 S.Ct. 1407 (acknowledging that the interests in preserving public confidence in Government and protecting dissenting shareholders may be weighty . . . in the context of partisan candidate elections). Bellotti, in other words, did not touch the question presented in Austin and McConnell, and the opinion squarely disavowed the proposition for which the majority cites it. The majority attempts to explain away the distinction Bellotti drew—between general corporate speech and campaign speech intended to promote or prevent the election of specific candidates for office— as inconsistent with the rest of the opinion and with Buckley. Ante, at 903, 909-910. Yet the basis for this distinction is perfectly coherent: The anticorruption interests that animate regulations of corporate participation in candidate elections, the importance of which has never been doubted, 435 U.S., at 788, n. 26, 98 S.Ct. 1407, do not apply equally to regulations of corporate participation in referenda. A referendum cannot owe a political debt to a corporation, seek to curry favor with a corporation, or fear the corporation's retaliation. Cf. Austin, 494 U.S., at 678, 110 S.Ct. 1391 (STEVENS, J., concurring); Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 299, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981). The majority likewise overlooks the fact that, over the past 30 years, our cases have repeatedly recognized the candidate/issue distinction. See, e.g., Austin, 494 U.S., at 659, 110 S.Ct. 1391; NCPAC, 470 U.S., at 495-496, 105 S.Ct. 1459; FCC v. League of Women Voters of Cal., 468 U.S. 364, 371, n. 9, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984); NRWC, 459 U.S., at 210, n. 7, 103 S.Ct. 552. The Court's critique of Bellotti 's footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with Buckley. Bellotti, apparently, is both the font of all wisdom and internally incoherent. The Bellotti Court confronted a dramatically different factual situation from the one that confronts us in this case: a state statute that barred business corporations' expenditures on some referenda but not others. Specifically, the statute barred a business corporation from making contributions or expenditures `for the purpose of. . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation,' 435 U.S., at 768, 98 S.Ct. 1407 (quoting Mass. Gen. Laws Ann., ch. 55, § 8 (West Supp.1977); alteration in original), and it went so far as to provide that referenda related to income taxation would not `be deemed materially to affect the property, business or assets of the corporation,' 435 U.S., at 768, 98 S.Ct. 1407. As might be guessed, the legislature had enacted this statute in order to limit corporate speech on a proposed state constitutional amendment to authorize a graduated income tax. The statute was a transparent attempt to prevent corporations from spending money to defeat this amendment, which was favored by a majority of legislators but had been repeatedly rejected by the voters. See id., at 769-770, and n. 3, 98 S.Ct. 1407. We said that where, as here, the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended. Id., at 785-786, 98 S.Ct. 1407 (footnote omitted). Bellotti thus involved a viewpoint-discriminatory statute, created to effect a particular policy outcome. Even Justice Rehnquist, in dissent, had to acknowledge that a very persuasive argument could be made that the [Massachusetts Legislature], desiring to impose a personal income tax but more than once defeated in that desire by the combination of the Commonwealth's referendum provision and corporate expenditures in opposition to such a tax, simply decided to muzzle corporations on this sort of issue so that it could succeed in its desire. Id., at 827, n. 6, 98 S.Ct. 1407. To make matters worse, the law at issue did not make any allowance for corporations to spend money through PACs. Id., at 768, n. 2, 98 S.Ct. 1407 (opinion of the Court). This really was a complete ban on a specific, preidentified subject. See MCFL, 479 U.S., at 259, n. 12, 107 S.Ct. 616 (stating that 2 U.S.C. § 441b's expenditure restriction is of course distinguishable from the complete foreclosure of any opportunity for political speech that we invalidated in the state referendum context in . . . Bellotti  (emphasis added)). The majority grasps a quotational straw from Bellotti, that speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation. Ante, at 902-903. Of course not, but no one suggests the contrary and neither Austin nor McConnell held otherwise. They held that even though the expenditures at issue were subject to First Amendment scrutiny, the restrictions on those expenditures were justified by a compelling state interest. See McConnell, 540 U.S., at 205, 124 S.Ct. 619; Austin, 494 U.S., at 658, 660, 110 S.Ct. 1391. We acknowledged in Bellotti that numerous interests of the highest importance can justify campaign finance regulation. 435 U.S., at 788-789, 98 S.Ct. 1407. But we found no evidence that these interests were served by the Massachusetts law. Id., at 789, 98 S.Ct. 1407. We left open the possibility that our decision might have been different if there had been record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests. Ibid. Austin and McConnell, then, sit perfectly well with Bellotti. Indeed, all six Members of the Austin majority had been on the Court at the time of Bellotti, and none so much as hinted in Austin that they saw any tension between the decisions. The difference between the cases is not that Austin and McConnell rejected First Amendment protection for corporations whereas Bellotti accepted it. The difference is that the statute at issue in Bellotti smacked of viewpoint discrimination, targeted one class of corporations, and provided no PAC option; and the State has a greater interest in regulating independent corporate expenditures on candidate elections than on referenda, because in a functioning democracy the public must have faith that its representatives owe their positions to the people, not to the corporations with the deepest pockets.",Buckley and Bellotti
+177,111736,2,2,"Appellees contend that the legislative decision to employ multimember, rather than single-member, districts in the contested jurisdictions dilutes their votes by submerging them in a white majority, [11] thus impairing their ability to elect representatives of their choice. [12] The essence of a ž 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. This Court has long recognized that multimember districts and at-large voting schemes may  `operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.'  [13] Burns v. Richardson, 384 U. S. 73, 88 (1966) (quoting Fortson v. Dorsey, 379 U. S. 433, 439 (1965)). See also Rogers v. Lodge, 458 U. S. 613, 617 (1982); White v. Regester, 412 U. S., at 765; Whitcomb v. Chavis, 403 U. S. 124, 143 (1971). The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters. [14] See, e. g., Grofman, Alternatives, in Representation and Redistricting Issues 113-114. Multimember districts and at-large election schemes, however, are not per se violative of minority voters' rights. S. Rep., at 16. Cf. Rogers v. Lodge, supra, at 617; Regester, supra, at 765; Whitcomb, supra, at 142. Minority voters who contend that the multimember form of districting violates ž 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. See, e. g., S. Rep., at 16. While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. [15] Stated succinctly, a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. Bonapfel 355; Blacksher & Menefee 34; Butler 903; Carpeneti 696-699; Davidson, Minority Vote Dilution: An Overview (hereinafter Davidson), in Minority Vote Dilution 4; Grofman, Alternatives 117. Cf. Bolden, 446 U. S., at 105, n. 3 (MARSHALL, J., dissenting) (It is obvious that the greater the degree to which the electoral minority is homogeneous and insular and the greater the degree that bloc voting occurs along majority-minority lines, the greater will be the extent to which the minority's voting power is diluted by multimember districting). These circumstances are necessary preconditions for multimember districts to operate to impair minority voters' ability to elect representatives of their choice for the following reasons. First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. [16] If it is not, as would be the case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates. [17] Cf. Rogers, 458 U. S., at 616. See also, Blacksher & Menefee 51-56, 58; Bonapfel 355; Carpeneti 696; Davidson 4; Jewell 130. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Blacksher & Menefee 51-55, 58-60, and n. 344; Carpeneti 696-697; Davidson 4. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ÔÇö in the absence of special circumstances, such as the minority candidate running unopposed, see, infra, at 57, and n. 26 ÔÇö usually to defeat the minority's preferred candidate. See, e. g., Blacksher & Menefee 51, 53, 56-57, 60. Cf. Rogers, supra, at 616-617; Whitcomb, 403 U. S., at 158-159; McMillan v. Escambia County, Fla., 748 F. 2d 1037, 1043 (CA5 1984). In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives. Finally, we observe that the usual predictability of the majority's success distinguishes structural dilution from the mere loss of an occasional election. Cf. Davis v. Bandemer, post, at 131-133, 139-140 (opinion of WHITE, J.); Bolden, supra, at 111, n. 7 (MARSHALL, J., dissenting); Whitcomb, supra, at 153. See also Blacksher & Menefee 57, n. 333; Note, Geometry and Geography: Racial Gerrymandering and the Voting Rights Act, 94 Yale L. J. 189, 200, n. 66 (1984) (hereinafter Note, Geometry and Geography).",vote dilution through the use of multimember districts
+178,111736,1,3,"Having stated the general legal principles relevant to claims that ž 2 has been violated through the use of multimember districts, we turn to the arguments of appellants and of the United States as amicus curiae addressing racially polarized voting. [18] First, we describe the District Court's treatment of racially polarized voting. Next, we consider appellants' claim that the District Court used an incorrect legal standard to determine whether racial bloc voting in the contested districts was sufficiently severe to be cognizable as an element of a ž 2 claim. Finally, we consider appellants' contention that the trial court employed an incorrect definition of racially polarized voting and thus erroneously relied on statistical evidence that was not probative of racial bloc voting.
+The investigation conducted by the District Court into the question of racial bloc voting credited some testimony of lay witnesses, but relied principally on statistical evidence presented by appellees' expert witnesses, in particular that offered by Dr. Bernard Grofman. Dr. Grofman collected and evaluated data from 53 General Assembly primary and general elections involving black candidacies. These elections were held over a period of three different election years in the six originally challenged multimember districts. [19] Dr. Grofman subjected the data to two complementary methods of analysis ÔÇö extreme case analysis and bivariate ecological regression analysis [20] ÔÇö in order to determine whether blacks and whites in these districts differed in their voting behavior. These analytic techniques yielded data concerning the voting patterns of the two races, including estimates of the percentages of members of each race who voted for black candidates. The court's initial consideration of these data took the form of a three-part inquiry: did the data reveal any correlation between the race of the voter and the selection of certain candidates; was the revealed correlation statistically significant; and was the difference in black and white voting patterns substantively significant? The District Court found that blacks and whites generally preferred different candidates and, on that basis, found voting in the districts to be racially correlated. [21] The court accepted Dr. Grofman's expert opinion that the correlation between the race of the voter and the voter's choice of certain candidates was statistically significant. [22] Finally, adopting Dr. Grofman's terminology, see Tr. 195, the court found that in all but 2 of the 53 elections [23] the degree of racial bloc voting was so marked as to be substantively significant, in the sense that the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters. 590 F. Supp., at 368. The court also reported its findings, both in tabulated numerical form and in written form, that a high percentage of black voters regularly supported black candidates and that most white voters were extremely reluctant to vote for black candidates. The court then considered the relevance to the existence of legally significant white bloc voting of the fact that black candidates have won some elections. It determined that in most instances, special circumstances, such as incumbency and lack of opposition, rather than a diminution in usually severe white bloc voting, accounted for these candidates' success. The court also suggested that black voters' reliance on bullet voting was a significant factor in their successful efforts to elect candidates of their choice. Based on all of the evidence before it, the trial court concluded that each of the districts experienced racially polarized voting in a persistent and severe degree. Id., at 367.
+North Carolina and the United States argue that the test used by the District Court to determine whether voting patterns in the disputed districts are racially polarized to an extent cognizable under ž 2 will lead to results that are inconsistent with congressional intent. North Carolina maintains that the court considered legally significant racially polarized voting to occur whenever less than 50% of the white voters cast a ballot for the black candidate. Brief for Appellants 36. Appellants also argue that racially polarized voting is legally significant only when it always results in the defeat of black candidates. Id., at 39-40. The United States, on the other hand, isolates a single line in the court's opinion and identifies it as the court's complete test. According to the United States, the District Court adopted a standard under which legally significant racial bloc voting is deemed to exist whenever  `the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters in the election.'  Brief for United States as Amicus Curiae 29 (quoting 590 F. Supp., at 368). We read the District Court opinion differently. 2. The Standard for Legally Significant Racial Bloc Voting The Senate Report states that the extent to which voting in the elections of the state or political subdivision is racially polarized, S. Rep., at 29, is relevant to a vote dilution claim. Further, courts and commentators agree that racial bloc voting is a key element of a vote dilution claim. See, e. g., Escambia County, Fla., 748 F. 2d, at 1043; United States v. Marengo County Comm'n, 731 F. 2d 1546, 1566 (CA11), appeal dism'd and cert. denied, 469 U. S. 976 (1984); Nevett v. Sides, 571 F. 2d 209, 223 (CA5 1978), cert. denied, 446 U. S. 951 (1980); Johnson v. Halifax County, 594 F. Supp. 161, 170 (EDNC 1984); Blacksher & Menefee; Engstrom & Wildgen, 465, 469; Parker 107; Note, Geometry and Geography 199. Because, as we explain below, the extent of bloc voting necessary to demonstrate that a minority's ability to elect its preferred representatives is impaired varies according to several factual circumstances, the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district. Nonetheless, it is possible to state some general principles and we proceed to do so. The purpose of inquiring into the existence of racially polarized voting is twofold: to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates. See supra, at 48-51. Thus, the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, Blacksher & Menefee 59-60, and n. 344, and, consequently, establishes minority bloc voting within the context of ž 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white crossover votes rises to the level of legally significant white bloc voting. Id., at 60. The amount of white bloc voting that can generally minimize or cancel, S. Rep., at 28; Regester, 412 U. S., at 765, black voters' ability to elect representatives of their choice, however, will vary from district to district according to a number of factors, including the nature of the allegedly dilutive electoral mechanism; the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; the percentage of registered voters in the district who are members of the minority group; the size of the district; and, in multimember districts, the number of seats open and the number of candidates in the field. [24] See, e. g., Butler 874-876; Davidson 5; Jones, The Impact of Local Election Systems on Black Political Representation, 11 Urb. Aff. Q. 345 (1976); United States Commission on Civil Rights, The Voting Rights Act: Unfulfilled Goals 38-41 (1981). Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, Whitcomb, 403 U. S., at 153, a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences legally significant polarization than are the results of a single election. [25] Blacksher & Menefee 61; Note, Geometry and Geography 200, n. 66 (Racial polarization should be seen as an attribute not of a single election, but rather of a polity viewed over time. The concern is necessarily temporal and the analysis historical because the evil to be avoided is the subordination of minority groups in American politics, not the defeat of individuals in particular electoral contests). Also for this reason, in a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest. [26] As must be apparent, the degree of racial bloc voting that is cognizable as an element of a ž 2 vote dilution claim will vary according to a variety of factual circumstances. Consequently, there is no simple doctrinal test for the existence of legally significant racial bloc voting. However, the foregoing general principles should provide courts with substantial guidance in determining whether evidence that black and white voters generally prefer different candidates rises to the level of legal significance under ž 2. 3. Standard Utilized by the District Court The District Court clearly did not employ the simplistic standard identified by North Carolina ÔÇö legally significant bloc voting occurs whenever less than 50% of the white voters cast a ballot for the black candidate. Brief for Appellants 36. And, although the District Court did utilize the measure of substantive significance that the United States ascribes to it ÔÇö  `the results of the individual election would have been different depending on whether it had been held among only the white voters or only the black voters,'  Brief for United States as Amicus Curiae 29 (quoting 590 F. Supp., at 368) ÔÇö the court did not reach its ultimate conclusion that the degree of racial bloc voting present in each district is legally significant through mechanical reliance on this standard. [27] While the court did not phrase the standard for legally significant racial bloc voting exactly as we do, a fair reading of the court's opinion reveals that the court's analysis conforms to our view of the proper legal standard. The District Court's findings concerning black support for black candidates in the five multimember districts at issue here clearly establish the political cohesiveness of black voters. As is apparent from the District Court's tabulated findings, reproduced in Appendix A to opinion, post, p. 80, black voters' support for black candidates was overwhelming in almost every election. In all but 5 of 16 primary elections, black support for black candidates ranged between 71% and 92%; and in the general elections, black support for black Democratic candidates ranged between 87% and 96%. In sharp contrast to its findings of strong black support for black candidates, the District Court found that a substantial majority of white voters would rarely, if ever, vote for a black candidate. In the primary elections, white support for black candidates ranged between 8% and 50%, and in the general elections it ranged between 28% and 49%. See ibid. The court also determined that, on average, 81.7% of white voters did not vote for any black candidate in the primary elections. In the general elections, white voters almost always ranked black candidates either last or next to last in the multicandidate field, except in heavily Democratic areas where white voters consistently ranked black candidates last among the Democrats, if not last or next to last among all candidates. The court further observed that approximately two-thirds of white voters did not vote for black candidates in general elections, even after the candidate had won the Democratic primary and the choice was to vote for a Republican or for no one. [28] While the District Court did not state expressly that the percentage of whites who refused to vote for black candidates in the contested districts would, in the usual course of events, result in the defeat of the minority's candidates, that conclusion is apparent both from the court's factual findings and from the rest of its analysis. First, with the exception of House District 23, see infra, at 77, the trial court's findings clearly show that black voters have enjoyed only minimal and sporadic success in electing representatives of their choice. See Appendix B to opinion, post, p. 82. Second, where black candidates won elections, the court closely examined the circumstances of those elections before concluding that the success of these blacks did not negate other evidence, derived from all of the elections studied in each district, that legally significant racially polarized voting exists in each district. For example, the court took account of the benefits incumbency and running essentially unopposed conferred on some of the successful black candidates, [29] as well as of the very different order of preference blacks and whites assigned black candidates, [30] in reaching its conclusion that legally significant racial polarization exists in each district. We conclude that the District Court's approach, which tested data derived from three election years in each district, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper legal standard.
+North Carolina and the United States also contest the evidence upon which the District Court relied in finding that voting patterns in the challenged districts were racially polarized. They argue that the term racially polarized voting must, as a matter of law, refer to voting patterns for which the principal cause is race. They contend that the District Court utilized a legally incorrect definition of racially polarized voting by relying on bivariate statistical analyses which merely demonstrated a correlation between the race of the voter and the level of voter support for certain candidates, but which did not prove that race was the primary determinant of voters' choices. According to appellants and the United States, only multiple regression analysis, which can take account of other variables which might also explain voters' choices, such as party affiliation, age, religion, income[,] incumbency, education, campaign expenditures, Brief for Appellants 42, media use measured by cost, . . . name, identification, or distance that a candidate lived from a particular precinct, Brief for United States as Amicus Curiae 30, n. 57, can prove that race was the primary determinant of voter behavior. [31] Whether appellants and the United States believe that it is the voter's race or the candidate's race that must be the primary determinant of the voter's choice is unclear; indeed, their catalogs of relevant variables suggest both. [32] Age, religion, income, and education seem most relevant to the voter; incumbency, campaign expenditures, name identification, and media use are pertinent to the candidate; and party affiliation could refer both to the voter and the candidate. In either case, we disagree: For purposes of ž 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates. Grofman, Migalski, & Noviello 203. As we demonstrate infra, appellants' theory of racially polarized voting would thwart the goals Congress sought to achieve when it amended ž 2 and would prevent courts from performing the functional analysis of the political process, S. Rep., at 30, n. 119, and the searching practical evaluation of the `past and present reality,'  id., at 30 (footnote omitted), mandated by the Senate Report. 2. Causation Irrelevant to Section 2 Inquiry The first reason we reject appellants' argument that racially polarized voting refers to voting patterns that are in some way caused by race, rather than to voting patterns that are merely correlated with the race of the voter, is that the reasons black and white voters vote differently have no relevance to the central inquiry of ž 2. By contrast, the correlation between race of voter and the selection of certain candidates is crucial to that inquiry. Both ž 2 itself and the Senate Report make clear that the critical question in a ž 2 claim is whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See, e. g., S. Rep., at 2, 27, 28, 29, n. 118, 36. As we explained, supra, at 47-48, multimember districts may impair the ability of blacks to elect representatives of their choice where blacks vote sufficiently as a bloc as to be able to elect their preferred candidates in a black majority, single-member district and where a white majority votes sufficiently as a bloc usually to defeat the candidates chosen by blacks. It is the difference between the choices made by blacks and whites ÔÇö not the reasons for that difference ÔÇö that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that under the results test of ž 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters. The irrelevance to a ž 2 inquiry of the reasons why black and white voters vote differently supports, by itself, our rejection of appellants' theory of racially polarized voting. However, their theory contains other equally serious flaws that merit further attention. As we demonstrate below, the addition of irrelevant variables distorts the equation and yields results that are indisputably incorrect under ž 2 and the Senate Report. 3. Race of Voter as Primary Determinant of Voter Behavior Appellants and the United States contend that the legal concept of racially polarized voting refers not to voting patterns that are merely correlated with the voter's race, but to voting patterns that are determined primarily by the voter's race, rather than by the voter's other socioeconomic characteristics. The first problem with this argument is that it ignores the fact that members of geographically insular racial and ethnic groups frequently share socioeconomic characteristics, such as income level, employment status, amount of education, housing and other living conditions, religion, language, and so forth. See, e. g., Butler 902 (Minority group members' shared concerns, including political ones, are . . . a function of group status, and as such are largely involuntary. . . . As a group blacks are concerned, for example, with police brutality, substandard housing, unemployment, etc., because these problems fall disproportionately upon the group); S. Verba & N. Nie, Participation in America 151-152 (1972) (Socioeconomic status . . . is closely related to race. Blacks in American society are likely to be in lower-status jobs than whites, to have less education, and to have lower incomes). Where such characteristics are shared, race or ethnic group not only denotes color or place of origin, it also functions as a shorthand notation for common social and economic characteristics. Appellants' definition of racially polarized voting is even more pernicious where shared characteristics are causally related to race or ethnicity. The opportunity to achieve high employment status and income, for example, is often influenced by the presence or absence of racial or ethnic discrimination. A definition of racially polarized voting which holds that black bloc voting does not exist when black voters' choice of certain candidates is most strongly influenced by the fact that the voters have low incomes and menial jobs ÔÇö when the reason most of those voters have menial jobs and low incomes is attributable to past or present racial discrimination ÔÇö runs counter to the Senate Report's instruction to conduct a searching and practical evaluation of past and present reality, S. Rep., at 30, and interferes with the purpose of the Voting Rights Act to eliminate the negative effects of past discrimination on the electoral opportunities of minorities. Id., at 5, 40. Furthermore, under appellants' theory of racially polarized voting, even uncontrovertible evidence that candidates strongly preferred by black voters are always defeated by a bloc voting white majority would be dismissed for failure to prove racial polarization whenever the black and white populations could be described in terms of other socioeconomic characteristics. To illustrate, assume a racially mixed, urban multimember district in which blacks and whites possess the same socioeconomic characteristics that the record in this case attributes to blacks and whites in Halifax County, a part of Senate District 2. The annual mean income for blacks in this district is $10,465, and 47.8% of the black community lives in poverty. More than half ÔÇö 51.5% ÔÇö of black adults over the age of 25 have only an eighth-grade education or less. Just over half of black citizens reside in their own homes; 48.9% live in rental units. And, almost a third of all black households are without a car. In contrast, only 12.6% of the whites in the district live below the poverty line. Whites enjoy a mean income of $19,042. White residents are better educated than blacks ÔÇö only 25.6% of whites over the age of 25 have only an eighth-grade education or less. Furthermore, only 26.2% of whites live in rental units, and only 10.2% live in households with no vehicle available. 1 App., Ex-44. As is the case in Senate District 2, blacks in this hypothetical urban district have never been able to elect a representative of their choice. According to appellants' theory of racially polarized voting, proof that black and white voters in this hypothetical district regularly choose different candidates and that the blacks' preferred candidates regularly lose could be rejected as not probative of racial bloc voting. The basis for the rejection would be that blacks chose a certain candidate, not principally because of their race, but principally because this candidate best represented the interests of residents who, because of their low incomes, are particularly interested in government-subsidized health and welfare services; who are generally poorly educated, and thus share an interest in job training programs; who are, to a greater extent than the white community, concerned with rent control issues; and who favor major public transportation expenditures. Similarly, whites would be found to have voted for a different candidate, not principally because of their race, but primarily because that candidate best represented the interests of residents who, due to their education and income levels, and to their property and vehicle ownership, favor gentrification, low residential property taxes, and extensive expenditures for street and highway improvements. Congress could not have intended that courts employ this definition of racial bloc voting. First, this definition leads to results that are inconsistent with the effects test adopted by Congress when it amended ž 2 and with the Senate Report's admonition that courts take a functional view of the political process, S. Rep. 30, n. 119, and conduct a searching and practical evaluation of reality. Id., at 30. A test for racially polarized voting that denies the fact that race and socioeconomic characteristics are often closely correlated permits neither a practical evaluation of reality nor a functional analysis of vote dilution. And, contrary to Congress' intent in adopting the results test, appellants' proposed definition could result in the inability of minority voters to establish a critical element of a vote dilution claim, even though both races engage in monolithic bloc voting, id., at 33, and generations of black voters have been unable to elect a representative of their choice. Second, appellants' interpretation of racially polarized voting creates an irreconcilable tension between their proposed treatment of socioeconomic characteristics in the bloc voting context and the Senate Report's statement that the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health may be relevant to a ž 2 claim. Id., at 29. We can find no support in either logic or the legislative history for the anomalous conclusion to which appellants' position leads ÔÇö that Congress intended, on the one hand, that proof that a minority group is predominately poor, uneducated, and unhealthy should be considered a factor tending to prove a ž 2 violation; but that Congress intended, on the other hand, that proof that the same socioeconomic characteristics greatly influence black voters' choice of candidates should destroy these voters' ability to establish one of the most important elements of a vote dilution claim. 4. Race of Candidate as Primary Determinant of Voter Behavior North Carolina's and the United States' suggestion that racially polarized voting means that voters select or reject candidates principally on the basis of the candidate's race is also misplaced. First, both the language of ž 2 and a functional understanding of the phenomenon of vote dilution mandate the conclusion that the race of the candidate per se is irrelevant to racial bloc voting analysis. Section 2(b) states that a violation is established if it can be shown that members of a protected minority group have less opportunity than other members of the electorate to . . . elect representatives of their choice.  (Emphasis added.) Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites. Cf. Letter to the Editor from Chandler Davidson, 17 New Perspectives 38 (Fall 1985). Indeed, the facts of this case illustrate that tendency ÔÇö blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the black candidate and to the preferred representative of white voters as the white candidate. Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a ž 2 inquiry. Under ž 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important. An understanding of how vote dilution through submergence in a white majority works leads to the same conclusion. The essence of a submergence claim is that minority group members prefer certain candidates whom they could elect were it not for the interaction of the challenged electoral law or structure with a white majority that votes as a significant bloc for different candidates. Thus, as we explained in Part III, supra, the existence of racial bloc voting is relevant to a vote dilution claim in two ways. Bloc voting by blacks tends to prove that the black community is politically cohesive, that is, it shows that blacks prefer certain candidates whom they could elect in a single-member, black majority district. Bloc voting by a white majority tends to prove that blacks will generally be unable to elect representatives of their choice. Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis. See, e. g., Blacksher & Menefee 59-60; Grofman, Should Representatives be Typical?, in Representation and Redistricting Issues 98; Note, Geometry and Geography 207. Second, appellants' suggestion that racially polarized voting refers to voting patterns where whites vote for white candidates because they prefer members of their own race or are hostile to blacks, as opposed to voting patterns where whites vote for white candidates because the white candidates spent more on their campaigns, utilized more media coverage, and thus enjoyed greater name recognition than the black candidates, fails for another, independent reason. This argument, like the argument that the race of the voter must be the primary determinant of the voter's ballot, is inconsistent with the purposes of ž 2 and would render meaningless the Senate Report factor that addresses the impact of low socioeconomic status on a minority group's level of political participation. Congress intended that the Voting Rights Act eradicate inequalities in political opportunities that exist due to the vestigial effects of past purposeful discrimination. S. Rep., at 5, 40; H. R. Rep. No. 97-227, p. 31 (1981). Both this Court and other federal courts have recognized that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes. See, e. g., White v. Regester, 412 U. S., at 768-769; Kirksey v. Board of Supervisors of Hinds County, Miss., 554 F. 2d 139, 145-146 (CA5) (en banc), cert. denied, 434 U. S. 968 (1977). See also S. Verba & N. Nie, Participation in America 152 (1972). The Senate Report acknowledges this tendency and instructs that the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process, S. Rep., at 29 (footnote omitted), is a factor which may be probative of unequal opportunity to participate in the political process and to elect representatives. Courts and commentators have recognized further that candidates generally must spend more money in order to win election in a multimember district than in a single-member district. See, e. g., Graves v. Barnes, 343 F. Supp. 704, 720-721 (WD Tex. 1972), aff'd in part and rev'd in part sub nom. White v. Regester, supra . Berry & Dye 88; Davidson & Fraga, Nonpartisan Slating Groups in an At-Large Setting, in Minority Vote Dilution 122-123; Derfner 554, n. 126; Jewell 131; Karnig, Black Representation on City Councils, 12 Urb. Aff. Q. 223, 230 (1976). If, because of inferior education and poor employment opportunities, blacks earn less than whites, they will not be able to provide the candidates of their choice with the same level of financial support that whites can provide theirs. Thus, electoral losses by candidates preferred by the black community may well be attributable in part to the fact that their white opponents outspent them. But, the fact is that, in this instance, the economic effects of prior discrimination have combined with the multimember electoral structure to afford blacks less opportunity than whites to participate in the political process and to elect representatives of their choice. It would be both anomalous and inconsistent with congressional intent to hold that, on the one hand, the effects of past discrimination which hinder blacks' ability to participate in the political process tend to prove a ž 2 violation, while holding on the other hand that, where these same effects of past discrimination deter whites from voting for blacks, blacks cannot make out a crucial element of a vote dilution claim. Accord, Escambia County, 748 F. 2d, at 1043 ( `[T]he failure of the blacks to solicit white votes may be caused by the effects of past discrimination' ) (quoting United States v. Dallas County Comm'n, 739 F. 2d 1529, 1536 (CA11 1984)); United States v. Marengo County Comm'n, 731 F. 2d, at 1567. 5. Racial Animosity as Primary Determinant of Voter Behavior Finally, we reject the suggestion that racially polarized voting refers only to white bloc voting which is caused by white voters' racial hostility toward black candidates. [33] To accept this theory would frustrate the goals Congress sought to achieve by repudiating the intent test of Mobile v. Bolden, 446 U. S. 55 (1980), and would prevent minority voters who have clearly been denied an opportunity to elect representatives of their choice from establishing a critical element of a vote dilution claim. In amending ž 2, Congress rejected the requirement announced by this Court in Bolden, supra, that ž 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. [34] Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a ž 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How. L. J. 495 (1985). The Senate Report states that one reason the Senate Committee abandoned the intent test was that the Committee. . . heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities. S. Rep., at 36. The Committee found the testimony of Dr. Arthur S. Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified:  `[Under an intent test] [l]itigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquiries can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief.'  Ibid. (footnote omitted). The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement. A second reason Congress rejected the old intent test was that in most cases it placed an inordinately difficult burden on ž 2 plaintiffs. Ibid. The new intent test would be equally, if not more, burdensome. In order to prove that a specific factor ÔÇö racial hostility ÔÇö determined white voters' ballots, it would be necessary to demonstrate that other potentially relevant causal factors, such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior. As one commentator has explained: Many of the[se] independent variables . . . would be all but impossible for a social scientist to operationalize as interval-level independent variables for use in a multiple regression equation, whether on a step-wise basis or not. To conduct such an extensive statistical analysis as this implies, moreover, can become prohibitively expensive. Compared to this sort of effort, proving discriminatory intent in the adoption of an at-large election system is both simple and inexpensive. McCrary, Discriminatory Intent: The Continuing Relevance of Purpose Evidence in Vote-Dilution Lawsuits, 28 How. L. J. 463, 492 (1985) (footnote omitted). The final and most dispositive reason the Senate Report repudiated the old intent test was that it asks the wrong question. S. Rep., at 36. Amended ž 2 asks instead whether minorities have equal access to the process of electing their representatives. Ibid. Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under ž 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, supra, requiring proof that racial considerations actually caused voter behavior will result ÔÇö contrary to congressional intent ÔÇö in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a ž 2 violation. The Senate Report's remark concerning the old intent test thus is pertinent to the new test: The requirement that a court . . . make a separate . . . finding of intent, after accepting the proof of the factors involved in the White [v. Regester, 412 U. S. 755] analysis . . . [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections. Id., at 37. We therefore decline to adopt such a requirement. 6. Summary In sum, we would hold that the legal concept of racially polarized voting, as it relates to claims of vote dilution, refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting and defendants may not rebut that case with evidence of causation or intent.",racially polarized voting
+179,111736,2,1,"The investigation conducted by the District Court into the question of racial bloc voting credited some testimony of lay witnesses, but relied principally on statistical evidence presented by appellees' expert witnesses, in particular that offered by Dr. Bernard Grofman. Dr. Grofman collected and evaluated data from 53 General Assembly primary and general elections involving black candidacies. These elections were held over a period of three different election years in the six originally challenged multimember districts. [19] Dr. Grofman subjected the data to two complementary methods of analysis ÔÇö extreme case analysis and bivariate ecological regression analysis [20] ÔÇö in order to determine whether blacks and whites in these districts differed in their voting behavior. These analytic techniques yielded data concerning the voting patterns of the two races, including estimates of the percentages of members of each race who voted for black candidates. The court's initial consideration of these data took the form of a three-part inquiry: did the data reveal any correlation between the race of the voter and the selection of certain candidates; was the revealed correlation statistically significant; and was the difference in black and white voting patterns substantively significant? The District Court found that blacks and whites generally preferred different candidates and, on that basis, found voting in the districts to be racially correlated. [21] The court accepted Dr. Grofman's expert opinion that the correlation between the race of the voter and the voter's choice of certain candidates was statistically significant. [22] Finally, adopting Dr. Grofman's terminology, see Tr. 195, the court found that in all but 2 of the 53 elections [23] the degree of racial bloc voting was so marked as to be substantively significant, in the sense that the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters. 590 F. Supp., at 368. The court also reported its findings, both in tabulated numerical form and in written form, that a high percentage of black voters regularly supported black candidates and that most white voters were extremely reluctant to vote for black candidates. The court then considered the relevance to the existence of legally significant white bloc voting of the fact that black candidates have won some elections. It determined that in most instances, special circumstances, such as incumbency and lack of opposition, rather than a diminution in usually severe white bloc voting, accounted for these candidates' success. The court also suggested that black voters' reliance on bullet voting was a significant factor in their successful efforts to elect candidates of their choice. Based on all of the evidence before it, the trial court concluded that each of the districts experienced racially polarized voting in a persistent and severe degree. Id., at 367.",the district court's treatment of racially polarized voting
+180,111736,2,3,"North Carolina and the United States also contest the evidence upon which the District Court relied in finding that voting patterns in the challenged districts were racially polarized. They argue that the term racially polarized voting must, as a matter of law, refer to voting patterns for which the principal cause is race. They contend that the District Court utilized a legally incorrect definition of racially polarized voting by relying on bivariate statistical analyses which merely demonstrated a correlation between the race of the voter and the level of voter support for certain candidates, but which did not prove that race was the primary determinant of voters' choices. According to appellants and the United States, only multiple regression analysis, which can take account of other variables which might also explain voters' choices, such as party affiliation, age, religion, income[,] incumbency, education, campaign expenditures, Brief for Appellants 42, media use measured by cost, . . . name, identification, or distance that a candidate lived from a particular precinct, Brief for United States as Amicus Curiae 30, n. 57, can prove that race was the primary determinant of voter behavior. [31] Whether appellants and the United States believe that it is the voter's race or the candidate's race that must be the primary determinant of the voter's choice is unclear; indeed, their catalogs of relevant variables suggest both. [32] Age, religion, income, and education seem most relevant to the voter; incumbency, campaign expenditures, name identification, and media use are pertinent to the candidate; and party affiliation could refer both to the voter and the candidate. In either case, we disagree: For purposes of ž 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates. Grofman, Migalski, & Noviello 203. As we demonstrate infra, appellants' theory of racially polarized voting would thwart the goals Congress sought to achieve when it amended ž 2 and would prevent courts from performing the functional analysis of the political process, S. Rep., at 30, n. 119, and the searching practical evaluation of the `past and present reality,'  id., at 30 (footnote omitted), mandated by the Senate Report. 2. Causation Irrelevant to Section 2 Inquiry The first reason we reject appellants' argument that racially polarized voting refers to voting patterns that are in some way caused by race, rather than to voting patterns that are merely correlated with the race of the voter, is that the reasons black and white voters vote differently have no relevance to the central inquiry of ž 2. By contrast, the correlation between race of voter and the selection of certain candidates is crucial to that inquiry. Both ž 2 itself and the Senate Report make clear that the critical question in a ž 2 claim is whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See, e. g., S. Rep., at 2, 27, 28, 29, n. 118, 36. As we explained, supra, at 47-48, multimember districts may impair the ability of blacks to elect representatives of their choice where blacks vote sufficiently as a bloc as to be able to elect their preferred candidates in a black majority, single-member district and where a white majority votes sufficiently as a bloc usually to defeat the candidates chosen by blacks. It is the difference between the choices made by blacks and whites ÔÇö not the reasons for that difference ÔÇö that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that under the results test of ž 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters. The irrelevance to a ž 2 inquiry of the reasons why black and white voters vote differently supports, by itself, our rejection of appellants' theory of racially polarized voting. However, their theory contains other equally serious flaws that merit further attention. As we demonstrate below, the addition of irrelevant variables distorts the equation and yields results that are indisputably incorrect under ž 2 and the Senate Report. 3. Race of Voter as Primary Determinant of Voter Behavior Appellants and the United States contend that the legal concept of racially polarized voting refers not to voting patterns that are merely correlated with the voter's race, but to voting patterns that are determined primarily by the voter's race, rather than by the voter's other socioeconomic characteristics. The first problem with this argument is that it ignores the fact that members of geographically insular racial and ethnic groups frequently share socioeconomic characteristics, such as income level, employment status, amount of education, housing and other living conditions, religion, language, and so forth. See, e. g., Butler 902 (Minority group members' shared concerns, including political ones, are . . . a function of group status, and as such are largely involuntary. . . . As a group blacks are concerned, for example, with police brutality, substandard housing, unemployment, etc., because these problems fall disproportionately upon the group); S. Verba & N. Nie, Participation in America 151-152 (1972) (Socioeconomic status . . . is closely related to race. Blacks in American society are likely to be in lower-status jobs than whites, to have less education, and to have lower incomes). Where such characteristics are shared, race or ethnic group not only denotes color or place of origin, it also functions as a shorthand notation for common social and economic characteristics. Appellants' definition of racially polarized voting is even more pernicious where shared characteristics are causally related to race or ethnicity. The opportunity to achieve high employment status and income, for example, is often influenced by the presence or absence of racial or ethnic discrimination. A definition of racially polarized voting which holds that black bloc voting does not exist when black voters' choice of certain candidates is most strongly influenced by the fact that the voters have low incomes and menial jobs ÔÇö when the reason most of those voters have menial jobs and low incomes is attributable to past or present racial discrimination ÔÇö runs counter to the Senate Report's instruction to conduct a searching and practical evaluation of past and present reality, S. Rep., at 30, and interferes with the purpose of the Voting Rights Act to eliminate the negative effects of past discrimination on the electoral opportunities of minorities. Id., at 5, 40. Furthermore, under appellants' theory of racially polarized voting, even uncontrovertible evidence that candidates strongly preferred by black voters are always defeated by a bloc voting white majority would be dismissed for failure to prove racial polarization whenever the black and white populations could be described in terms of other socioeconomic characteristics. To illustrate, assume a racially mixed, urban multimember district in which blacks and whites possess the same socioeconomic characteristics that the record in this case attributes to blacks and whites in Halifax County, a part of Senate District 2. The annual mean income for blacks in this district is $10,465, and 47.8% of the black community lives in poverty. More than half ÔÇö 51.5% ÔÇö of black adults over the age of 25 have only an eighth-grade education or less. Just over half of black citizens reside in their own homes; 48.9% live in rental units. And, almost a third of all black households are without a car. In contrast, only 12.6% of the whites in the district live below the poverty line. Whites enjoy a mean income of $19,042. White residents are better educated than blacks ÔÇö only 25.6% of whites over the age of 25 have only an eighth-grade education or less. Furthermore, only 26.2% of whites live in rental units, and only 10.2% live in households with no vehicle available. 1 App., Ex-44. As is the case in Senate District 2, blacks in this hypothetical urban district have never been able to elect a representative of their choice. According to appellants' theory of racially polarized voting, proof that black and white voters in this hypothetical district regularly choose different candidates and that the blacks' preferred candidates regularly lose could be rejected as not probative of racial bloc voting. The basis for the rejection would be that blacks chose a certain candidate, not principally because of their race, but principally because this candidate best represented the interests of residents who, because of their low incomes, are particularly interested in government-subsidized health and welfare services; who are generally poorly educated, and thus share an interest in job training programs; who are, to a greater extent than the white community, concerned with rent control issues; and who favor major public transportation expenditures. Similarly, whites would be found to have voted for a different candidate, not principally because of their race, but primarily because that candidate best represented the interests of residents who, due to their education and income levels, and to their property and vehicle ownership, favor gentrification, low residential property taxes, and extensive expenditures for street and highway improvements. Congress could not have intended that courts employ this definition of racial bloc voting. First, this definition leads to results that are inconsistent with the effects test adopted by Congress when it amended ž 2 and with the Senate Report's admonition that courts take a functional view of the political process, S. Rep. 30, n. 119, and conduct a searching and practical evaluation of reality. Id., at 30. A test for racially polarized voting that denies the fact that race and socioeconomic characteristics are often closely correlated permits neither a practical evaluation of reality nor a functional analysis of vote dilution. And, contrary to Congress' intent in adopting the results test, appellants' proposed definition could result in the inability of minority voters to establish a critical element of a vote dilution claim, even though both races engage in monolithic bloc voting, id., at 33, and generations of black voters have been unable to elect a representative of their choice. Second, appellants' interpretation of racially polarized voting creates an irreconcilable tension between their proposed treatment of socioeconomic characteristics in the bloc voting context and the Senate Report's statement that the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health may be relevant to a ž 2 claim. Id., at 29. We can find no support in either logic or the legislative history for the anomalous conclusion to which appellants' position leads ÔÇö that Congress intended, on the one hand, that proof that a minority group is predominately poor, uneducated, and unhealthy should be considered a factor tending to prove a ž 2 violation; but that Congress intended, on the other hand, that proof that the same socioeconomic characteristics greatly influence black voters' choice of candidates should destroy these voters' ability to establish one of the most important elements of a vote dilution claim. 4. Race of Candidate as Primary Determinant of Voter Behavior North Carolina's and the United States' suggestion that racially polarized voting means that voters select or reject candidates principally on the basis of the candidate's race is also misplaced. First, both the language of ž 2 and a functional understanding of the phenomenon of vote dilution mandate the conclusion that the race of the candidate per se is irrelevant to racial bloc voting analysis. Section 2(b) states that a violation is established if it can be shown that members of a protected minority group have less opportunity than other members of the electorate to . . . elect representatives of their choice.  (Emphasis added.) Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites. Cf. Letter to the Editor from Chandler Davidson, 17 New Perspectives 38 (Fall 1985). Indeed, the facts of this case illustrate that tendency ÔÇö blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the black candidate and to the preferred representative of white voters as the white candidate. Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a ž 2 inquiry. Under ž 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important. An understanding of how vote dilution through submergence in a white majority works leads to the same conclusion. The essence of a submergence claim is that minority group members prefer certain candidates whom they could elect were it not for the interaction of the challenged electoral law or structure with a white majority that votes as a significant bloc for different candidates. Thus, as we explained in Part III, supra, the existence of racial bloc voting is relevant to a vote dilution claim in two ways. Bloc voting by blacks tends to prove that the black community is politically cohesive, that is, it shows that blacks prefer certain candidates whom they could elect in a single-member, black majority district. Bloc voting by a white majority tends to prove that blacks will generally be unable to elect representatives of their choice. Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis. See, e. g., Blacksher & Menefee 59-60; Grofman, Should Representatives be Typical?, in Representation and Redistricting Issues 98; Note, Geometry and Geography 207. Second, appellants' suggestion that racially polarized voting refers to voting patterns where whites vote for white candidates because they prefer members of their own race or are hostile to blacks, as opposed to voting patterns where whites vote for white candidates because the white candidates spent more on their campaigns, utilized more media coverage, and thus enjoyed greater name recognition than the black candidates, fails for another, independent reason. This argument, like the argument that the race of the voter must be the primary determinant of the voter's ballot, is inconsistent with the purposes of ž 2 and would render meaningless the Senate Report factor that addresses the impact of low socioeconomic status on a minority group's level of political participation. Congress intended that the Voting Rights Act eradicate inequalities in political opportunities that exist due to the vestigial effects of past purposeful discrimination. S. Rep., at 5, 40; H. R. Rep. No. 97-227, p. 31 (1981). Both this Court and other federal courts have recognized that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes. See, e. g., White v. Regester, 412 U. S., at 768-769; Kirksey v. Board of Supervisors of Hinds County, Miss., 554 F. 2d 139, 145-146 (CA5) (en banc), cert. denied, 434 U. S. 968 (1977). See also S. Verba & N. Nie, Participation in America 152 (1972). The Senate Report acknowledges this tendency and instructs that the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process, S. Rep., at 29 (footnote omitted), is a factor which may be probative of unequal opportunity to participate in the political process and to elect representatives. Courts and commentators have recognized further that candidates generally must spend more money in order to win election in a multimember district than in a single-member district. See, e. g., Graves v. Barnes, 343 F. Supp. 704, 720-721 (WD Tex. 1972), aff'd in part and rev'd in part sub nom. White v. Regester, supra . Berry & Dye 88; Davidson & Fraga, Nonpartisan Slating Groups in an At-Large Setting, in Minority Vote Dilution 122-123; Derfner 554, n. 126; Jewell 131; Karnig, Black Representation on City Councils, 12 Urb. Aff. Q. 223, 230 (1976). If, because of inferior education and poor employment opportunities, blacks earn less than whites, they will not be able to provide the candidates of their choice with the same level of financial support that whites can provide theirs. Thus, electoral losses by candidates preferred by the black community may well be attributable in part to the fact that their white opponents outspent them. But, the fact is that, in this instance, the economic effects of prior discrimination have combined with the multimember electoral structure to afford blacks less opportunity than whites to participate in the political process and to elect representatives of their choice. It would be both anomalous and inconsistent with congressional intent to hold that, on the one hand, the effects of past discrimination which hinder blacks' ability to participate in the political process tend to prove a ž 2 violation, while holding on the other hand that, where these same effects of past discrimination deter whites from voting for blacks, blacks cannot make out a crucial element of a vote dilution claim. Accord, Escambia County, 748 F. 2d, at 1043 ( `[T]he failure of the blacks to solicit white votes may be caused by the effects of past discrimination' ) (quoting United States v. Dallas County Comm'n, 739 F. 2d 1529, 1536 (CA11 1984)); United States v. Marengo County Comm'n, 731 F. 2d, at 1567. 5. Racial Animosity as Primary Determinant of Voter Behavior Finally, we reject the suggestion that racially polarized voting refers only to white bloc voting which is caused by white voters' racial hostility toward black candidates. [33] To accept this theory would frustrate the goals Congress sought to achieve by repudiating the intent test of Mobile v. Bolden, 446 U. S. 55 (1980), and would prevent minority voters who have clearly been denied an opportunity to elect representatives of their choice from establishing a critical element of a vote dilution claim. In amending ž 2, Congress rejected the requirement announced by this Court in Bolden, supra, that ž 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. [34] Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a ž 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How. L. J. 495 (1985). The Senate Report states that one reason the Senate Committee abandoned the intent test was that the Committee. . . heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities. S. Rep., at 36. The Committee found the testimony of Dr. Arthur S. Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified:  `[Under an intent test] [l]itigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquiries can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief.'  Ibid. (footnote omitted). The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement. A second reason Congress rejected the old intent test was that in most cases it placed an inordinately difficult burden on ž 2 plaintiffs. Ibid. The new intent test would be equally, if not more, burdensome. In order to prove that a specific factor ÔÇö racial hostility ÔÇö determined white voters' ballots, it would be necessary to demonstrate that other potentially relevant causal factors, such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior. As one commentator has explained: Many of the[se] independent variables . . . would be all but impossible for a social scientist to operationalize as interval-level independent variables for use in a multiple regression equation, whether on a step-wise basis or not. To conduct such an extensive statistical analysis as this implies, moreover, can become prohibitively expensive. Compared to this sort of effort, proving discriminatory intent in the adoption of an at-large election system is both simple and inexpensive. McCrary, Discriminatory Intent: The Continuing Relevance of Purpose Evidence in Vote-Dilution Lawsuits, 28 How. L. J. 463, 492 (1985) (footnote omitted). The final and most dispositive reason the Senate Report repudiated the old intent test was that it asks the wrong question. S. Rep., at 36. Amended ž 2 asks instead whether minorities have equal access to the process of electing their representatives. Ibid. Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under ž 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, supra, requiring proof that racial considerations actually caused voter behavior will result ÔÇö contrary to congressional intent ÔÇö in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a ž 2 violation. The Senate Report's remark concerning the old intent test thus is pertinent to the new test: The requirement that a court . . . make a separate . . . finding of intent, after accepting the proof of the factors involved in the White [v. Regester, 412 U. S. 755] analysis . . . [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections. Id., at 37. We therefore decline to adopt such a requirement. 6. Summary In sum, we would hold that the legal concept of racially polarized voting, as it relates to claims of vote dilution, refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting and defendants may not rebut that case with evidence of causation or intent.",EVIDENCE OF RACIALLY POLARIZED VOTING.1.Appellants' Argument
+181,111736,1,4,"
+North Carolina and the United States maintain that the District Court failed to accord the proper weight to the success of some black candidates in the challenged districts. Black residents of these districts, they point out, achieved improved representation in the 1982 General Assembly election. [35] They also note that blacks in House District 23 have enjoyed proportional representation consistently since 1973 and that blacks in the other districts have occasionally enjoyed nearly proportional representation. [36] This electoral success demonstrates conclusively, appellants and the United States argue, that blacks in those districts do not have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 42 U. S. C. ž 1973(b). Essentially, appellants and the United States contend that if a racial minority gains proportional or nearly proportional representation in a single election, that fact alone precludes, as a matter of law, finding a ž 2 violation. Section 2(b) provides that [t]he extent to which members of a protected class have been elected to office . . . is one circumstance which may be considered. 42 U. S. C. ž 1973(b). The Senate Committee Report also identifies the extent to which minority candidates have succeeded as a pertinent factor. S. Rep., at 29. However, the Senate Report expressly states that the election of a few minority candidates does not `necessarily foreclose the possibility of dilution of the black vote,'  noting that if it did, the possibility exists that the majority citizens might evade [ž 2] by manipulating the election of a `safe' minority candidate. Id., at 29, n. 115, quoting Zimmer v. McKeithen, 485 F. 2d 1297, 1307 (CA5 1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U. S. 636 (1976) (per curiam) . The Senate Committee decided, instead, to  `require an independent consideration of the record.'  S. Rep., at 29, n. 115. The Senate Report also emphasizes that the question whether the political processes are `equally open' depends upon a searching practical evaluation of the `past and present reality.'  Id., at 30 (footnote omitted). Thus, the language of ž 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a ž 2 claim. Moreover, in conducting its independent consideration of the record and its searching practical evaluation of the `past and present reality,'  the District Court could appropriately take account of the circumstances surrounding recent black electoral success in deciding its significance to appellees' claim. In particular, as the Senate Report makes clear, id., at 29, n. 115, the court could properly notice the fact that black electoral success increased markedly in the 1982 election ÔÇö an election that occurred after the instant lawsuit had been filed ÔÇö and could properly consider to what extent the pendency of this very litigation [might have] worked a one-time advantage for black candidates in the form of unusual organized political support by white leaders concerned to forestall single-member districting. [37] 590 F. Supp., at 367, n. 27. Nothing in the statute or its legislative history prohibited the court from viewing with some caution black candidates' success in the 1982 election, and from deciding on the basis of all the relevant circumstances to accord greater weight to blacks' relative lack of success over the course of several recent elections. Consequently, we hold that the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have succeeded as dispositive of appellees' ž 2 claim. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters.
+The District Court did err, however, in ignoring the significance of the sustained success black voters have experienced in House District 23. In that district, the last six elections have resulted in proportional representation for black residents. This persistent proportional representation is inconsistent with appellees' allegation that the ability of black voters in District 23 to elect representatives of their choice is not equal to that enjoyed by the white majority. In some situations, it may be possible for ž 2 plaintiffs to demonstrate that such sustained success does not accurately reflect the minority group's ability to elect its preferred representatives, [38] but appellees have not done so here. Appellees presented evidence relating to black electoral success in the last three elections; they failed utterly, though, to offer any explanation for the success of black candidates in the previous three elections. Consequently, we believe that the District Court erred, as a matter of law, in ignoring the sustained success black voters have enjoyed in House District 23, and would reverse with respect to that District.",the legal significance of some black candidates' success
+182,111736,1,5,"Finally, appellants and the United States dispute the District Court's ultimate conclusion that the multimember districting scheme at issue in this case deprived black voters of an equal opportunity to participate in the political process and to elect representatives of their choice.
+As an initial matter, both North Carolina and the United States contend that the District Court's ultimate conclusion that the challenged multimember districts operate to dilute black citizens' votes is a mixed question of law and fact subject to de novo review on appeal. In support of their proposed standard of review, they rely primarily on Bose Corp. v. Consumers Union of U. S., Inc., 466 U. S. 485 (1984), a case in which we reconfirmed that, as a matter of constitutional law, there must be independent appellate review of evidence of actual malice in defamation cases. Appellants and the United States argue that because a finding of vote dilution under amended ž 2 requires the application of a rule of law to a particular set of facts it constitutes a legal, rather than factual, determination. Reply Brief for Appellants 7; Brief for United States as Amicus Curiae 18-19. Neither appellants nor the United States cite our several precedents in which we have treated the ultimate finding of vote dilution as a question of fact subject to the clearly-erroneous standard of Rule 52(a). See, e. g., Rogers v. Lodge, 458 U. S., at 622-627; City of Rome v. United States, 446 U. S. 156, 183 (1980); White v. Regester, 412 U. S., at 765-770. Cf. Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). In Regester, supra, we noted that the District Court had based its conclusion that minority voters in two multimember districts in Texas had less opportunity to participate in the political process than majority voters on the totality of the circumstances and stated that we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the . . . multimember district in the light of past and present reality, political and otherwise. Id., at 769-770. Quoting this passage from Regester with approval, we expressly held in Rogers v. Lodge, supra , that the question whether an at-large election system was maintained for discriminatory purposes and subsidiary issues, which include whether that system had the effect of diluting the minority vote, were questions of fact, reviewable under Rule 52(a)'s clearly-erroneous standard. 458 U. S., at 622-623. Similarly, in City of Rome v. United States , we declared that the question whether certain electoral structures had a discriminatory effect, in the sense of diluting the minority vote, was a question of fact subject to clearly-erroneous review. 446 U. S., at 183. We reaffirm our view that the clearly-erroneous test of Rule 52(a) is the appropriate standard for appellate review of a finding of vote dilution. As both amended ž 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the totality of the circumstances and to determine, based upon a searching practical evaluation of the `past and present reality,'  S. Rep., at 30 (footnote omitted), whether the political process is equally open to minority voters.  `This determination is peculiarly dependent upon the facts of each case,'  Rogers, supra, at 621, quoting Nevett v. Sides, 571 F. 2d 209, 224 (CA5 1978), and requires an intensely local appraisal of the design and impact of the contested electoral mechanisms. 458 U. S., at 622. The fact that amended ž 2 and its legislative history provide legal standards which a court must apply to the facts in order to determine whether ž 2 has been violated does not alter the standard of review. As we explained in Bose, Rule 52(a) does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law. 466 U. S., at 501, citing Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 855, n. 15 (1982). Thus, the application of the clearly-erroneous standard to ultimate findings of vote dilution preserves the benefit of the trial court's particular familiarity with the indigenous political reality without endangering the rule of law.
+The District Court in this case carefully considered the totality of the circumstances and found that in each district racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. It found that the success a few black candidates have enjoyed in these districts is too recent, too limited, and, with regard to the 1982 elections, perhaps too aberrational, to disprove its conclusion. Excepting House District 23, with respect to which the District Court committed legal error, see supra, at 77, we affirm the District Court's judgment. We cannot say that the District Court, composed of local judges who are well acquainted with the political realities of the State, clearly erred in concluding that use of a multimember electoral structure has caused black voters in the districts other than House District 23 to have less opportunity than white voters to elect representatives of their choice. The judgment of the District Court is Affirmed in part and reversed in part. APPENDIX A TO OPINION OF BRENNAN, J..Percentages of Votes Cast by Black and White Voters for Black Candidates in the Five Contested Districts. Senate District 22 Primary General White Black White Black 1978 (Alexander) 47 87 41 94 1980 (Alexander) 23 78 n/a n/a 1982 (Polk) 32 83 33 94 House District 21 Primary General White Black White Black 1978 (Blue) 21 76 n/a n/a 1980 (Blue) 31 81 44 90 1982 (Blue) 39 82 45 91 House District 23 Primary General White Black White Black 1978 Senate Barns (Repub.) n/a n/a 17 5 1978 House Clement 10 89 n/a n/a Spaulding 16 92 37 89 1980 House Spaulding n/a n/a 49 90 1982 House Clement 26 32 n/a n/a Spaulding 37 90 43 89 House District 36 Primary General White Black White Black 1980 (Maxwell) 22 71 28 92 1982 (Berry) 50 79 42 92 1982 (Richardson) 39 71 29 88 House District 39 Primary General White Black White Black 1978 House Kennedy, H. 28 76 32 93 Norman 8 29 n/a n/a Ross 17 53 n/a n/a Sumter (Repub.) n/a n/a 33 25 House District 39 Primary General White Black White Black 1980 House Kennedy, A. 40 86 32 96 Norman 18 36 n/a n/a 1980 Senate Small 12 61 n/a n/a 1982 House Hauser 25 80 42 87 Kennedy, A. 36 87 46 94 590 F. Supp., at 369-371. APPENDIX B TO OPINION OF BRENNAN, J..Black Candidates Elected From 7 Originally Contested Districts District Prior to (No. Seats) 1972 1972 1974 1976 1978 1980 1982 House 8 (4) 0 0 0 0 0 0 0 House 21 (6) 0 0 0 0 0 1 1 House 23 (3) 0 1 1 1 1 1 1 House 36 (8) 0 0 0 0 0 0 1 House 39 (5) 0 0 1 1 0 0 2 Senate 2 (2) 0 0 0 0 0 0 0 Senate 22 (4) 0 0 1 1 1 0 0 See Brief for Appellees, table printed between pages 8 and 9; App. 93-94.",ultimate determination of vote dilution
+183,104651,1,1,"The facts which occasion maintenance and cure for this seaman are not in dispute. The claimant, 22 years of age and in good health, was a member of the Merchant Marine. He was in the service of the S.S. James E. Haviland, a merchant vessel owned and operated by the United States as a cargo and troop ship. On February 5, 1944, she was docked at Palermo, Sicily, and Farrell was granted shore leave which required his return to the ship by 6 p.m. of the same day. He overstayed his leave and about eight o'clock began, in rain and darkness, to make his way to the ship. He became lost and was misdirected to the wrong gate, by which he entered the shore-front area about a mile from where the ship lay moored. The area generally was blacked out but petitioner's companion, forty or fifty feet away, saw him fall over a guard chain into a drydock which was lighted sufficiently for night work then in progress. Farrell was grievously injured. He was treated without expense to himself in various government hospitals until June 30, 1944, when he was discharged at Norfolk, Virginia, as completely disabled. He is totally and permanently blind and suffers post-traumatic convulsions which probably will become more frequent and are without possibility of further cure. From time to time he will require some medical care to ease attacks of headaches and epileptic convulsions. The court below concluded that the duty of a shipowner to furnish maintenance and cure does not extend beyond the time when the maximum cure possible has been effected. Petitioner contends that he is entitled to maintenance as long as he is disabled, which in this case is for life. Admittedly there is no authority in any statute or American admiralty decisions for the proposition that he is entitled to maintenance for life. But an argument is based upon the ancient authority of Cleirac, Jugmens d'Oleron, Arts. 6 and 7 and notes by Cleirac; Consolato del Mare, cc. 182, 137; 2 Pard Coll. Mar. 152; to which American authorities have paid considerable respect. See Story, Circuit Justice, in Reed v. Canfield , Fed. Cas. No. 11,641, p. 429. A translation of the note relied upon reads: If in defending himself, or fighting against an enemy or corsairs, a mariner is maimed, or disabled to serve on board a ship for the rest of his life, besides the charge of his cure, he shall be maintained as long as he lives at the cost of the ship and cargo. Vide the Hanseatic law, art. 35. 1 Peters' Admiralty Decisions (1807), Appendix, p. xv. Article 35 of the Laws of the Hanse Towns referred to reads: ART. XXXV. The seamen are obliged to defend their ship against rovers, on pain of losing their wages; and if they are wounded, they shall be healed and cured at the general charge of the concerned in a common average. If anyone of them is maimed and disabled, he shall be maintained as long as he lives by a like average. Ibid., p. civ. We need not elaborate upon the meanings or weight to be given to these medieval pronouncements of maritime law. As they show, they were written when pirates were not operatic characters but were real-life perils of the sea. When they bore down on a ship, all was lost unless the seaman would hazard life and limb in desperate defense. If they saved the ship and cargo, it was something in the nature of salvage and for their sacrifice in the effort a contribution on principles of average may have been justly due. Perhaps more than humanitarian considerations, inducement to stand by the ship generated the doctrine that saving the ship and her cargo from pirates entitles the seaman to lifelong maintenance if he is disabled in the struggle. But construe the old-time law with what liberality we will, it cannot be made to cover the facts of this case. This ship was not beset but was snug at berth in a harbor that had capitulated to the United States and her allied forces six months before. No sea rovers, pirates or corsairs appeared to have menaced her. It is true that the ship was engaged in warlike operations and was a legitimate target for enemy aircraft or naval vessels, which made her service a war risk, but at that time and place no enemy attack was in progress or imminent. Even if we pass all this and assume the ship always to have been in potential danger and in need of defense, this seaman at the time of his injury had taken leave of her and he is in no position to claim that he was a sacrifice to her salvation. Far from helping to man the ship at the moment, he was unable to find her; he was lost ashore and not able adequately to take care of himself. However patriotic his motive in enlisting in the service and however ready he may have been to risk himself for his country, we can find no rational basis for awarding lifetime maintenance against the ship on the theory that he was wounded or maimed while defending her against enemies. It is claimed, however, even if the basis for a lifetime award does not exist, that he is entitled to maintenance and cure beyond the period allowed by the courts below. This is based largely upon statements in the opinion of the Court in Calmar Steamship Corp. v. Taylor, 303 U.S. 525. There the question as stated by the Court was whether the duty of a shipowner to provide maintenance and cure for a seaman falling ill of an incurable disease while in its employ, extends to the payment of a lump-sum award sufficient to defray the cost of maintenance and cure for the remainder of his life. The Court laid aside cases where incapacity is caused by the employment and said, We can find no basis for saying that, if the disease proves to be incurable, the duty extends beyond a fair time after the voyage in which to effect such improvement in the seaman's condition as reasonably may be expected to result from nursing, care, and medical treatment. This would satisfy such demands of policy as underline the imposition of the obligation. Beyond this we think there is no duty, at least where the illness is not caused by the seaman's service. It is claimed that when the Court reserved or disclaimed any judgment as to cases where the incapacity is caused by the employment or by the seaman's service it recognized or created such cases as a separate class for a different measure of maintenance and cure. We think no such distinction exists or was premised in the Calmar case. In Aguilar v. Standard Oil Co., 318 U.S. 724, the Court pointed out that logically and historically the duty of maintenance and cure derives from a seaman's dependence on his ship, not from his individual deserts, and arises from his disability, not from anyone's fault. We there refused to look to the personal nature of the seaman's activity at the moment of injury to determine his right to award. Aside from gross misconduct or insubordination, what the seaman is doing and why and how he sustains injury does not affect his right to maintenance and cure, however decisive it may be as to claims for indemnity or for damages for negligence. He must, of course, at the time be in the service of the ship, by which is meant that he must be generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders. It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct whose wrongful quality even simple men of the calling would recognize — insubordination, disobedience to orders, and gross misconduct. On the other hand, the master knew he must maintain and care for even the erring and careless seaman, much as a parent would a child. For any purpose to introduce a graduation of rights and duties based on some relative proximity of the activity at time of injury to the employment or the service of the ship, would alter the basis and be out of harmony with the spirit and function of the doctrine and would open the door to the litigiousness which has made the landman's remedy so often a promise to the ear to be broken to the hope. Nor is it at all clear to us what this particular litigant could gain from introduction of the distinction for which contention is made. If we should concede that larger measure of maintenance is due those whose injury is caused by the nature of their employment, it would seem farfetched to hold it applicable here. Claimant was disobedient to his orders and for his personal purposes overstayed his shore leave. His fall into a drydock that was sufficiently lighted for workmen to be carrying on repairs to a ship therein was due to no negligence but his own. These matters have not been invoked to forfeit or reduce his usual seaman's right, but it is difficult to see how such circumstances would warrant enlargement of it. We hold that he is entitled to the usual measure of maintenance and cure at the ship's expense, no less and no more, and turn to ascertainment of its bounds. The law of the sea is in a peculiar sense an international law, but application of its specific rules depends upon acceptance by the United States. The problem of the sick or injured seaman has concerned every maritime country and, in 1936, the General Conference of the International Labor Organization at Geneva submitted a draft convention to the United States and other states. It was ratified by the Senate and was proclaimed by the President as effective for the United States on October 29, 1939. 54 Stat. 1693. Article 4, paragraph 1, thereof, provides: The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character. While enactment of this general rule by Congress would seem controlling, it is not amiss to point out that the limitation thus imposed was in accordance with the understanding of those familiar with the laws of the sea and sympathetic with the seaman's problems. The Department of Labor issued a summary of the Convention containing the following on this subject: The shipowner is required to furnish medical care and maintenance, including board and lodging, until the disabled person has been cured or the disability has been declared permanent. Robinson, Admiralty, p. 300. Representatives of the organized seamen have recognized and advised Congress of this traditional limitation on maintenance and cure. When Congress has had under consideration substitution of a system of workmen's compensation on the principles of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950, organized seamen, as we have heretofore noted, have steadfastly opposed the change. Hust v. Moore-McCormack Lines, 328 U.S. 707, 715. In doing so the legal representative of one maritime union advised the Committee on Merchant Marine of the House of Representatives that maintenance extended during (a) the period that a seaman receives treatment at a hospital either as an in-patient or an out-patient; and (b) during a period of convalescence, and until the maximum cure is obtained. [1] Another representative, after defining it to include hospitalization said. In addition a seaman is entitled to recover maintenance while outside of the hospital until his physical condition becomes fixed. [2] That the duty of the ship to maintain and care for the seaman after the end of the voyage only until he was so far cured as possible, seems to have been the doctrine of the American admiralty courts prior to the adoption of the Convention by Congress, [3] despite occasional ambiguity of language or reservation as to possible situations not before the court. It has been the rule of admiralty courts since the Convention. [4] Maintenance and cure is not the only recourse of the injured seaman. In an appropriate case he may obtain indemnity or compensation for injury due to negligence or unseaworthiness and may recover, by trial before court and jury, damages for partial or total disability. But maintenance and cure is more certain if more limited in its benefits. It does not hold a ship to permanent liability for a pension, neither does it give a lump-sum payment to offset disability based on some conception of expectancy of life. Indeed the custom of providing maintenance and cure in kind and concurrently with its need has had the advantage of removing its benefits from danger of being wasted by the proverbial improvidence of its beneficiaries. The Government does not contend that if Farrell receives future treatment of a curative nature he may not recover in a new proceeding the amount expended for such treatment and for maintenance while receiving it. The need of this seaman for permanent help is great and his plight most unfortunate. But as the evidence has afforded no basis for supplying that need by finding negligence, neither does the case afford a basis for distortion of the doctrine of maintenance and cure. This seaman was in the service of the United States and extraordinary measures of relief while not impossible are not properly addressed to the courts.",maintenance and cure.
+184,104651,1,2,"The two courts below have held the petitioner entitled to wages until the completion of the voyage at the port of New York on March 28, 1944. The petitioner contends that he has a right to wages for twelve months from December 16, 1943, the date he joined the vessel. The articles of the Haviland, signed by petitioner, were on a printed form which left a vacant space subject to the following footnote: Here the voyage is to be described, and the places named at which the ship is to touch; or, if that cannot be done, the general nature and probable length of the voyage is to be stated, and the port or country at which the voyage is to terminate. The Haviland's articles, for security reasons during the war, did not describe the voyage in such terms but provided, from the Port of Philadelphia, to A point in the Atlantic Ocean to the eastward of Phila. and thence to such ports and places in any part of the world as the Master may direct or as may be ordered or directed by the United States Government or any department, commission or agency thereof . . . and back to a final port of discharge in the United States, for a term of time not exceeding 12 (Twelve) calendar months. It is not questioned that the general custom in ships, other than the coastwise trade, is to sign on for a voyage rather than for a fixed period. But it is contended that the last clause of this contract obligated the petitioner to serve for twelve calendar months, irrespective of the termination of the voyage, and therefore gave him the right to wages for a similar period. The contract is not an uncommon form and complied with war-time requirements as to voyage contracts. [5] We think, in the light of the custom of the industry and the condition of the times, there is nothing ambiguous about it and that it obligated the petitioner only for the voyage on which the ship was engaged when he signed on and that, when it terminated at a port of discharge in the United States, he could not have been required to reimbark for a second voyage. The twelve-month period appears as a limitation upon the duration of the voyage and not as a stated period of employment. We think the court below made no error in determining the wages. For the reasons set forth, the judgment is Affirmed.",wages.
+185,105930,1,2,"Since 1941 the industrial security program has been in operation under express directives from the President. Within a week after the attack on Pearl Harbor, President Roosevelt issued Exec. Order No. 8972, 6 Fed. Reg. 6420, Dec. 12, 1941, which authorized both the Secretary of War and the Secretary of the Navy to establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury and destruction national-defense material, national-defense premises, and national-defense utilities, . . . (Emphasis added.) In 1942, under the authority of that Executive Order, the Secretary of War undertook the formulation and execution of a program of industrial security. [6] The procedures in operation from 1942 and 1943 are outlined in a 1946 publication of the Department of War entitled Suspension of Subversives from Privately Operated Facilities of Importance to the Security of the Nation's Army and Navy Programs. [7] Interestingly enough, the instructions were issued in time of peace, did not give the suspect a hearing, and were signed by the then Chief of Staff— now President—Dwight D. Eisenhower. In 1947, the National Security Act, 61 Stat. 495, effected a reorganization of the military departments and placed the Secretary of Defense at the head of the National Military Establishment. Section 305 (a) of the Act transferred to the new organization [a]ll laws, orders, regulations, and other actions applicable with respect to any function . . . transferred under this Act . . . . Section 213 created a Munitions Board within the military establishment and under the supervision of the Secretary of Defense. Among its functions were (1) to coordinate the appropriate activities within the National Military Establishment with regard to industrial matters, including procurement . . . plans . . . ; (2) to plan for the military aspects of industrial mobilization; . . . and (10) to perform such other duties as the Secretary of Defense may direct. [8] In his first report to the President in 1948, Secretary of Defense Forrestal reported that: . . . the Munitions Board is responsible for necessary action to coordinate internal security within the National Military Establishment with regard to industrial matters. This work is being planned and in some phases carried forward by the following programs: .....  c. Development of plans and directives to protect classified armed forces information in the hands of industry from potential enemies;  d. Establishment of uniform methods of handling of personnel clearances and secrecy agreements . . . . First Report of the Secretary of Defense (1948) 102-103. The forerunner of the exact program now in effect was put in operation in 1948 under the supervision of that Board. And, in the Annual Report to the President, in 1949, the Secretary, then Louis Johnson, reported that  Industrial Security. —A program to coordinate and develop uniform practices to protect classified military information placed in the hands of industry under procurement and research contracts was continued by the Munitions Board. Criteria were developed for the granting or denial of personnel and facility clearances in the performance of classified contracts. Work was started to establish a central security clearance register to centralize clearance data for ready reference by all departments and to prevent duplication in making clearance investigations. A joint Personnel Security Board administers this program, and the Industrial Employment Review Board hears appeals from security clearance denials. Second Report of the Secretary of Defense, for the Fiscal Year 1949 (1950), 85. Transmitted with that report to the President was the Annual Report of the Secretary of the Army, where the number of security cases processed by the Army-Navy-Air Force Personnel Board, and the number of appeals handled by the Industrial Employment Review Board were detailed. [9] Again in 1950 the Secretary of Defense informed the President, in a report required by law, of the status of the industrial security program. In the past 6 months, the Munitions Board activated the Industrial Employment Review Board, established procedures under which the latter will operate, and developed a set of uniform criteria stipulating the circumstances under which security clearances will be denied. The Munitions Board also established a Central Index Security Clearance File to serve as a clearing house for all individual and facility clearances and denials, [and] developed a standard security requirements check list . . . . Uniform standards for security investigations of facility and contractors' personnel are being developed. . . . A standard military security agreement is being coordinated to bind potential suppliers to security regulations before a classified contract is awarded, and a manual to give security guidance to industry is being prepared. Semiannual Report of the Secretary of Defense, July 1 to Dec. 31, 1949 (1950), 97. The President, in 1953, in Reorganization Plan No. 6, 67 Stat. 638, transferred all of the functions of the Munitions Board to the Secretary of Defense and dissolved that Board. Since then the program has been in operation under the authority of the Secretary. Also in 1953, the President issued Exec. Order No. 10450, Apr. 27, 1953, 18 Fed. Reg. 2489, 3 CFR (1949-1953 Comp.), p. 936. That order dealt with the criteria and procedures to be used in the Federal Loyalty Security Program, which had been instituted under Exec. Order No. 9835, 12 Fed. Reg. 1935, 3 CFR (1943-1948 Comp.), p. 630, Mar. 21, 1947. The latter order made clear that federal employees suspected of disloyalty had no right of confrontation. [10] And the regulations promulgated under the order provided no such right. See 13 Fed. Reg. 9365, 5 CFR (1949), § 210, Dec. 31, 1948. These procedures were revised under Exec. Order No. 10450, supra, although again, confrontation and cross-examination were not provided. See 19 Fed. Reg. 1503, 32 CFR, p. 288, Mar. 19, 1954. Thus, it was clear that the President had not contemplated that there would be a right of confrontation in the Federal Loyalty Security Program. And the report of the Secretary of the Army—transmitted to the President by the Secretary of Defense—made clear that the criteria of Exec. Order No. 10450 were being utilized not only where the loyalty of a government employee was in doubt, but also in carrying out the industrial security program. Semiannual Report of the Secretary of the Army, Jan. 1, 1954, to June 30, 1954, 135-136. Thus we see that the program has for 18 years been carried on under the express authority of the President, and has been regularly reported to him by his highest Cabinet officers. How the Court can say, despite these facts, that the President has not sufficiently authorized the program is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand. Furthermore, I think Congress has sufficiently authorized the program, as it has been kept fully aware of its development and has appropriated money to support it. During the formative period of the program, 1949-1951, the Congress, through appropriation hearings, was kept fully informed as to the activity. In 1949 D. F. Carpenter, Chairman of the Munitions Board, appeared before a Subcommittee of the House Committee on Appropriations to testify concerning the requested appropriation for the Board. While the report indicates much of the testimony was off the record, it does contain specific references to the program here under attack. [11] Significantly the appropriation bill for 1950 included an item of $11,300,000 for the maintenance, inter alia, of the Board. Again, in 1950 General Timberlake, a member of the Board, testified: Then we are going to intensify the industrial mobilization planning within the Department of Defense, with particular emphasis on industrial security . . . . House of Representatives, Hearings before a Subcommittee of the Committee on Appropriations on the Supplemental Appropriation for 1951, 81st Cong., 2d Sess. 264. While, again, some of the testimony was off the record it was sufficiently urgent and detailed for the Congress to appropriate additional funds for the Board for 1951. [12] By the 1953 Reorganization Plan, the functions of the Munitions Board were transferred to various Assistant Secretaries of Defense. The industrial security program was put under the Assistant Secretary of Defense for Manpower, Personnel, and Reserve Forces. Of course, this office received an appropriation each year. These hearings, to cite but two, certainly indicate an awareness on the part of Congress of the existence of the industrial security program, and the continued appropriations hardly bespeak an unwillingness on the part of Congress that it be carried on. In 1955, the Eighty-fourth Congress, on the motion of Senator Wiley for unanimous consent, caused to be printed the so-called Internal Security Manual, S. Doc. No. 40, 84th Cong., 1st Sess. It is a compilation of all laws, regulations, and congressional committees relating to the national security. Contained in the volume is the Industrial Personnel security Review Regulation. i. e., a verbatim copy of the regulations set up by the Secretary of Defense on February 2, 1955. This Manual outlined in detail the hearing procedures which are here condemned by the Court. And it is important to note that the final denial of Greene's clearance was by a Board acting under these very regulations. Still not one voice was raised either within or without the Halls of Congress that the Defense Department had exceeded its authority or that contractor employees were being denied their constitutional rights. In other cases we have held that the inaction of the Congress, in circumstances much less specific than here, was a clear ratification of a program as it was then being carried out by the Executive. Why, I ask, do we not do that here where it is so vital? We should not be that blind Court . . . that does not see what `[a]ll others can see and understand . . . .'  United States v. Rumely, 345 U. S. 41, 44 (1953). While it certainly is not clear to me, I suppose that the present fastidiousness of the Court can be satisfied by the President's incorporating the present industrial security program into a specific Executive Order or the Congress' placing it on the statute books. To me this seems entirely superfluous in light of the clear authorization presently existing in the Cabinet officers. It also subjects the Government to multitudinous actions—and perhaps large damages—by reason of discharges made pursuant to the present procedures. And I might add a nota bene. Even if the Cabinet officers are given this specific direction, the opinion today, by dealing so copiously with the constitutional issues, puts a cloud over both the Employee Loyalty Program and the one here under attack. Neither requires that hearings afford confrontation or cross-examination. While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that the explicit language of its broad sweep speaks in prophecy. Let us hope that the winds may change. If they do not the present temporary debacle will turn into a rout of our internal security.",the president and the congress have granted sufficient authority to the cabinet officers.
+186,112139,1,3,"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U. S. Const., Art. II, § 2, cl. 2. The parties do not dispute that [t]he Constitution for purposes of appointment . . . divides all its officers into two classes. United States v. Germaine, 99 U. S. 508, 509 (1879). As we stated in Buckley v. Valeo, 424 U. S. 1, 132 (1976): Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. The initial question is, accordingly, whether appellant is an inferior or a principal officer. [12] If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause. The line between inferior and principal officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e. g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858) (In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the inferior officer side of that line. Several factors lead to this conclusion. First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be subordinate to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree inferior in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. § 594(f). Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is temporary in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the ideas of tenure, duration . . . and duties of the independent counsel, Germaine, supra, at 511, are sufficient to establish that appellant is an inferior officer in the constitutional sense. This conclusion is consistent with our few previous decisions that considered the question whether a particular Government official is a principal or an inferior officer. In United States v. Eaton, 169 U. S. 331 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a vice-consul during the temporary absence of the consul, terming the vice-consul a subordinate officer notwithstanding the Appointment Clause's specific reference to Consuls as principal officers. As we stated: Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions he is not thereby transformed into the superior and permanent official. Id., at 343. In Ex parte Siebold, 100 U. S. 371 (1880), the Court found that federal supervisor[s] of elections, who were charged with various duties involving oversight of local congressional elections, see id., at 379-380, were inferior officers for purposes of the Clause. In Go-Bart Importing Co. v. United States, 282 U. S. 344, 352-353 (1931), we held that United States commissioners are inferior officers. Id., at 352. These commissioners had various judicial and prosecutorial powers, including the power to arrest and imprison for trial, to issue warrants, and to institute prosecutions under laws relating to the elective franchise and civil rights. Id., at 353, n. 2. All of this is consistent with our reference in United States v. Nixon, 418 U. S. 683, 694, 696 (1974), to the office of Watergate Special Prosecutor — whose authority was similar to that of appellant, see id., at 694, n. 8 — as a subordinate officer. This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an inferior officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of interbranch appointments, in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments. On its face, the language of this excepting clause admits of no limitation on interbranch appointments. Indeed, the inclusion of as they think proper seems clearly to give Congress significant discretion to determine whether it is proper to vest the appointment of, for example, executive officials in the courts of Law. We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra , where we stated: It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. . . . But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise. Id., at 397-398. Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed. 100 U. S., at 398. Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause. We also note that the history of the Clause provides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts to transfer the appointment power to the President were rejected. See 2 id., at 42-44, 80-83. The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to appoint officers in all cases not otherwise provided for by this Constitution. Id., at 183, 185. This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the [United States], whose appointments are not otherwise herein provided for. Id., at 498-499. After the addition of Consuls to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style. See id., at 599. It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, § 2. Id., at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in Superior Officers below Heads of Departments. The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that some such provision [was] too necessary, to be omitted. This time the proposal was adopted. Id., at 627-628. As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power. We do not mean to say that Congress' power to provide for interbranch appointments of inferior officers is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some incongruity between the functions normally performed by the courts and the performance of their duty to appoint. 100 U. S., at 398 ([T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals' conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers. [13] We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987). In Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id., at 353, n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are executive officer[s], would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, see United States v. Solomon, 216 F. Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28 U. S. C. § 546(d) (1982 ed., Supp. V). [14] Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U. S. C. § 49(f) (1982 ed., Supp. V), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on incongruous interbranch appointments.",The Appointments Clause of Article II reads as follows:
+187,109865,2,1,"Petitioner challenges that part of the jury instruction which read: In determining community standards, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life. (Emphasis added.) The Court of Appeals concluded that the inclusion of children was unnecessary and that it would prefer that children be excluded from the court's [jury] instruction until the Supreme Court clearly indicates that inclusion is proper. 551 F. 2d, at 1158. It correctly noted that this Court had been ambivalent on this point, having sustained the conviction in Roth, supra, where the instruction included children, and having intimated later in Ginzburg v. United States, 383 U. S. 463, 465 n. 3 (1966), that it did not necessarily approve the inclusion of children as part of the community instruction. [3] Reviewing the charge as a whole under the traditional standard of review, cogent arguments can be made that the inclusion of children was harmless error, see Hamling v. United States, 418 U. S. 87, 107 (1974); however, the courts, the bar, and the public are entitled to greater clarity than is offered by the ambiguous comment in Ginzburg on this score. Since this is a federal prosecution under an Act of Congress, we elect to take this occasion to make clear that children are not to be included for these purposes as part of the community as that term relates to the obscene materials proscribed by 18 U. S. C. § 1461 (1976 ed.). Cf. Cupp v. Naughten, 414 U. S. 141, 146 (1973). Earlier in the same Term in which Roth was decided, the Court had reversed a conviction under a state statute which made criminal the dissemination of a book found to have a potentially deleterious influence on youth. Butler v. Michigan, 352 U. S. 380, 383 (1957). The statute was invalidated because its incidence . . . is to reduce the adult population . . . to reading only what is fit for children. Ibid. The instruction given here, when read as a whole, did not have an effect so drastic as the Butler statute. But it may well be that a jury conscientiously striving to define the relevant community of persons, the average person, Smith v. United States, 431 U. S. 291, 304 (1977), by whose standards obscenity is to be judged, would reach a much lower average when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Cf. Ginsberg v. New York, 390 U. S. 629 (1968). There was no evidence that children were the intended recipients of the materials at issue here, or that petitioner had reason to know children were likely to receive the materials. Indeed, an affirmative representation was made that children were not involved in this case. [4] We therefore conclude it was error to instruct the jury that they were a part of the relevant community, and accordingly the conviction cannot stand.",Instruction as to Children
+188,109865,2,2,"It does not follow, however, as petitioner contends, that the inclusion of sensitive persons in the charge advising the jury of whom the community consists was error. The District Court's charge was: Thus the brochures, magazines and film are not to be judged on the basis of your personal opinion. Nor are they to be judged by their effect on a particularly sensitive or insensitive person or group in the community. You are to judge these materials by the standard of the hypothetical average person in the community, but in determining this average standard you must include the sensitive and the insensitive, in other words, you must include everyone in the community. (Emphasis added.) Petitioner's reliance on passages from Miller, 413 U. S., at 33, and Smith v. United States, supra, at 304, for the proposition that inclusion of sensitive persons in the relevant community was error is misplaced. In Miller we said, [T]he primary concern with requiring a jury to apply the standard of `the average person, applying contemporary community standards' is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one. See Roth v. United States, supra, at 489. This statement was essentially repeated in Smith: [T]he Court has held that § 1461 embodies a requirement that local rather than national standards should be applied. Hamling v. United States, supra . Similarly, obscenity is to be judged according to the average person in the community, rather than the most prudish or the most tolerant. Hamling v. United States, supra ; Miller v. California, supra ; Roth v. United States, 354 U. S. 476 (1957). Both of these substantive limitations are passed on to the jury in the form of instructions. (Footnote omitted.) The point of these passages was to emphasize what was an issue central to Roth, that judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. 354 U. S., at 489. [5] But nothing in those opinions suggests that sensitive and insensitive persons, however defined, are to be excluded from the community as a whole for the purpose of deciding if materials are obscene. In the narrow and limited context of this case, the community includes all adults who constitute it, and a jury can consider them all in determining relevant community standards. The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of materials, not in including them along with all others in the community. See Mishkin v. New York, 383 U. S. 502, 508-509 (1966). Petitioner relies also on Hamling v. United States, 418 U. S. 87 (1974), to support his argument. Like Miller and Smith, supra, though, Hamling merely restated the by now familiar rule that jurors are not to base their decision about the materials on their personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. 418 U. S., at 107. It is clear the trial court did not instruct the jury to focus on sensitive persons or groups. It explicitly said the jury should not use sensitive persons as a standard, and emphasized that in determining the average person standard the jury must include the sensitive and the insensitive, in other words . . . everyone in the community. The difficulty of framing charges in this area is well recognized. But the term average person as used in this charge means what it usually means, and is no less clear than reasonable person used for generations in other contexts. Cf. Hamling v. United States, supra, at 104-105. Cautionary instructions to avoid subjective personal and private views in determining community standards can do no more than tell the individual juror that in evaluating the hypothetical average person he is to determine the collective view of the community, as best as it can be done. Simon E. Sobeloff, then Solicitor General, later Chief Judge of the United States Court of Appeals for the Fourth Circuit, very aptly stated the dilemma: Is the so-called definition of negligence really a definition? What could be fuzzier than the instruction to the jury that negligence is a failure to observe that care which would be observed by a `reasonable man'—a chimerical creature conjured up to give an aura of definiteness where definiteness is not possible. . . . Every man is likely to think of himself as the happy exemplification of `the reasonable man'; and so the standard he adopts in order to fulfill the law's prescription will resemble himself, or what he thinks he is, or what he thinks he should be, even if he is not. All these shifts and variations of his personal norm will find reflection in the verdict. The whole business is necessarily equivocal. This we recognize, but we are reconciled to the impossibility of discovering any form of words that will ring with perfect clarity and be automatically self-executing. Alas, there is no magic push-button in this or in other branches of the law. (Emphasis added.) [6] However one defines sensitive or insensitive persons, they are part of the community. The contention that the instruction was erroneous because it included sensitive persons is therefore without merit.",Instruction as to Sensitive Persons
+189,109865,2,3,"Challenge is made to the inclusion of members of a deviant sexual group in the charge which recited: The first test to be applied, in determining whether a given picture is obscene, is whether the predominant theme or purpose of the picture, when viewed as a whole and not part by part, and when considered in relation to the intended and probable recipients, is an appeal to the prurient interest of the average person of the community as a whole or the prurient interest of members of a deviant sexual group at the time of mailing. . . . . . In applying this test, the question involved is not how the picture now impresses the individual juror, but rather, considering the intended and probable recipients, how the picture would have impressed the average person, or a member of a deviant sexual group at the time they received the picture. Examination of some of the materials could lead to the reasonable conclusion that their prurient appeal would be more acute to persons of deviant persuasions, but it is equally clear they were intended to arouse the prurient interest of any reader or observer. Nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. See Hamling v. United States, supra, at 128-130. Many of the exhibits depicted aberrant sexual activities. These depictions were generally provided along with or as a part of the materials which apparently were thought likely to appeal to the prurient interest in sex of nondeviant persons. One of the mailings even provided a list of deviant sexual groups which the recipient was asked to mark to indicate interest in receiving the type of materials thought appealing to that particular group. Whether materials are obscene generally can be decided by viewing them; expert testimony is not necessary. Ginzburg v. United States, 383 U. S., at 465; Hamling v. United States, supra, at 100; see Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (STEWART, J., concurring). But petitioner claims that to support an instruction on appeal to the prurient interest of deviants, the prosecution must come forward with evidence to guide the jury in its deliberations, since jurors cannot be presumed to know the reaction of such groups to stimuli as they would that of the average person. Concededly, in the past we have reserve[d] judgment . . . on the extreme case . . . where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the [particular] prurient interest. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 56 n. 6 (1973). But here we are not presented with that extreme case because the Government did in fact present expert testimony on rebuttal which, when combined with the exhibits themselves, sufficiently guided the jury. This instruction, therefore, was acceptable.",Instruction as to Deviant Groups
+190,109865,2,4,"Pandering is the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. Ginzburg v. United States, supra, at 467, citing Roth v. United States, 354 U. S., at 495-496 (Warren, C. J., concurring). We have held, and reaffirmed, that to aid a jury in its determination of whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. Splawn v. California, 431 U. S. 595, 598 (1977); Hamling v. United States, 418 U. S., at 130. In essence, the Court has considered motivation relevant to the ultimate evaluation if the prosecution offers evidence of motivation. In this case the trial judge gave a pandering instruction to which the jury could advert if it found this to be a close case under the three part Roth-Memoirs test. This was not a so-called finding instruction which removed the jury's discretion; rather it permitted the jury to consider the touting descriptions along with the materials themselves to determine whether they were intended to appeal to the recipient's prurient interest in sex, whether they were commercial exploitation of erotica solely for the sake of their prurient appeal, Ginzburg, supra, at 466, if indeed the evidence admitted of any other purpose. And while it is true the Government offered no extensive evidence of the methods of production, editorial goals, if any, methods of operation, or means of delivery other than the mailings and the names, locations, and occupations of the recipients, the evidence was sufficient to trigger the Ginzburg pandering instruction.",Instruction as to Pandering
+191,109865,2,5,"At trial petitioner proffered, and the trial judge rejected, two films which were said to have had considerable popular and commercial success when displayed in Los Angeles and elsewhere around the country. He proffered this assertedly comparable material as evidence that materials as explicit as his had secured community tolerance. Apparently the theory was that display of such movies had altered the level of community tolerance. On appeal the Court of Appeals began an inquiry into whether the comparison evidence should have been admitted. It held that exclusion of the evidence was proper as to the printed materials; but it abandoned the inquiry when, in reliance on the so-called concurrent-sentence doctrine, it concluded that even if the comparison evidence had been improperly excluded as to the count involving petitioner's film, the sentence would not be affected. It therefore exercised its discretion not to pass on the admissibility of the comparison evidence and hence did not review the conviction on the film count. [7] However, the sentences on the 11 counts were not in fact fully concurrent; petitioner's 11 prison terms of four years each were concurrent but the $500 fines on each of the counts were cumulative, totaling $5,500, so that a separate fine of $500 was imposed on the film count. Petitioner thus had at least a pecuniary interest in securing review of his conviction on each of the counts. In light of our disposition of the case the issue of admissibility of the comparison evidence is not before us, and we leave it to the Court of Appeals to decide whether or to what extent such evidence is relevant to a jury's evaluation of community standards. Accordingly, the case is remanded to the Court of Appeals for further consideration consistent with this opinion. Reversed and remanded.",Exclusion of Comparison Evidence
+192,110041,1,1,"Free collective bargaining is the cornerstone of the structure of labor-management relations carefully designed by Congress when it enacted the NLRA. Of the numerous actions that labor or management may take during collective bargaining to bring economic pressure to bear in support of their respective demands, the NLRA protects or prohibits only some. The availability and usefulness of many others depend entirely upon the relative economic strength of the parties. [1] What Congress left unregulated is as important as the regulations that it imposed. It sought to leave labor and management essentially free to bargain for an agreement to govern their relationship. [2] Congress also intended, by its limited regulation, to establish a fair balance of bargaining power. That balance, once established, obviates the need for substantive regulation of the fairness of collective-bargaining agreements: whatever agreement emerges from bargaining between fairly matched parties is acceptable. [3] Thus, the NLRA's regulations not only are limited in scope but also must be viewed as carefully chosen to create the congressionally desired balance in the bargaining relationship. As the Court observed in Motor Coach Employees v. Lockridge, 403 U. S. 274, 286 (1971), the primary impetus for enactment of a comprehensive national labor law was the need to stabilize labor relations by equitably and delicately structuring the balance of power among competing forces so as to further the common good. [4] Because the NLRA's limits represent a clear congressional choice with respect to the freedom and fairness of the bargaining process, the Court has been alert to prevent interference with collective bargaining that is unwarranted by the NLRA. For example, in NLRB v. Insurance Agents, 361 U. S. 477 (1960), the Court rejected the conclusion of the National Labor Relations Board (Board) that certain on-the-job conduct undertaken by employees to support their bargaining demands was inconsistent with the union's duty to bargain in good faith. The Court, noting that the NLRA did not prohibit such actions, id., at 498, concluded that allowing the Board to regulate the availability of such economic weapons would intrude on the area deliberately left unregulated by Congress. [5] The Court employed the same analysis in reversing the Board's determination that the NLRA was violated by a lockout conducted to bring economic pressure to bear in support of the employer's bargaining position. American Ship Building Co. v. NLRB, 380 U. S. 300, 308 (1965). It rejected the Board's suggestion that, in enforcing the employer's duty to bargain in good faith, the Board could deny to the employer the use of certain economic weapons not otherwise proscribed by § 8. While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. . . . Having protected employee organization in countervailance to the employers' bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. [The NLRA does] not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party's bargaining power. 380 U. S., at 316-317. The States have no more authority than the Board to upset the balance that Congress has struck between labor and management in the collective-bargaining relationship. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits. Garner v. Teamsters, 346 U. S. 485, 500 (1953). In Teamsters v. Morton, 377 U. S. 252, 259-260 (1964), the Court held that a state law allowing damages for peaceful secondary picketing was pre-empted because the inevitable result [of its application] would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. Id., at 259-260. The Court followed the same approach in Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976), where it held pre-empted a state law under which the union had been enjoined from a concerted refusal to work overtime. Its prior decisions, the Court concluded, indicated that such activities, whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board is `afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful.'  Id., at 149, quoting NLRB v. Insurance Agents, supra, at 498.",The Policy of Free Collective Bargaining
+193,110041,1,2,"The plurality's opinion, after acknowledging that the payment of benefits financed ultimately by the employer was a substantial factor in the employees' decision to strike and remain on strike, ante, at 525, further concedes—as it must— that the New York law has altered the economic balance between management and labor. Ante, at 532. During the strike out of which the present controversy arose, the petitioners' employees collected more than $49 million in unemployment compensation. All but a small fraction of these benefits were paid from the petitioners' accounts in the New York unemployment insurance fund; because of these payments, the petitioners' tax rates were increased in subsequent periods. [6] The challenged provisions of the New York statute thus had a twofold impact on the bargaining process ( ante, at 526 n. 5, 531-532): they substantially cushioned the economic impact of the lengthy strike on the striking employees, and also made the strike more expensive for the employers. [7] Nothing in the NLRA or its legislative history indicates that Congress intended unemployment compensation for strikers, let alone employer financing of such compensation, to be part of the legal structure of collective bargaining. [8] The New York law therefore alters significantly the bargaining balance prescribed by Congress in that law. The decision upholding it cannot be squared with Morton and Machinists, where far less intrusive state statutes were invalidated because they upset the balance of power between labor and management expressed in our national labor policy. Morton, 377 U. S., at 260. [9] The plurality's opinion seeks to avoid this conclusion by ignoring the fact that the petitioners are not challenging the entire New York unemployment compensation law but only that portion of it that provides for benefits for striking employees. Although the plurality characterizes the State's unemployment compensation law as a law of general applicability that implement[s] a broad state policy that does not primarily concern labor-management relations, ante, at 533, 534, this description bears no relation to reality when applied to the challenged provisions of the law. Those provisions are of general applicability only if that term means—contrary to what the plurality itself says—generally applicable only to labor-management relations. It would be difficult to think of a law more specifically focused on labor-management relations than one that compels an employer to finance a strike against itself. [10] Even if the challenged portion of the New York statute properly could be viewed as part of a law of general applicability, this generality of the law would have little or nothing to do with whether it is pre-empted by the NLRA. A state law with purposes and applications beyond the area of industrial relations nonetheless may impinge upon congressional policy when it is applied to the collective-bargaining relationship. [11] The Court has recognized accordingly that pre-emption must turn not on the generality of purpose or applicability of a state law but on the effect of that law when applied in the context of labor-management relations. The crucial inquiry regarding pre-emption is whether the application of the state law in question  `would frustrate effective implementation of the [NLRA's] processes.'  Machinists, 427 U. S., at 147-148, quoting Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 380 (1969). As the Court stated in Farmer v. Carpenters, 430 U. S. 290, 300 (1977): [I]t is well settled that the general applicability of a state cause of action is not sufficient to exempt it from pre-emption. `[I]t [has not] mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations.' Garmon, 359 U. S., at 244. Instead, the cases reflect a balanced inquiry into such factors as the nature of the federal and state interests in regulation and the potential for interference with federal regulation. (Footnote omitted.) Accord, Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180, 193, and n. 22 (1978). It is self-evident that the potential [of the New York law] for interference ( Morton, supra, at 260) with the federally protected economic balance between management and labor is direct and substantial. [12] The Court has identified several categories of state laws whose application is unlikely to interfere with federal regulatory policy under the NLRA. Farmer v. Carpenters, supra, at 296-297. Mr. Justice Frankfurter described one of these categories in broad terms in San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243-244 (1959): [States retain authority to regulate] where the regulated conduct touche[s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act. The plurality, attempting to draw support from the foregoing generalization, mistakenly treats New York's requirement that employers pay benefits to striking employees as state action deeply rooted in local feeling and responsibility. [13] But the broad language from Garmon has been applied only to a narrow class of cases. In Garmon, Mr. Justice Frankfurter identified, as typical of the kind of state law that would not be pre-empted, the traditional law of torts. Id., at 247; cf. id., at 244 n. 2. The Court has adhered to this understanding of the local feeling and responsibility exception formulated in Garmon. See Machinists, 427 U. S., at 136, and n. 2 (Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States); id., at 151 n. 13; Farmer v. Carpenters, supra, at 296-300; cf. Sears, supra, at 194-197. The provisions of the New York law at issue here have nothing in common with the state laws protecting against personal torts or violence to property that have defined the local feeling and responsibility exception to pre-emption.",Free Collective Bargaining and the New York Statute
+194,110041,1,3,"The challenged provisions of the New York law cannot, consistently with prior decisions of this Court, be brought within the local feeling and responsibility exception to the pre-emption doctrine. The principles of Morton and Machinists therefore require pre-emption in this case unless in some other law Congress has modified the policy of the NLRA. The plurality, acknowledging the need to look beyond the NLRA to support its conclusion, relies primarily on the Social Security Act. In that Act, adopted only five weeks after the passage of the NLRA, it finds an indication that Congress did intend that the States be free to make unemployment compensation payments part of the collective-bargaining relationship structured by the NLRA. But it is extremely unlikely that little over a month after enacting a detailed and carefully designed statute to structure industrial relations, the Congress would alter so dramatically the balance struck in that law. It would be even more remarkable if such a change were made, as the plurality suggests, without any explicit statutory expression, and indeed absent any congressional discussion whatever of the problem. The Social Security Act, as the plurality acknowledges, ante, at 540, is silent on the question, neither authorizing the States to provide unemployment compensation for strikers nor prohibiting the States from making such aid available. Congress did explicitly forbid the States to condition unemployment compensation benefits upon acceptance of work as strikebreakers, or membership in a company union, or nonmembership in any labor union, [14] thereby indicating an intention to prohibit interference with the collective-bargaining balance struck in the NLRA. Nor does the legislative history of the Social Security Act reflect any congressional intention to allow unemployment compensation for strikers. [15] Senator Wagner, a sponsor of the proposed legislation, made no reference to any such feature of the Social Security Act in his remarks to the Senate Finance Committee. Hearings on S. 1130 before the Senate Committee on Finance, 74th Cong., 1st Sess., 1-30 (1935). [16] Although the suggestion that the Act should contain an explicit prohibition of unemployment compensation to strikers was included in several written submissions to the Senate Committee, there is no evidence whatever that the Committee considered the suggestion. [17] Indeed, it is clear that the problem never received congressional attention, for the subject is mentioned nowhere in the Committee Reports or the congressional debates on the Social Security Act. H. R. Rep. No. 615, 74th Cong., 1st Sess. (1935); S. Rep. No. 628, 74th Cong., 1st Sess. (1935); 79 Cong. Rec. 5467-5478, 5528-5563, 5579-5606, 5678-5715, 5768, 5771-5817, 5856-5909, 5948-5994, 6037-6068, 9191, 9267-9273, 9282-9297, 9351-9362, 9366, 9418-9438, 9440, 9510-9543, 9625-9650, 11320-11343 (1935). [18] Faced with the absence of any specific indications in the Social Security Act or its legislative history that Congress intended for the States to have the authority to upset the NLRA's collective-bargaining relationship by paying compensation to strikers, the plurality relies on the general policy embodied in the Social Security Act of leaving to the States the determination of eligibility requirements for compensation. Ante, at 537-538, 542, and n. 42. [19] That policy supports the narrow interpretation of the few conditions on eligibility imposed on the States by the Social Security Act itself. Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471, 475 n. 3, 482-489 (1977). But there is no indication in that Act or its legislative history that Congress thought that this general policy relieved the States of constraints imposed by other federal statutes such as the NLRA. [20] In particular, it would be difficult indeed to infer from this feature of the Act that Congress intended to leave the States free to require employers to fund unemployment compensation for their striking employees without regard to the effect on the bargaining relationship structured by the NLRA. The plurality holds, nonetheless, that New York may require employers to pay unemployment compensation to strikers amounting to some 50% of their average wage. Nothing in the plurality's opinion, moreover, limits such compensation to 50% of average wages, for the plurality indicates that the Social Security Act gives the States complete control over this aspect of their unemployment compensation programs. Accordingly, New York and other States are free not only to increase compensation to 100% but also to eliminate the waiting period now imposed on striking employees. [21] The plurality's sweeping view of the Act thus lays open the way for any State to undermine completely the collective-bargaining process within its borders. A much more cautious approach to implied amendments of the NLRA is required if the Court is to give proper effect to the legislative judgments of the Congress. Having once resolved the balance to be struck in the collective-bargaining relationship, and having embodied that balance in the NLRA, Congress should not be expected by the Court to reaffirm the balance explicitly each time it later enacts legislation that may touch in some way on the collective-bargaining relationship. Absent explicit modification of the NLRA, or clear inconsistency between the terms of the NLRA and a subsequent statute, the Court should assume that Congress intended to leave the NLRA unaltered. [22] This assumption is especially appropriate in considering the intent of Congress when it enacted the Social Security Act just five weeks after completing its deliberations on the NLRA.",The Lack of Evidence of Congressional Intent to Alter the Policy of the NLRA
+195,109975,2,1,"An employee who participates in a noncontributory, compulsory pension plan by definition makes no payment into the pension fund. He only accepts employment, one of the conditions of which is eligibility for a possible benefit on retirement. Respondent contends, however, that he has invested in the Pension Fund by permitting part of his compensation from his employer to take the form of a deferred pension benefit. By allowing his employer to pay money into the Fund, and by contributing his labor to his employer in return for these payments, respondent asserts he has made the kind of investment which the Securities Acts were intended to regulate. In order to determine whether respondent invested in the Fund by accepting and remaining in covered employment, it is necessary to look at the entire transaction through which he obtained a chance to receive pension benefits. In every decision of this Court recognizing the presence of a security under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security. See Tcherepnin, supra (money paid for bank capital stock); SEC v. United Benefit Life Ins. Co., 387 U. S. 202 (1967) (portion of premium paid for variable component of mixed variable-and fixed-annuity contract); Variable Annuity Life Ins. Co., supra (premium paid for variable-annuity contract); Howey, supra (money paid for purchase, maintenance, and harvesting of orange grove); SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344 (1943) (money paid for land and oil exploration). Even in those cases where the interest acquired had intermingled security and nonsecurity aspects, the interest obtained had to a very substantial degree elements of investment contracts . . . . Variable Annuity Life Ins. Co., supra, at 91 (BRENNAN, J., concurring). In every case the purchaser gave up some tangible and definable consideration in return for an interest that had substantially the characteristics of a security. In a pension plan such as this one, by contrast, the purported investment is a relatively insignificant part of an employee's total and indivisible compensation package. No portion of an employee's compensation other than the potential pension benefits has any of the characteristics of a security, yet these noninvestment interests cannot be segregated from the possible pension benefits. Only in the most abstract sense may it be said that an employee exchanges some portion of his labor in return for these possible benefits. [12] He surrenders his labor as a whole, and in return receives a compensation package that is substantially devoid of aspects resembling a security. His decision to accept and retain covered employment may have only an attenuated relationship, if any, to perceived investment possibilities of a future pension. Looking at the economic realities, it seems clear that an employee is selling his labor primarily to obtain a livelihood, not making an investment. Respondent also argues that employer contributions on his behalf constituted his investment into the Fund. But it is inaccurate to describe these payments as having been on behalf of any employee. The trust agreement used employee man-weeks as a convenient way to measure an employer's overall obligation to the Fund, not as a means of measuring the employer's obligation to any particular employee. Indeed, there was no fixed relationship between contributions to the Fund and an employee's potential benefits. A pension plan with defined benefits, such as the Local's, does not tie a qualifying employee's benefits to the time he has worked. See n. 3, supra. One who has engaged in covered employment for 20 years will receive the same benefits as a person who has worked for 40, even though the latter has worked twice as long and induced a substantially larger employer contribution. [13] Again, it ignores the economic realities to equate employer contributions with an investment by the employee.",Investment of Money
+196,109975,2,2,"As we observed in Forman, the touchstone of the Howey test is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. 421 U. S., at 852. The Court of Appeals believed that Daniel's expectation of profit derived from the Fund's successful management and investment of its assets. To the extent pension benefits exceeded employer contributions and depended on earnings from the assets, it was thought they contained a profit element. The Fund's trustees provided the managerial efforts which produced this profit element. As in other parts of its analysis, the court below found an expectation of profit in the pension plan only by focusing on one of its less important aspects to the exclusion of its more significant elements. It is true that the Fund, like other holders of large assets, depends to some extent on earnings from its assets. In the case of a pension fund, however, a far larger portion of its income comes from employer contributions, a source in no way dependent on the efforts of the Fund's managers. The Local 705 Fund, for example, earned a total of $31 million through investment of its assets between February 1955 and January 1977. During this same period employer contributions totaled $153 million. [14] Not only does the greater share of a pension plan's income ordinarily come from new contributions, but unlike most entrepreneurs who manage other people's money, a plan usually can count on increased employer contributions, over which the plan itself has no control, to cover shortfalls in earnings. [15] The importance of asset earnings in relation to the other benefits received from employment is diminished further by the fact that where a plan has substantial preconditions to vesting, the principal barrier to an individual employee's realization of pension benefits is not the financial health of the fund. Rather, it is his own ability to meet the fund's eligibility requirements. Thus, even if it were proper to describe the benefits as a profit returned on some hypothetical investment by the employee, this profit would depend primarily on the employee's efforts to meet the vesting requirements, rather than the fund's investment success. [16] When viewed in light of the total compensation package an employee must receive in order to be eligible for pension benefits, it becomes clear that the possibility of participating in a plan's asset earnings is far too speculative and insubstantial to bring the entire transaction within the Securities Acts, Forman, 421 U. S., at 856.",Expectation of Profits From a Common Enterprise
+197,109975,2,1,"The SEC in its amicus curiae brief refers to several actions of Congress said to evidence an understanding that pension plans are securities. A close look at each instance, however, reveals only that Congress might have believed certain kinds of pension plans, radically different from the one at issue here, came within the coverage of the Securities Acts. There is no evidence that Congress at any time thought noncontributory plans similar to the one before us were subject to federal regulation as securities. The first action cited was the rejection by Congress in 1934 of an amendment to the Securities Act that would have exempted employee stock investment and stock option plans from the Act's registration requirements. [17] The amendment passed the Senate but was eliminated in conference. The legislative history of the defeated proposal indicates it was intended to cover plans under which employees contributed their own funds to a segregated investment account on which a return was realized. See H. R. Conf. Rep. No. 1838, 73d Cong., 2d Sess., 41 (1934); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., pt. 1, pp. 895-896 (1941). In rejecting the amendment, Congress revealed a concern that certain interests having the characteristics of a security not be excluded from Securities Act protection simply because investors realized their return in the form of retirement benefits. At no time, however, did Congress indicate that pension benefits in and of themselves gave a transaction the characteristics of a security. The SEC also relies on a 1970 amendment of the Securities Act which extended § 3's exemption from registration to include any interest or participation in a single or collective trust fund maintained by a bank . . . which interest or participation is issued in connection with . . . a stock bonus, pension, or profit-sharing plan which meets the requirements for qualification under section 401 of title 26, . . . § 3 (a) (2) of the Securities Act, as amended, 84 Stat. 1434, 1498, 15 U. S. C. § 77c (a) (2). It argues that in creating a registration exemption, the amendment manifested Congress' understanding that the interests covered by the amendment otherwise were subject to the Securities Acts. [18] It interprets interest or participation in a single . . . trust fund . . . issued in connection with . . . a stock bonus, pension, or profit-sharing plan as referring to a prospective beneficiary's interest in a pension fund. But this construction of the 1970 amendment ignores that measure's central purpose, which was to relieve banks and insurance companies of certain registratration obligations. The amendment recognized only that a pension plan had an interest or participation in the fund in which its assets were held, not that prospective beneficiaries of a plan had any interest in either the plan's bank-maintained assets or the plan itself. [19]",Actions of Congress
+198,109975,2,2,"The court below believed, and it now is argued to us, that almost from its inception the SEC has regarded pension plans as falling within the scope of the Securities Acts. We are asked to defer to what is seen as a longstanding interpretation of these statutes by the agency responsible for their administration. But there are limits, grounded in the language, purpose, and history of the particular statute, on how far an agency properly may go in its interpretative role. Although these limits are not always easy to discern, it is clear here that the SEC's position is neither longstanding nor even arguably within the outer limits of its authority to interpret these Acts. [20] As we have demonstrated above, the type of pension plan at issue in this case bears no resemblance to the kind of financial interests the Securities Acts were designed to regulate. Further, the SEC's present position is flatly contradicted by its past actions. Until the instant litigation arose, the public record reveals no evidence that the SEC had ever considered the Securities Acts to be applicable to noncontributory pension plans. In 1941, the SEC first articulated the position that voluntary, contributory plans had investment characteristics that rendered them securities under the Acts. At the same time, however, the SEC recognized that noncontributory plans were not covered by the Securities Acts because such plans did not involve a sale within the meaning of the statutes. Opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed. Sec. L. Serv. ¶ 75,195 (1941); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., 895, 896-897 (1941) (testimony of Commissioner Purcell). [21] In an attempt to reconcile these interpretations of the Securities Acts with its present stand, the SEC now augments its past position with two additional propositions. First, it is argued, noncontributory plans are securities even where a sale is not involved. Second, the previous concession that noncontributory plans do not involve a sale was meant to apply only to the registration and reporting requirements of the Securities Acts; for purposes of the antifraud provisions, a sale is involved. As for the first proposition, we observe that none of the SEC opinions, reports, or testimony cited to us address the question. As for the second, the record is unambiguously to the contrary. [22] Both in its 1941 statements and repeatedly since then, the SEC has declared that its no sale position applied to the Securities Acts as a whole. See opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed. Sec. L. Serv. ¶ 75,195, p. 75,387 (1941); Hearings before the House Committee on Interstate and Foreign Commerce, supra, at 888, 896-897; Institutional Investor Study Report of the Securities and Exchange Commission, H. R. Doc. No. 92-64, pt. 3, p. 996 (1971) ([T]he Securities Act does not apply . . .); Hearings before the Subcommittee on Welfare and Pension Funds of the Senate Committee on Labor and Public Welfare on Welfare and Pension Plans Investigation, 84th Cong., 1st Sess., pt. 3, pp. 943-946 (1955). Congress acted on this understanding when it proceeded to develop the legislation that became ERISA. See, e. g., Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, S. Rep. No. 92-634, p. 96 (1972) (Pension and profit-sharing plans are exempt from coverage under the Securities Act of 1933 . . . unless the plan is a voluntary contributory pension plan and invests in the securities of the employer company an amount greater than that paid into the plan by the employer) (emphasis added). As far as we are aware, at no time before this case arose did the SEC intimate that the antifraud provisions of the Securities Acts nevertheless applied to noncontributory pension plans.",SEC Interpretation
+199,2504740,1,1,"Lexington is a corporation licensed to do business in South Carolina and organized and existing under the laws of the State of Delaware. In 2001, Lexington issued an insurance policy to White Oak, providing coverage from September 30, 2001, until May 13, 2002. From May 13, 2002, until March 31, 2003, there was a gap in coverage with Lexington, during which White Oak was insured by another carrier. Lexington resumed coverage from March 31, 2003, until March 31, 2004. On November 3, 2001, a White Oak resident sustained an injury from the improper application of a feeding tube by a White Oak employee. On January 10, 2002, White Oak notified Caronia Corporation (Caronia), the third-party administrator approved by Lexington to receive notice, of the incident. On March 27, 2003, a malpractice lawsuit on behalf of the injured resident was filed against White Oak. A mediation in the malpractice action was planned for August 2004. In anticipation of this mediation, counsel for White Oak sent a letter to Lexington's attorneys informing them of the scheduled mediation. In response, on August 5, 2004, Lexington's counsel sent a letter to White Oak's counsel asking whether White Oak was seeking coverage, the date and form of the first demand against White Oak, and the date and form of any notice White Oak sent to any other insurers. During the following two months, attorneys for White Oak had two conversations with counsel for Lexington regarding this letter. In December of 2004, counsel for Lexington again sent a letter to White Oak's attorneys discussing coverage issues. White Oak replied, and subsequently White Oak and Lexington had a telephone conversation regarding notice to Caronia of the claim against White Oak. White Oak later settled the malpractice action. On April 22, 2005, White Oak instituted the current action. The policy in question contains a service of suit clause that reads: It is further agreed that service of process in such a suit may be made upon Counsel, Legal Department, Lexington Insurance Company, 200 State Street, Boston, Massachusetts 02109 or his or her representative. On May 16, 2005, White Oak mailed the summons and complaint, return receipt requested, with delivery restricted to the addressee, to Lexington Insurance Company, 200 State St., Boston, MA 02109, ATTN: LEGAL DEPARTMENT. The return receipt was dated May 20, 2005. The signature on the return receipt appeared to be from an individual unknown to Lexington. According to Lexington's internal mail log, however, the pleadings were received on May 20, 2005, and personally delivered to Lexington's claim counselor on May 27, 2005; however, according to Lexington, neither the claim counselor nor the individual to whom the claim counselor was to pass such information recalled receiving the pleadings. On July 7, 2005, White Oak filed an affidavit of default. In an order dated July 15, 2005, the trial court held Lexington in default. On August 11, 2005, White Oak filed a notice of motion and motion for damages pursuant to Rule 55(b), SCRCP. On September 14, 2005, White Oak filed an amended complaint substituting certain defendants who are not parties to this appeal, which it served on Lexington by mail the same day. Attached as an exhibit to this amended complaint was the order of default. Lexington answered the amended complaint on September 26, 2005, and contemporaneously filed a motion to set aside the entry of default pursuant to Rule 55(c), SCRCP. [2] The trial court denied the motion and Lexington's subsequent motion to alter or amend. On November 17, 2008, the trial court held a hearing on White Oak's motion for damages. On November 21, 2008, the court filed an order in which it awarded White Oak judgment against Lexington in the amount of $153,266. Lexington then filed this appeal.",facts and procedural history
+200,107045,1,1,"This Court has recognized that the right to travel abroad is an important aspect of the citizen's `liberty'  guaranteed by the Due Process Clause of the Fifth Amendment. Kent v. Dulles, 357 U. S. 116, 127. In Aptheker v. Secretary of State, 378 U. S. 500, 517, we reaffirmed that freedom of travel is a constitutional liberty closely related to rights of free speech and association. As nations have become politically and commercially more dependent upon one another and foreign policy decisions have come to have greater impact upon the lives of our citizens, the right to travel has become correspondingly more important. Through travel, by private citizens as well as by journalists and governmental officials, information necessary to the making of informed decisions can be obtained. And, under our constitutional system, ultimate responsibility for the making of informed decisions rests in the hands of the people. As Professor Chafee has pointed out, An American who has crossed the ocean is not obliged to form his opinions about our foreign policy merely from what he is told by officials of our government or by a few correspondents of American newspapers. Moreover, his views on domestic questions are enriched by seeing how foreigners are trying to solve similar problems. In many different ways direct contact with other countries contributes to sounder decisions at home. Chafee, Three Human Rights in the Constitution of 1787, 195-196 (1956). The constitutional basis of the right to travel and its importance to decision-making in our democratic society led this Court in Kent v. Dulles, supra , to conclude that [i]f that `liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress. 357 U. S., at 129. Implicit in this statement, and at the very core of the holding in Kent v. Dulles , is a rejection of the argument there advanced and also made here by the Government that the Executive possesses an inherent power to prohibit or impede travel by restricting the issuance of passports. The Court in Kent expressly recognized that a passport is not only of great value, but also is necessary [4] to leave this country and to travel to most parts of the world. Kent v. Dulles, supra, at 121. The Court demonstrates in Kent v. Dulles , and I shall show in detail below, that there is no long-standing and consistent history of the exercise of an alleged inherent Executive power to limit travel or restrict the validity of passports. In view of the constitutional basis of the right to travel, the legal and practical necessity for passports, and the absence of a long-standing Executive practice of imposing area restrictions, I would rule here, as this Court did in Kent v. Dulles , that passport restrictions may be imposed only when Congress makes provision therefor in explicit terms. Kent v. Dulles, supra, at 130, consistent with constitutional guarantees. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579. I would hold expressly that the Executive has no inherent authority to impose area restrictions in time of peace.",inherent authority of the executive.
+201,107045,1,2,"I cannot accept the Court's view that authority to impose area restrictions was granted to the Executive by Congress in the Passport Act of 1926, 44 Stat. 887, 22 U. S. C. § 211a (1958 ed.), which provides, The Secretary of State may grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports. I do not believe that the legislative history of this provision, or administrative practice prior to its most recent re-enactment in 1926 will support the Court's interpretation of the statute. Moreover, the nature of the problem presented by area restrictions makes it unlikely that authority to impose such restrictions was granted by Congress in the course of enacting such a broad general statute. In my view, as the history I shall relate establishes, this statute was designed solely to centralize authority to issue passports in the hands of the Secretary of State in order to overcome the abuses and chaos caused by the fact that prior to the passage of the statute numerous unauthorized persons issued passports and travel documents.
+The 1926 provision has its origin in the Act of August 18, 1856, 11 Stat. 52, 60-61. Prior to 1856 the issuance of passports was not regulated by law. Governors of States, local mayors, and even notaries public issued documents which served as passports. This produced confusion abroad. In 1835 Secretary of State Forsyth wrote: It is within the knowledge of the Department that the diplomatic agents of foreign governments in the United States have declined authenticating acts of governors or other State or local authorities; and foreign officers abroad usually require that passports granted by such authorities shall be authenticated by the ministers or consuls of the United States. Those functionaries, being thus called upon, find themselves embarrassed between their desire to accommodate their fellow-citizens and their unwillingness to certify what they do not officially know; and the necessity of some uniform practice, which may remove the difficulties on all sides, has been strongly urged upon the Department. III Moore, International Law Digest 862-863 (1906). Despite administrative efforts to curb the flow of state and local passports, Secretary of State Marcy wrote in 1854: To preserve proper respect for our passports it will be necessary to guard against frauds as far as possible in procuring them. I regret to say that local magistrates or persons pretending to have authority to issue passports have imposed upon persons who go abroad with these spurious papers. Others, again, who know that they are not entitled to passports— not being citizens of the United States—seek to get these fraudulent passports, thinking that they will protect them while abroad. III Moore, op. cit. supra, at 863. As is noted in an official history of the State Department. The lack of legal provision on the subject [of passports] led to gross abuses, and `the impositions practiced upon the illiterate and unwary by the fabrication of worthless passports' [IX Op. Atty. Gen. 350] led finally to the passage of the Act of August 18, 1856. The Department of State of the United States: Its History and Functions 178 (1893). This Act provided that the Secretary of State shall be authorized to grant and issue passports. and cause passports to be granted, issued, and verified in foreign countries by such diplomatic or consular officers of the United States, and under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify any such passport. 11 Stat. 60. That Act made it a crime for a person to issue a passport who was not authorized to do so. This provision was re-enacted on July 3, 1926. 44 Stat. 887, in substantially identical form. [5] There is no indication in the legislative history either at the time the Act was originally passed in 1856 or when it was re-enacted, that it was meant to serve any purpose other than that of centralizing the authority to issue passports in the hands of the Secretary of State so as to eliminate abuses in their issuance. Thus, in my view, the authority to make rules, granted by the statute to the Executive, extends only to the promulgation of rules designed to carry out this statutory purpose.
+The administrative practice of the State Department prior to 1926 does not support the Court's view that when Congress re-enacted the 1856 provision in 1926 it intended to grant the Executive authority to impose area restrictions. Prior to the First World War the State Department had never limited the validity of passports for travel to any particular area. In fact, limitations upon travel had been imposed only twice. During the War of 1812 Congress specifically provided by statute that persons could not cross enemy lines without a passport. and in 1861 at the beginning of the Civil War the Secretary of State ruled that passports would not be issued to persons whose loyalty was in doubt. These restrictions were imposed in time of war. The first, restricting the area of travel, evidently was thought to require a specific statutory enactment by Congress, and the second did not limit the area of travel, but, rather, limited the persons to whom passports would be issued. [6] Until 50 years ago peacetime limitations upon the right of a citizen to travel were virtually unknown, see Chafee, op. cit. supra, at 193; Jaffe, The Right to Travel: The Passport Problem. 35 Foreign Affairs 17, and it was in this atmosphere that the Act of 1856 was passed and its re-enactment prior to 1926 took place. The only area restrictions imposed between 1856 and 1926 arose out of the First World War. Although Americans were not required by law to carry passports in 1915, certain foreign countries insisted that Americans have them. American Consulates and Embassies abroad were therefore authorized to issue emergency passports after the outbreak of the war, and in 1915 the Secretary of State telegraphed American Ambassadors and Ministers in France, Germany, Great Britain, Italy, the Netherlands, and Denmark: Do not issue emergency passports for use in Belgium [then occupied by German armed forces] unless applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission. See III Hackworth, Digest of International Law 525-526 (1942). After the United States entered World War I travel to areas of belligerency and to enemy countries was restricted. Passports were marked not valid for travel to these areas, and Congress provided by statute that passports were necessary in order to leave or enter the United States. The congressional Act requiring passports for travel expired in 1921, and soon after the official end of the war passports were marked valid for travel to all countries. See III Hackworth, supra, at 527; Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., 64 (hereafter Senate Hearings). Thus in 1926 freedom of travel was as complete as prior to World War I. In this atmosphere Congress re-enacted, in virtually identical terms, the 1856 statute, the sole purpose of which, as I have already noted, was to centralize passport issuance. Congress in doing so did not indicate the slightest intent or desire to enlarge the authority of the Executive to regulate the issuance of passports. Surely travel restrictions imposed while the United States was at war and a single telegram instructing ministers to deny emergency passports for a brief time in 1915 for travel to a theatre of war, do not show that Congress, by re-enacting the 1856 Act in 1926, intended to authorize the Executive to impose area restrictions upon travel in peacetime whenever the Executive believed such restrictions might advance American foreign policy. The long tradition of freedom of movement, the fact that no passport area restrictions existed prior to World War I, the complete absence of any indication in the legislative history that Congress intended to delegate such sweeping authority to the Executive all point in precisely the opposite direction. [7] In Kent v. Dulles, supra , the Court held that the 1926 Act did not authorize the Secretary of State to withhold passports from persons because of their political beliefs or associations. Although it was argued that prior to 1926 the Secretary had withheld passports from Communists and other suspected subversives and that such an administrative practice had been adopted by Congress, the Court found that the evidence of such a practice was insufficient to warrant the conclusion that it had congressional authorization. Yet in Kent v. Dulles the Government pointed to scattered Executive interpretations showing that upon occasion the State Department believed that it had the authority in peacetime to withhold passports from persons deemed by the Department to hold subversive beliefs. In 1901 Attorney General Knox advised the Secretary of State that a passport might be withheld from an avowed anarchist. 23 Op. Atty. Gen. 509, 511. Orders promulgated by the Passport Office periodically have required denial of passport to revolutionary radicals. See Passport Office Instructions of May 4, 1921. A State Department memorandum of May 29, 1956, in summarizing the Department's passport policy, states that after the Russian Revolution passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 . . . . [8] These isolated instances of the assumption of authority to refuse passports to persons thought subversive were held insufficient to show that Congress in 1926 intended to grant the Secretary of State discretionary authority to deny passports to persons because of their political beliefs, Kent v. Dulles, supra, at 128. This case presents an even more attenuated showing of administrative practice, for there is revealed only one isolated instance of a peacetime area restriction and this closely connected with World War I. Clearly this single instance is insufficient to show that Congress intended to authorize the Secretary to impose peacetime area restrictions. Moreover, just as the more numerous instances of restriction on travel because of political beliefs and associations in wartime were insufficient to show that Congress intended to grant the Secretary authority to curtail such travel in time of peace, see Kent v. Dulles, supra, at 128. so here the fact that area restrictions were imposed during World War I does not show that Congress intended to grant the Secretary authority to impose such restrictions in time of peace. In time of war and in the exercise of the war power, restrictions may be imposed that are neither permissible nor tolerable in time of peace. See Kent v. Dulles, supra, at 128; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579. But see Kennedy v. Mendoza-Martinez, 372 U. S. 144. Thus even if the State Department's wartime practice should lead to the conclusion that area restrictions in time of war were sanctioned, it surely does not show that Congress wished to authorize similar curtailment of the right to travel in time of peace. [9] While the Court intimates that Kent v. Dulles is distinguishable from the present case because in Kent v. Dulles passports were denied on the basis of the applicants' political beliefs, ante, at 13, I find little in the logic of that opinion to support such a distinction. The Court in Kent v. Dulles based its conclusions that the Executive does not have an inherent power to impose peacetime passport restrictions and that Congress did not delegate such authority to the Executive on the history of passport restrictions and the constitutional basis of the right to travel. While the Court there mentions that it is dealing with beliefs, with associations, with ideological matters, 357 U. S. at 130, a reading of the opinion clearly reveals that its holding does not turn upon such factors. Moreover, the importance of travel to the gathering of information, an activity closely connected with the First Amendment and a right asserted here, seems to be a major reason for the Court's holding in Aptheker and Kent that the right to travel is afforded constitutional protection. Kent v. Dulles thus seems not only relevant, but controlling, in the case presented here.
+The Court's interpretation of the 1926 Passport Act not only overlooks the legislative history of the Act and departs from the letter and spirit of this Court's decisions in Kent v. Dulles, supra , and Aptheker v. Secretary of State, supra , but it also implies that Congress resolved. through a sweeping grant of authority, the many substantial problems involved in curtailing a citizen's right to travel because of considerations of national policy. People travel abroad for numerous reasons of varying importance. Some travel for pleasure, others for business, still others for education. Foreign correspondents and lecturers must equip themselves with firsthand information. Scientists and scholars gain considerably from interchanges with colleagues in other nations. See Chafee, op. cit. supra, at 195. Just as there are different reasons for people wanting to travel, so there are different reasons advanced by the Government for its need to impose area restrictions. These reasons vary. The Government says restrictions are imposed sometimes because of political differences with countries, sometimes because of unsettled conditions. and sometimes, as in this case, as part of a program, undertaken together with other nations, to isolate a hostile foreign country such as Cuba because of its attempts to promote the subversion of democratic nations. See Senate Hearings 63-69. The Department of State also has imposed different types of travel restrictions in different circumstances. All newsmen, for example, were prohibited from traveling to China, see Senate Hearings 67, but they have been allowed to visit Cuba. See Public Notice 179 (Jan. 16, 1961), 26 Fed. Reg. 492; Press Release No. 24, issued by the Secretary of State, Jan. 16, 1961. In view of the different types of need for travel restrictions, the various reasons for traveling abroad, the importance and constitutional underpinnings of the right to travel and the right of a citizen and a free press to gather information about foreign countries, it cannot be presumed that Congress, without focusing upon the complex problems involved, resolved them by adopting a broad and sweeping statute which, in the Court's view, confers unlimited discretion upon the Executive, and which makes no distinctions reconciling the rights of the citizen to travel with the Government's legitimate needs. I do not know how Congress would deal with this complex area were it to focus on the problems involved, or whether, for example, in light of our commitment to freedom of the press, Congress would consent under any circumstances to prohibiting newsmen from traveling to foreign countries. But, faced with a complete absence of legislative consideration of these complex issues, I would not presume that Congress, in 1926, issued a blanket authorization to the Executive to impose area restrictions and define their scope and duration, for the nature of the problem seems plainly to call for a more discriminately fashioned statute.",statutory authority
+202,107045,2,2,"The administrative practice of the State Department prior to 1926 does not support the Court's view that when Congress re-enacted the 1856 provision in 1926 it intended to grant the Executive authority to impose area restrictions. Prior to the First World War the State Department had never limited the validity of passports for travel to any particular area. In fact, limitations upon travel had been imposed only twice. During the War of 1812 Congress specifically provided by statute that persons could not cross enemy lines without a passport. and in 1861 at the beginning of the Civil War the Secretary of State ruled that passports would not be issued to persons whose loyalty was in doubt. These restrictions were imposed in time of war. The first, restricting the area of travel, evidently was thought to require a specific statutory enactment by Congress, and the second did not limit the area of travel, but, rather, limited the persons to whom passports would be issued. [6] Until 50 years ago peacetime limitations upon the right of a citizen to travel were virtually unknown, see Chafee, op. cit. supra, at 193; Jaffe, The Right to Travel: The Passport Problem. 35 Foreign Affairs 17, and it was in this atmosphere that the Act of 1856 was passed and its re-enactment prior to 1926 took place. The only area restrictions imposed between 1856 and 1926 arose out of the First World War. Although Americans were not required by law to carry passports in 1915, certain foreign countries insisted that Americans have them. American Consulates and Embassies abroad were therefore authorized to issue emergency passports after the outbreak of the war, and in 1915 the Secretary of State telegraphed American Ambassadors and Ministers in France, Germany, Great Britain, Italy, the Netherlands, and Denmark: Do not issue emergency passports for use in Belgium [then occupied by German armed forces] unless applicants obliged to go thither by special exigency or authorized by Red Cross or Belgian Relief Commission. See III Hackworth, Digest of International Law 525-526 (1942). After the United States entered World War I travel to areas of belligerency and to enemy countries was restricted. Passports were marked not valid for travel to these areas, and Congress provided by statute that passports were necessary in order to leave or enter the United States. The congressional Act requiring passports for travel expired in 1921, and soon after the official end of the war passports were marked valid for travel to all countries. See III Hackworth, supra, at 527; Hearings before the Senate Committee on Foreign Relations on Department of State Passport Policies, 85th Cong., 1st Sess., 64 (hereafter Senate Hearings). Thus in 1926 freedom of travel was as complete as prior to World War I. In this atmosphere Congress re-enacted, in virtually identical terms, the 1856 statute, the sole purpose of which, as I have already noted, was to centralize passport issuance. Congress in doing so did not indicate the slightest intent or desire to enlarge the authority of the Executive to regulate the issuance of passports. Surely travel restrictions imposed while the United States was at war and a single telegram instructing ministers to deny emergency passports for a brief time in 1915 for travel to a theatre of war, do not show that Congress, by re-enacting the 1856 Act in 1926, intended to authorize the Executive to impose area restrictions upon travel in peacetime whenever the Executive believed such restrictions might advance American foreign policy. The long tradition of freedom of movement, the fact that no passport area restrictions existed prior to World War I, the complete absence of any indication in the legislative history that Congress intended to delegate such sweeping authority to the Executive all point in precisely the opposite direction. [7] In Kent v. Dulles, supra , the Court held that the 1926 Act did not authorize the Secretary of State to withhold passports from persons because of their political beliefs or associations. Although it was argued that prior to 1926 the Secretary had withheld passports from Communists and other suspected subversives and that such an administrative practice had been adopted by Congress, the Court found that the evidence of such a practice was insufficient to warrant the conclusion that it had congressional authorization. Yet in Kent v. Dulles the Government pointed to scattered Executive interpretations showing that upon occasion the State Department believed that it had the authority in peacetime to withhold passports from persons deemed by the Department to hold subversive beliefs. In 1901 Attorney General Knox advised the Secretary of State that a passport might be withheld from an avowed anarchist. 23 Op. Atty. Gen. 509, 511. Orders promulgated by the Passport Office periodically have required denial of passport to revolutionary radicals. See Passport Office Instructions of May 4, 1921. A State Department memorandum of May 29, 1956, in summarizing the Department's passport policy, states that after the Russian Revolution passports were refused to American Communists who desired to go abroad for indoctrination, instruction, etc. This policy was continued until 1931 . . . . [8] These isolated instances of the assumption of authority to refuse passports to persons thought subversive were held insufficient to show that Congress in 1926 intended to grant the Secretary of State discretionary authority to deny passports to persons because of their political beliefs, Kent v. Dulles, supra, at 128. This case presents an even more attenuated showing of administrative practice, for there is revealed only one isolated instance of a peacetime area restriction and this closely connected with World War I. Clearly this single instance is insufficient to show that Congress intended to authorize the Secretary to impose peacetime area restrictions. Moreover, just as the more numerous instances of restriction on travel because of political beliefs and associations in wartime were insufficient to show that Congress intended to grant the Secretary authority to curtail such travel in time of peace, see Kent v. Dulles, supra, at 128. so here the fact that area restrictions were imposed during World War I does not show that Congress intended to grant the Secretary authority to impose such restrictions in time of peace. In time of war and in the exercise of the war power, restrictions may be imposed that are neither permissible nor tolerable in time of peace. See Kent v. Dulles, supra, at 128; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579. But see Kennedy v. Mendoza-Martinez, 372 U. S. 144. Thus even if the State Department's wartime practice should lead to the conclusion that area restrictions in time of war were sanctioned, it surely does not show that Congress wished to authorize similar curtailment of the right to travel in time of peace. [9] While the Court intimates that Kent v. Dulles is distinguishable from the present case because in Kent v. Dulles passports were denied on the basis of the applicants' political beliefs, ante, at 13, I find little in the logic of that opinion to support such a distinction. The Court in Kent v. Dulles based its conclusions that the Executive does not have an inherent power to impose peacetime passport restrictions and that Congress did not delegate such authority to the Executive on the history of passport restrictions and the constitutional basis of the right to travel. While the Court there mentions that it is dealing with beliefs, with associations, with ideological matters, 357 U. S. at 130, a reading of the opinion clearly reveals that its holding does not turn upon such factors. Moreover, the importance of travel to the gathering of information, an activity closely connected with the First Amendment and a right asserted here, seems to be a major reason for the Court's holding in Aptheker and Kent that the right to travel is afforded constitutional protection. Kent v. Dulles thus seems not only relevant, but controlling, in the case presented here.",The Administrative Practice.
+203,107045,2,3,"The Court's interpretation of the 1926 Passport Act not only overlooks the legislative history of the Act and departs from the letter and spirit of this Court's decisions in Kent v. Dulles, supra , and Aptheker v. Secretary of State, supra , but it also implies that Congress resolved. through a sweeping grant of authority, the many substantial problems involved in curtailing a citizen's right to travel because of considerations of national policy. People travel abroad for numerous reasons of varying importance. Some travel for pleasure, others for business, still others for education. Foreign correspondents and lecturers must equip themselves with firsthand information. Scientists and scholars gain considerably from interchanges with colleagues in other nations. See Chafee, op. cit. supra, at 195. Just as there are different reasons for people wanting to travel, so there are different reasons advanced by the Government for its need to impose area restrictions. These reasons vary. The Government says restrictions are imposed sometimes because of political differences with countries, sometimes because of unsettled conditions. and sometimes, as in this case, as part of a program, undertaken together with other nations, to isolate a hostile foreign country such as Cuba because of its attempts to promote the subversion of democratic nations. See Senate Hearings 63-69. The Department of State also has imposed different types of travel restrictions in different circumstances. All newsmen, for example, were prohibited from traveling to China, see Senate Hearings 67, but they have been allowed to visit Cuba. See Public Notice 179 (Jan. 16, 1961), 26 Fed. Reg. 492; Press Release No. 24, issued by the Secretary of State, Jan. 16, 1961. In view of the different types of need for travel restrictions, the various reasons for traveling abroad, the importance and constitutional underpinnings of the right to travel and the right of a citizen and a free press to gather information about foreign countries, it cannot be presumed that Congress, without focusing upon the complex problems involved, resolved them by adopting a broad and sweeping statute which, in the Court's view, confers unlimited discretion upon the Executive, and which makes no distinctions reconciling the rights of the citizen to travel with the Government's legitimate needs. I do not know how Congress would deal with this complex area were it to focus on the problems involved, or whether, for example, in light of our commitment to freedom of the press, Congress would consent under any circumstances to prohibiting newsmen from traveling to foreign countries. But, faced with a complete absence of legislative consideration of these complex issues, I would not presume that Congress, in 1926, issued a blanket authorization to the Executive to impose area restrictions and define their scope and duration, for the nature of the problem seems plainly to call for a more discriminately fashioned statute.",The Statute's Inapplicability to the Problem of Area Restrictions.
+204,107875,1,1,"Upon reflection, I can no longer accept the rule first announced two years ago in Stovall v. Denno, supra , and reaffirmed today, which permits this Court to apply a new constitutional rule entirely prospectively, while making an exception only for the particular litigant whose case was chosen as the vehicle for establishing that rule. Indeed, I have concluded that Linkletter was right in insisting that all new rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the new decision is handed down. Matters of basic principle are at stake. In the classical view of constitutional adjudication, which I share, criminal defendants cannot come before this Court simply to request largesse. This Court is entitled to decide constitutional issues only when the facts of a particular case require their resolution for a just adjudication on the merits. See Marbury v. Madison, 1 Cranch 137 (1803). We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a new rule of constitutional law. The unsound character of the rule reaffirmed today is perhaps best exposed by considering the following hypothetical. Imagine that the Second Circuit in the present case had anticipated the line of reasoning this Court subsequently pursued in Katz v. United States, supra, at 352-353, concluding—as this Court there did— that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling. Id., at 353. Would we have reversed the case on the ground that the principles the Second Circuit had announced—though identical with those in Katz —should not control because Katz is not retroactive? To the contrary, I venture to say that we would have taken satisfaction that the lower court had reached the same conclusion we subsequently did in Katz. If a new constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. Anything else would belie the truism that it is the task of this Court, like that of any other, to do justice to each litigant on the merits of his own case. It is only if our decisions can be justified in terms of this fundamental premise that they may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature. Re-examination of prior developments in the field of retroactivity leads me irresistibly to the conclusion that the only solid disposition of this case lies in vacating the judgment of the Court of Appeals and in remanding this case to that court for further consideration in light of Katz.",retroactivity on direct review.
+205,107875,1,2,"What has already been said is, from my standpoint, enough to dispose of the case before us. Ordinarily I would not go further. But in this instance I consider it desirable and appropriate to venture some observations on the application of the retroactivity doctrine in habeas corpus cases, under the prevailing scope of the Great Writ as set forth in this Court's 1963 decision in Fay v. Noia, 372 U. S. 391, and in today's decision in Kaufman v. United States, ante, p. 217. I believe this course is fitting because none of the Court's prior retroactivity decisions has faced up to the quite different factors which should govern the application of retroactivity in habeas corpus cases; because the retroactive application of Katz in habeas corpus cases would seem to be foreclosed by the present decision; because principled habeas retroactivity now seems to me to demand much more than the purpose, reliance, and judicial administration standards, ante, at 249, which have so far been regarded as the tests governing retroactivity in direct review and habeas corpus cases alike; and because the retroactivity doctrine is still in a developing stage. In what ensues I shall simply try to suggest some of the considerations which appear to me to lay bare the complexities of the retroactivity problem on habeas which I feel have not been sufficiently explored in past decisions, leaving expression of definitive views upon any of such considerations for future habeas cases to which they are germane.
+While, as I have argued, a reviewing court has the obligation to rule upon every decisive issue properly raised by the parties on direct review, the federal courts have never had a similar obligation on habeas corpus. Indeed, until Brown v. Allen, 344 U. S. 443 (1953), federal courts would never consider the merits of a constitutional claim if the habeas petitioner had a fair opportunity to raise his arguments in the original proceeding. [2] See my dissent in Fay v. Noia, supra, at 449-463; see also Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463 (1963). With habeas restricted in this way, the question of applying a new constitutional rule to convictions which had become final arose so infrequently that the retroactivity issue could not be considered a significant one in those days. Even under Brown, the retroactive application of new rules in habeas cases did not serve to erode the finality of criminal judgments to any substantial degree. It was the rare case in which the habeas petitioner had raised a new constitutional argument both at his original trial and on appeal. Yet it was only in such a case that Brown would permit a habeas court to apply the new rule. Cf. Sunal v. Large, 332 U. S. 174 (1947). The conflict between retroactivity and finality only became of major importance with the Court's decision in Fay v. Noia, supra . For the first time, it was there held that, at least in some instances, a habeas petitioner could successfully attack his conviction collaterally despite the fact that the new rule had not even been suggested in the original proceedings. Thus, Noia opened the door for large numbers of prisoners to relitigate their convictions each time a new constitutional rule was announced by this Court. I continue to believe that Noia, which has been given even broader scope in Kaufman v. United States, supra , constitutes an indefensible departure both from the historical principles which defined the scope of the Great Writ and from the principles of federalism which have formed the bedrock of our constitutional development. Nevertheless, my views on this score have not prevailed, and pending re-examination of the scope of habeas corpus, I believe myself obliged to consider on its own bottom the retroactivity problem which Noia has spawned, since it is a matter of the greatest importance if the integrity of the federal judicial process is to be maintained in this era of increasingly rapid constitutional change.
+The greatly expanded writ of habeas corpus seems at the present time to serve two principal functions. See Kaufman v. United States, supra , at 229; Mishkin, The Supreme Court, 1964 Term—Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 77-101 (1965). First, it seeks to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. It follows from this that all new constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas. See my Brother BLACK'S dissent in Kaufman v. United States, supra, at 235-236. The new habeas, however, is not only concerned with those rules which substantially affect the fact-finding apparatus of the original trial. Under the prevailing notions, Kaufman v. United States, supra, at 224-226, the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, the habeas court need not, as prior cases make clear, necessarily apply all new constitutional rules retroactively. In these cases, the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place. The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a new rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. Only a short time ago, for example, we attempted to define with more precision the conditions governing the issuance of a search warrant under the Fourth Amendment. Spinelli v. United States, 393 U. S. 410 (1969). While we had never previously encountered the precise situation raised in Spinelli, our decision in that case rested upon the established doctrine that a magistrate may issue a warrant only when he can judge for himself the validity of the affiant's conclusion that criminal activity is involved. Johnson v. United States, 333 U. S. 10, 14 (1948); Aguilar v. Texas, 378 U. S. 108 (1964). Surely, it could not be thought that Spinelli should not be retroactively applied under the expanded habeas process because it was not announced until 1969. One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the new rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final. In the Katz case, however, one can say with assurance that there was a time at which this Court would have ruled differently. For in Olmstead, Goldman, and On Lee, [3] the Court did just that. Even under the prevailing view of habeas, this fact should be of significance. Although the threat of collateral attack may be necessary to assure that the lower federal and state courts toe the constitutional line, the lower courts cannot be faulted when, following the doctrine of stare decisis, they apply the rules which have been authoritatively announced by this Court. If anyone is responsible for changing these rules, it is this Court. Even in this situation, however, the doctrine of stare decisis cannot always be a complete answer to the retroactivity problem if a habeas petitioner is really entitled to the constitutional law which prevailed at the time of his conviction. Consider, for example, the state of Fourth Amendment law as it existed after our decision in Silverman v. United States, 365 U. S. 505 (1961). As my Brother STEWART notes today, ante, at 248, Silverman went a long way toward rejecting the principles supporting the Goldman and Olmstead rules. The Court in Silverman cautioned that the scope of the Fourth Amendment's protection is not inevitably measurable in terms of ancient niceties of tort or real property law. 365 U. S., at 511. The majority's opinion concluded with the warning: We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch. Id., at 512. It is hard to believe that any lawyer worthy of the name could, after reading Silverman, rely with confidence on the continuing vitality of the Goldman rule. Nor is it by any means clear to me that it would have been improper for a lower court to have declined to follow Goldman in the light of Silverman. [4] Given the deterrence purpose of the expanded habeas corpus, it thus could be persuasively argued that the Katz rule should be applied to all cases which had not become final at the time Silverman was decided. [5]
+Katz, of course, has been one of the lesser innovations of a decade that has witnessed revolutionary changes in the most fundamental premises of hitherto accepted constitutional law. And similar difficulties arise as to the retroactive application of the Court's other landmark decisions if one is to insist that a habeas petitioner is entitled to the law as it stood at the time of his conviction. It is possible to argue, for example, that the Court's decision in Mapp v. Ohio, 367 U. S. 643 (1961), imposing the exclusionary rule on the States, was a sufficient indication to the lower courts that they should no longer rely on the doctrine of stare decisis when confronted with the claim that other Bill of Rights guarantees should be incorporated into the Due Process Clause of the Fourteenth Amendment. It would follow from this position that all subsequent decisions incorporating various other provisions of the Bill of Rights into Due Process should be applied to all cases arising on habeas which were pending on appeal at the time Mapp was decided. On the other hand, one could argue that stare decisis was still the appropriate rule for the lower courts until this Court made it clear that a particular guarantee was applicable to the States. It would follow from this position that the Court's decision in Griffin v. California, 380 U. S. 609 (1965), should be retroactively applied only to Malloy v. Hogan, 378 U. S. 1 (1964), which was the first case beginning the process of incorporating the Fifth Amendment's privilege against self-incrimination, and that Duncan v. Louisiana, 391 U. S. 145 (1968), should not be applied to any of those cases which had become final before that decision required the States to provide criminal jury trials on the same basis as the Federal Government. Neither of these positions would be squarely inconsistent with the Court's new view of habeas corpus. Indeed, if the Court in Mapp had given any indication whatever that it accepted my Brother BLACK'S incorporationist philosophy in its pristine purity, see Adamson v. California, 332 U. S. 46, 68-123 (1947), it would appear that it would have been improper for the lower courts to rely on the old precedents to respond to the new claims advanced by criminal defendants. However, the Court has never accepted MR. JUSTICE BLACK'S constitutional premises in full-blown form. Instead, it has embarked on a course of selective incorporation in which the nature of each particular Bill of Rights guarantee has been examined before it was imposed upon the States. Given the ad hoc character of this approach, and given the fundamental place of federalism in the traditional conception of constitutional adjudication, it could certainly be strongly argued that the lower courts could properly follow the traditional due process approach until the time this Court made it clear that a particular Bill of Rights guarantee had been incorporated. The relationship for retroactivity purposes among the Escobedo, Miranda, Wade, and Gilbert decisions [6] presents another difficult problem under the new habeas corpus concept. It can be argued that the line-up cases, Wade and Gilbert, should be retroactively applied to all those cases pending when Miranda was decided. Since Miranda placed affirmative requirements upon police officers to assure that the accused would have an opportunity to obtain counsel at one critical stage of the criminal process, neither police officials nor the lower courts, it might be argued, could properly assume that other critical stages would not be comparably treated. Similarly, it may be suggested that the rules announced in both Miranda and the line-up cases should be applied to all cases still pending on appeal when Escobedo v. Illinois announced that the Sixth Amendment applied in the police station. For Gideon v. Wainwright, 372 U. S. 335 (1963), had already established the proposition that the State must provide free counsel to indigents at the criminal trial. It is doubtless true that a habeas court encounters difficult and complex problems if it is required to chart out the proper implications of the governing precedents at the time of a petitioner's conviction. One may well argue that it is of paramount importance to make the choice of law problem on habeas as simple as possible, applying each new rule only to those cases pending at the time it is announced. While this would obviously be simpler, simplicity would be purchased at the cost of compromising the principle that a habeas petitioner is to have his case judged by the constitutional standards dominant at the time of his conviction. I do not pretend to have exhausted in the foregoing discussion all the complexities of the retroactivity problem on habeas. But the considerations I have canvassed suggest that we should take a hard look at where we are going in the retroactivity field so that this new doctrine may be administered in accordance with the basics of the judicial tradition. Unfortunately, the Court does not even attempt this task. For the reasons stated in Part I of this opinion I cannot subscribe to the affirmance of the judgment of the Court of Appeals. I would remand the case to that court for reconsideration in light of Katz v. United States .",retroactivity on habeas corpus.
+206,106161,1,1,"I think it manifest that the Commission weighed against certification the fact that the sale to Consolidated Edison was direct to a consumer and hence not subject to normal Commission regulation of sales to pipeline companies for resale. [1] The Trial Examiner referred to The Staff's opposition as based, among other reasons, on the fact that: The proposal is obviously an attempt to evade the jurisdiction of the Commission over the sale of natural gas for use in the large consuming centers of the country and thus may be contrary to the public interest; . . . And the Examiner referred to the Staff's argument that this sort of non-jurisdictional activity by Consolidated Edison should be halted as an example to others who may similarly attempt to avoid regulation in this way. The same argument was repeated to the Commission itself. That the Commission adopted this approach of viewing this particular sale as but a facet of the broader direct-sale problem is clear from the reasons it states, 21 F. P. C. 138, as weighing towards denial of the certificate. Each of the considerations of effect on field prices and distribution of field supply is worded in the plural. The Commission throughout its report speaks as if it is presently forbidding access to the producer in the field by any one except pipelines purchasing for resale. That it is not restricting itself to the denial of the particular transportation involved in the X-20 service but is instead only denying that service because of the adverse effects that would result from committing itself to regularly allowing direct purchases in the field by nonpipelines, is apparent from the following: [I]f we were to grant this request we would soon be confronted with many requests of the same general character . . . . ..... How much more serious is that impact [of large demand on limited supply] when it is in the form of multiple bidders . . . . And how long the pipeline can continue to buy in competition with nonjurisdictional, large volume purchasers . . . is at least a question. Id., p. 141. In its denial of a rehearing [2] the Commission acknowledged that it considered the adverse effects on the public of granting this and similar such authorizations including the effect of stimulating increased purchases of gas in the field by distributing companies in substitution for the present, prevalent types of interstate natural-gas services involving purchases and resales by natural-gas pipeline companies . . . . Id., p. 399. [3] It is clear, then, that the Commission was concerned with the adverse effects it felt characterized most sales to distributing companies or consumers, rather than with anything offensive about this particular sale (excepting of course the proposed end use). What were these adverse effects of all direct sales? Two are central to the Commission's opinion. First, the authorization of this and like proposals would pre-empt for this usage capacity which would otherwise be available to meet more urgent and widely beneficial public needs . . . . 21 F. P. C., at 141. [4] Second, there is the effect on field prices: The impact of large demand on relatively limited supply is certain enough to raise rates and field prices if only one bidder is bringing that demand to bear on the supply. How much more serious is that impact when it is in the form of multiple bidders, each attempting to reserve to itself a firm supply. Inevitably, there would be upward pressure on rate levels in the fields. We do not believe we ought to encourage such when it is unnecessary. . . . Ibid. Thus, the Commission has quite evidently asserted a power to frown upon any transaction which does not take the form of a sale to a pipeline for resale. On that basis, it was in this case, and would hereafter be, unnecessary for the Commission to decide whether a particular sale to a consumer or distributing company results in a waste of jurisdictional resources or an unwarranted boosting of field prices. Since, in the Commission's view, sales not to pipelines, as a class, generally have these unfortunate characteristics, it is sufficient that the particular transaction is one of that class. The Commission has made clear that it was the harms inherent in the form this sale took that weighed against the issuance of a transportation certificate, not the unfortunate effects of the transaction itself. I cannot agree that the Commission had discretion to adopt this position when it had available to it far less drastic alternatives.",premises of the commission's denial.
+207,106161,1,2,"Without purporting to exhaust the full reach of its discretion, the premises on which the Commission, in my view, should have proceeded will be now indicated. Basically, I think it was open to the Commission to decide whether the particular transportation service before it would tend to waste gas, unduly pre-empt pipeline capacity, or raise field prices. I think the Commission can properly assert this more limited power as an incident of its transportation certificating powers. [5] It is quite true of course that Consolidated Edison need not have resorted to the Federal Power Commission if the purchase transaction had been possible without the interstate transportation of the gas in jurisdictional pipelines, since this was not a purchase of natural gas for resale. Note 1, supra. However, it does not follow that the Commission had to blind itself to the effects of the purchase and use of the gas when its authority to certificate the transportation of the gas was invoked. To recognize that the transaction was, as a practical matter, impossible without the use of jurisdictional facilities for the interstate transportation of the purchased gas is to acknowledge that this transportation is as integral a part of the transaction as was the sale itself. Whether the adverse effect of the transaction be a waste of a scarce resource, or pre-emption of pipeline capacity, or a substantial boosting of field prices, the transportation is as responsible for the effects as is the original sale. I see no reason why the Commission must certify, as in accord with the public convenience and necessity, transportation which tends materially to further such undesirable results which are within the area of the Commission's legitimate concern when it is considering the public convenience and necessity of certificating a jurisdictional sale. Assuming that it is results only made possible by jurisdictional transportation that the Commission wishes to consider, an attempted distinction between transportation and sale certification proceedings simply obscures the important question: what undesirable results are envisioned by § 1 (b) to be the concern of the States and not the concern of the Federal Power Commission? We hold in this case that the economic waste of natural gas that might otherwise be available for jurisdictional transactions ending in superior uses is such a legitimate concern. Similar considerations pertain to the pre-emption of pipeline capacity. Note 4, supra. Finally, we have held in Atlantic Refining Co. v. Public Service Comm'n, 360 U. S. 378, that the Commission must consider the effect on field prices for future jurisdictional sales of an excessive purchase price. Asserting power to consider these effects does not involve assuming jurisdiction over matters that Congress has reserved to the States in § 1 (b), for it does not involve protecting citizens of either the producing or consuming State against harms that local regulatory bodies have the power to prevent. These effects being the legitimate concern of the Federal Power Commission, they are no less so in a certification proceeding for transportation than in such a proceeding for the sale of natural gas. Each of these effects, if materially furthered by the transportation being considered, can properly be relied upon, on a case-by-case basis, in the denial of a transportation certificate.",postulates on which the commission should have proceeded.
+208,106161,1,3,"If, as I have argued, the Commission has power to decide on an adequate record to deny a transportation certificate in part because the gas to be transported is to be used for inferior purposes or because that gas was purchased at a price adversely affecting the prices of later jurisdictional sales, I do not think there is any basis for the Commission's further claim of authority to consider as an adverse factor the mere fact that the sale was direct to a consumer or distributor. As to inferior end use or pre-emption of pipeline capacity, the latter being another aspect of the former, the invalidity of the Commission's claim is easily established. Once the Commission has weighed against the grant of the certificate the fact that it results in economic waste there is nothing added by the circumstance that it is also a direct sale to a consumer and the Commission's belief that most of such sales result in economic waste. The Commission's consideration of the impact on field prices is more refined, although no more solidly grounded. The Commission did not merely consider that the price of these sales would be unregulatable and argue that therefore all sales to consumers or distributors must be forbidden. So it is not a complete answer to repeat what has just been said about the Commission's consideration of inferior end use and pipeline pre-emption—that those factors can be fully considered on a case-by-case basis. The Commission passed beyond the possible problem of unregulatable prices to an economic argument, namely, that increasing even the number of theoretically regulatable bidders for gas in the field must, as a practical matter, create a difficult-to-control-and-regulate upward pressure on field prices. I consider reasonable the economics of the Commission's position, [6] but unreasonable its finding of statutory authority for the Draconian solution it proposes. In my opinion the Commission cannot attempt to protect its legitimate interest in lower field prices by denying sale or transportation certificates to any arbitrarily chosen group of purchasers. Such whimsy is not contemplated by the statute. Is there, then, a justifying basis for discriminating against purchasers other than pipelines purchasing for resale? It cannot be the fact that the use these purchasers propose is often inferior, for the Commission can consider this factor when the occasion arises. It cannot be the fact that the effect on field prices is worse, for prices paid by both pipelines and other purchasers can be considered by the Commission when passing upon the public interest either in a sale-for-resale or in a transportation certificate proceeding. I can find no justifying basis for the distinction sought to be drawn by the Commission between pipelines and others. To the contrary, the discrimination against nonpipeline purchasers flouts the statutory structure by permitting the Commission to exercise greater regulatory power over transactions with one nonjurisdictional aspect (the direct sale) than the Commission has over transactions of which both aspects (sale-for-resale and transportation) are jurisdictional. Moreover, to recognize the discrimination against direct sales that the Commission proposes in order to reduce the upward price pressure resulting from increased numbers of bidders, is to ignore the fact that the statute contemplates and provides regulation for the use of pipelines both as wholly transportation or carrier facilities. There is no indication that this carrier function of pipelines was to be limited to carrying for producers who would then sell in the State of destination. It also properly extends to carrying for and to wholesalers or consumers in the State of destination. [7] These, then, in my opinion are the considerations which require a holding that it was an abuse of discretion for the Commission to hold sales to pipelines generally more in accord with the public interest than other sales. There is absolutely no rational basis, as I see it, for selecting distributing companies and consumers as the group of bidders to be sacrificed and eliminated in order to reduce the pressure toward higher field prices. There is no harmful characteristic of these bidders that is not fully shared by pipeline purchasers. Even worse, the purposeful elimination of this entire class of prospective purchasers clashes with the structure of a statute that was largely motivated by a desire to reduce the power of the pipeline companies. This conflict is most clearly manifested in the violence that the Commission's proposal does to the statute's provisions for regulation of a wholly carrier function of the pipelines, for a wholly carrier function can only be served on behalf of either producers which have already sold directly to nonpipelines or on behalf of nonpipelines which have already purchased directly from the producers. It is inescapable that forbidding all transactions involving direct sales between producers and nonpipelines eliminates any wholly carrier function for the pipelines, i. e., eliminates one entire facet of the Commission's statutory jurisdiction. This statutory amputation—resulting in greater regulatory power over transactions with some non-jurisdictional aspects than there is over transactions all aspects of which are jurisdictional—is clearly outside the discretion of the Federal Power Commission. Since the Commission regarded as necessary to its decision factors beyond its discretion to consider, the proceeding should be remanded to that agency for reconsideration. We cannot order the certificate granted, for there are results of this particular transportation which the Commission can and should properly consider but which were left unconsidered because of the erroneous broader grounds of the denial. On remand the Commission should not only consider and support with adequate fact findings the particular effects of this transaction on field prices and on Transco's future capacity to expand its pipeline services, but the way should be left open for it to give more careful consideration to the end use factor in its decision. I must say that its previous consideration of this aspect of the matter seems to me to leave much to be desired, doubtless because of the over-all mistaken premises on which the Commission proceeded. In a reconsideration of the case upon correct premises, the air-pollution problem may take on a different significance, and whatever conclusions the Commission may reach on this score should in any event be accompanied with more convincing particularized findings. For the foregoing reasons I would vacate the judgment of the Court of Appeals and remand the case to the Commission for further proceedings.",deficiencies of the commission's report.
+209,118026,1,3,"• Colorado —Colo. Rev. Stat. §§ 13-21-102(1)(a) and (3) (1987) (as a main rule, caps punitive damages at amount of actual damages). • Connecticut —Conn. Gen. Stat. § 52-240b (1995) (caps punitive damages at twice compensatory damages in products liability cases). • Delaware —H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would cap punitive damages at greater of three times compensatory damages, or $250,000). • Florida —Fla. Stat. §§ 768.73(1)(a) and (b) (Supp. 1992) (in general, caps punitive damages at three times compensatory damages). • Georgia —Ga. Code Ann. § 51-12-5.1 (Supp. 1995) (caps punitive damages at $250,000 in some tort actions; prohibits multiple awards stemming from the same predicate conduct in products liability actions). • Illinois —H. 20, 89th Gen. Ass. 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (caps punitive damages at three times economic damages). • Indiana —H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (caps punitive damages at greater of three times compensatory damages, or $50,000). • Kansas —Kan. Stat. Ann. §§ 60-3701(e) and (f) (1994) (in general, caps punitive damages at lesser of defendant's annual gross income, or $5 million). • Maryland —S. 187, 1995 Leg. Sess. (introduced Jan. 27, 1995) (in general, would cap punitive damages at four times compensatory damages). • Minnesota —S. 489, 79th Leg. Sess., 1995 Reg. Sess. (introduced Feb. 16, 1995) (would require reasonable relationship between compensatory and punitive damages). • Nevada —Nev. Rev. Stat. § 42.005(1) (1993) (caps punitive damages at three times compensatory damages if compensatory damages equal $100,000 or more, and at $300,000 if the compensatory damages are less than $100,000). • New Jersey —S. 1496, 206th Leg., 2d Ann. Sess. (1995) (caps punitive damages at greater of five times compensatory damages, or $350,000, in certain tort cases). • North Dakota —N. D. Cent. Code § 32-03.2-11(4) (Supp. 1995) (caps punitive damages at greater of two times compensatory damages, or $250,000). • Oklahoma —Okla. Stat., Tit. 23, §§ 9.1(B)—(D) (Supp. 1996) (caps punitive damages at greater of $100,000, or actual damages, if jury finds defendant guilty of reckless disregard; and at greatest of $500,000, twice actual damages, or the benefit accruing to defendant from the injury-causing conduct, if jury finds that defendant has acted intentionally and maliciously). • Texas —S. 25, 74th Reg. Sess. (enacted Apr. 20, 1995) (caps punitive damages at twice economic damages, plus up to $750,000 additional noneconomic damages). • Virginia —Va. Code Ann. § 8.01-38.1 (1992) (caps punitive damages at $350,000).",Caps on Punitive Damages Awards
+210,118026,1,4,"• Arizona —H. R. 2279, 42d Leg., 1st Reg. Sess. (introduced Jan. 12, 1995) (would allocate punitive damages to a victims' assistance fund, in specified circumstances). • Florida —Fla. Stat. §§ 768.73(2)(a)—(b) (Supp. 1992) (allocates 35% of punitive damages to General Revenue Fund or Public Medical Assistance Trust Fund); see Gordon v. State, 585 So. 2d 1033, 1035-1038 (Fla. App. 1991), aff'd, 608 So. 2d 800 (Fla. 1992) (upholding provision against due process challenge). • Georgia —Ga. Code Ann. § 51-12-5.1(e)(2) (Supp. 1995) (allocates 75% of punitive damages, less a proportionate part of litigation costs, including counsel fees, to state treasury); see Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 540-543, 436 S. E. 2d 635, 637-639 (Ga. 1993) (upholding provision against constitutional challenge). • Illinois —Ill. Comp. Stat., ch. 735, § 5/2-1207 (1994) (permits court to apportion punitive damages among plaintiff, plaintiff's attorney, and Illinois Department of Rehabilitation Services). • Indiana —H. 1741, 109th Reg. Sess. (enacted Apr. 26, 1995) (subject to statutory exceptions, allocates 75% of punitive damages to a compensation fund for violent crime victims). • Iowa —Iowa Code § 668A.1(2)(b) (1987) (in described circumstances, allocates 75% of punitive damages, after payment of costs and counsel fees, to a civil reparations trust fund); see Shepherd Components, Inc. v. Brice PetridesDonohue & Assoc., Inc., 473 N. W. 2d 612, 619 (Iowa 1991) (upholding provision against constitutional challenge). • Kansas —Kan. Stat. Ann. § 60-3402(e) (1994) (allocates 50% of punitive damages in medical malpractice cases to state treasury). • Missouri —Mo. Rev. Stat. § 537.675 (1994) (allocates 50% of punitive damages, after payment of expenses and counsel fees, to Tort Victims' Compensation Fund). • Montana —H. 71, 54th Leg. Sess. (introduced Jan. 2, 1995) (would allocate 48% of punitive damages to state university system and 12% to school for the deaf and blind). • New Jersey —S. 291, 206th Leg., 1994-1995 1st Reg. Sess. (introduced Jan. 18, 1994); A. 148, 206th Leg., 1994— 1995 1st Reg. Sess. (introduced Jan. 11, 1994) (would allocate 75% of punitive damages to New Jersey Health Care Trust Fund). • New Mexico —H. 1017, 42d Leg., 1st Sess. (introduced Feb. 16, 1995) (would allocate punitive damages to LowIncome Attorney Services Fund). • Oregon —S. 482, 68th Leg. Ass. (enacted July 19, 1995) (amending Ore. Rev. Stat. §§ 18.540 and 30.925, and repealing Ore. Rev. Stat. § 41.315) (allocates 60% of punitive damages to Criminal Injuries Compensation Account). • Utah —Utah Code Ann. § 78-18-1(3) (1992) (allocates 50% of punitive damages in excess of $20,000 to state treasury).",Allocation of Punitive Damages to State Agencies
+211,118026,1,5,"• California —Cal. Civ. Code Ann. § 3295(d) (West Supp. 1995) (requires bifurcation, on application of defendant, of liability and damages phases of trials in which punitive damages are requested). • Delaware —H. R. 237, 138th Gen. Ass. (introduced May 17, 1995) (would require, at request of any party, a separate proceeding for determination of punitive damages). • Georgia —Ga. Code Ann. § 51-12-5.1(d) (Supp. 1995) (in all cases in which punitive damages are claimed, liability for punitive damages is tried first, then amount of punitive damages). • Illinois —H. 20, 89th Gen. Ass., 1995-1996 Reg. Sess. (enacted Mar. 9, 1995) (mandates, upon defendant's request, separate proceeding for determination of punitive damages). • Kansas —Kan. Stat. Ann. §§ 60-3701(a) and (b) (1994) (trier of fact determines defendant's liability for punitive damages, then court determines amount of such damages). • Missouri —Mo. Rev. Stat. §§ 510.263(1) and (3) (1994) (mandates bifurcated proceedings, on request of any party, for jury to determine first whether defendant is liable for punitive damages, then amount of punitive damages). • Montana —Mont. Code Ann. § 27-1—221(7) (1995) (upon finding defendant liable for punitive damages, jury determines the amount in separate proceeding). • Nevada —Nev. Rev. Stat. § 42.005(3) (1993) (if jury determines that punitive damages will be awarded, jury then determines amount in separate proceeding). • New Jersey —N. J. Stat. Ann. §§ 2A:58C-5(b) and (d) (West 1987) (mandates separate proceedings for determination of compensatory and punitive damages). • North Dakota —N. D. Cent. Code § 32-03.2-11(2) (Supp. 1995) (upon request of either party, trier of fact determines whether compensatory damages will be awarded before determining punitive damages liability and amount). • Oklahoma —Okla. Stat., Tit. 23, §§ 9.1(B)—(D) (Supp. 1995-1996) (requires separate jury proceedings for punitive damages); S. 443, 45th Leg., 1st Reg. Sess. (introduced Jan. 31, 1995) (would require courts to strike requests for punitive damages before trial, unless plaintiff presents prima facie evidence at least 30 days before trial to sustain such damages; provide for bifurcated jury trial on request of defendant; and permit punitive damages only if compensatory damages are awarded). • Virginia —H. 1070, 1994-1995 Reg. Sess. (introduced Jan. 25, 1994) (would require separate proceedings in which court determines that punitive damages are appropriate and trier of fact determines amount of punitive damages).",Mandatory Bifurcation of Liability and Punitive Damages Determinations
+212,86726,1,1,"The jury were instructed, if they found for the plaintiffs, to give damages that would remunerate them for the loss necessarily incurred in raising the boat, and repairing her; and also, for the use of the boat during the time necessary to make the repairs, and fit her for business. By the use of the boat we understand what she would produce to the plaintiffs by the hiring or chartering of her to run upon the river in the business in which she had been usually engaged The general rule in regulating damages in cases of collision is to allow the injured party an indemnity to the extent of the loss sustained. This general rule is obvious enough; but there is a good deal of difficulty in stating the grounds upon which to arrive, in all cases, at the proper measure of that indemnity. The expenses of raising the boat, and of repairs may, of course, be readily ascertained, and in respect to the repairs, no deduction is to be made, as in insurance cases, for the new materials in place of the old. The difficulty lies in estimating the damage sustained by the loss of the service of the vessel while she is undergoing the repairs. That an allowance short of some compensation for this loss would fail to be an indemnity for the injury is apparent. This question was directly before the court of admiralty in England, in the case of the Gazelle, decided by Dr. Lushington, in 1844. 2 W. Robinson, 279. That was a case of collision, and in deciding it, the court observed, that the party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of the repairs, and furnishing the new articles. In fixing the amount of the damages to be paid for the detention, the court allowed the gross freight, deducting so much as would, in ordinary cases, be disbursed on account of the ship's expenses in earning it. A case is referred to, decided in the common-law courts, in which the gross freight was allowed without any deduction for expenses, which was disapproved as inequitable and exceeding an adequate compensation, and the qualification we have stated laid down. This rule may afford a very fair indemnity in cases where the repairs are completed within the period usually occupied in the voyage in which the freight is to be earned. But, if a longer period is required, it obviously falls short of an adequate allowance. Neither will it apply where the vessel is not engaged in earning freight at the time. The principle, however, governing the court in adopting the freight which the vessel was in the act of earning, as a just measure of compensation in the case, is one of general application. It looks to the capacity of the vessel to earn freight, for the benefit of the owner, and consequent loss sustained while deprived of her service. In other words, to the amount she would earn him on hire. It is true, in that case, the ship was engaged in earning freight at the time of the collision; and the loss, therefore, more fixed, and certain than in the case where she is not at the time under a charter-party, and where her earnings must in some measure depend upon the contingency of obtaining for her employment. If, however, we look to the demand in the market for vessels of the description that has been disabled, and to the price there, which the owner could obtain or might have obtained for her hire as the measure of compensation, all this uncertainty disappears. If there is no demand for the employment, and, of course, no hire to be obtained, no compensation for the detention during the repairs will be allowed, as no loss would be sustained. But, if it can be shown, that the vessel might have been chartered during the period of the repairs, it is impossible to deny that the owner has not lost in consequence of the damage, the amount which she might have thus earned. The market price, therefore, of the hire of the vessel applied as a test of the value of the service will be, if not as certain as in the case where she is under a charter-party, at least, so certain that, for all practical purposes in the administration of justice, no substantial distinction can be made. It can be ascertained as readily, and with as much precision as the price of any given commodity in the market; and affords as clear a rule for estimating the damage sustained on account of the loss of her service, as exists in the case of damage to any other description of personal property, of which the party has been deprived. In the case of the Gazelle, for ought that appears, the allowance of the freight afforded a full indemnity for the detention of the vessel while undergoing the repairs. This would be so, as already stated, if they were made within the period she would have been engaged in earning it. If it were otherwise, it is certain, that the indemnity allowed fell short of the rule laid down under which it was made, which was, that the party was entitled to an adequate compensation for any loss he might sustain for the detention of the vessel during the period which was necessary for the completion of the repairs and furnishing the new articles. The allowance of the freight she was earning at the time was but a mode of arriving at the loss in the particular case under the general rule thus broadly stated; and afforded, doubtless, full indemnity. We are of opinion, therefore, that the rule of damages laid down by the court below was the correct one, and is properly applicable in all similar cases. There was no question made in respect to the freight of the vessel, and hence the general principle stated was applicable, irrespective of this element, as influencing the result. There were some other questions raised in the case of a technical character, and urged on the argument. But we deem it sufficient to say, that they are so obviously untenable, that it is not important to notice them specially. We are of opinion, therefore, the judgment of the court below was right, and should be affirmed.",As to the question of damages.
+213,87289,1,1,"1. The maximum restriction found in the twelfth section of the colonization law of 1824 has only the effect of forbidding the granting of more than eleven leagues in one grant. Any other construction is discountenanced by the policy and objects of that law; it could make no difference how many grants or how much land one man had, if he occupied and cultivated them. 2. The maximum restriction did not curtail Micheltorena's power. That power was extraordinary, and extended beyond what the law of 1824 gave; it applied expressly to colonization, and was coextensive with that of Santa Anna, which was de facto if not de jure dictatorial. If Santa Anna's power was not dictatorial, he at least thought so, and Micheltorena thought so, and Micheltorena thought himself clothed with it, and exercised it to dispense with the maximum restriction. Hartnell thought so too, and gave the consideration of the grant, occupation and improvement. When the official held out that he possessed the power to grant, this court has confirmed, though he had no such power. 3. The estate was only voidable at the worst. It cannot be avoided in this proceeding. Every right or title unimpaired at date of cession, is protected. Act 3d March, 1851, secs. 8, 11. 4. The estate is not voidable now in any proceeding. The law by which it could have been avoided is abrogated. It was political in its nature, and was abrogated upon the cession 5. The grant must be confirmed for all the land. It is a patent. It can only be contradicted by matter of record. There is no matter of record which has that effect. The non-approval by the Departmental Assembly, as has been shown, though it may be regarded as matter of records, is not effectual to contradict it, because that act is not competent to divest the estate. The other patent, (for Todos Santos y San Antonio,) which disclosed the fact that Hartnell had already received a large quantity of land, cannot be entertained as evidence for that purpose. It is dehors the patent for the Cosumnes land. If our patent for Cosumnes granted more than eleven leagues, then the illegality might be considered; but being legal on its face, it cannot be invalidated but by judgment in denouncement or office found. Our allegation that we have had more land has no effect, for the question is not involved in the case. 4 Bibb, p. 330. 7 B. Monroe, p. 81. 6. The grant must be confirmed, because the court cannot know whether the grant for Todos Santos y San Antonio will be confirmed or not. The decree of the District Court dismissed so much of the appeal as affected Todos Santos y San Antonio, as has been stated; and if prosecuted, if had to be done in the southern district of California. Whether any appeal has been taken from the land commission's decree relative to that grant does not appear, nor can appear, as no new evidence can be taken here. 7. The maximum restriction did not affect the validity of the grant. On the contrary, the grant was good in every part. No invalidity could attach to the grant as affecting any particular portion of the land, until some proceeding, diminishing the quantity, and segregating the portion withdrawn from the residue, was had. 8. The maximum restriction did not apply to Mexican citizens. Mr. Justice CATRON delivered the opinion of the court. 1 Hartnell got a grant from Governor Alvarado, dated June 28, 1841, for a body of land lying in Lower California. The quantity is not specified in the grant, the out-boundaries only being designated. 2 In November, 1844, he obtained another grant for eleven square leagues, lying in Upper California. Both claims were duly set forth in a petition seeking confirmation, before the board of land commissioners, and they were confirmed, with modifications the lower grant to the extent of five leagues, and the upper for six leagues. 3 From this decree the parties appealed, and brought their cause to the District Court, held at San Francisco. That court, sitting in the upper district, had no jurisdiction to reexamine the judgment of the board, as respected the five leagues confirmed in the district of Lower California; and as to that tract, the appeal was dismissed, and therefore that title stands confirmed. 4 There being cross appeals, the question arises here, whether the upper grant should be confirmed for six leagues or for eleven—the grant of the Governor calling for the latter quantity. 5 The District Court adjudged six leagues as the proper quantity; and on this single point the cause comes before us—both parties being satisfied with the decree below in all other respects. 6 The narrow question is, had the Governor of California power, in 1844, to grant gratuitously, for the purposes of tillage, inhabitancy, and pasturage, more than eleven leagues of land to any one person? Section 12 of the law of 1824 provides, that it shall not be permitted to unite in one hand, as property, more than one league of irrigable land, four leagues of farming land, not irrigable, and six for stock raising. 7 Both titles of Hartnell were brought before the Departmental Assembly. That body held the law to be, that the Governor could not 'unite in the same hand' more than eleven leagues, although it might be in different tracts; and so reported to him. 8 The public domain was the property of the Mexican nation, and those who were enabled to displace that title, separate portions of it from the public lands, and vest such portions into individual proprietors by perfected titles, could only do so in the exercise of sovereign power, because the public title was a sovereign right; and agents who assumed to exercise this authority must show that they represented the nation. The Governors of California do not show that they did represent the nation, so as to conclusively bind it; to have this effect, the Governor's grant must have the concurrence of the Departmental deputation. It follows, that the Assembly was the controlling power, and could reform or nullify the Governor's grant; and having reformed it to the extent of five leagues in the case before us, the claimant came in under the treaty of peace with Mexico, having no interest in these five leagues. 8 How., 303, 304. 9 We have no doubt that the Departmental Assembly, the board of commissioners, and the District Court, construed the law of 1824 (section 12) correctly, and order the decree below to be affirmed in all its parts.","But if the court do entertain the question, we say:"
+214,110461,2,1,"Hein Park, a small residential community in Memphis, Tenn., is bounded on three sides by thoroughfares and on the west by the campus of Southwestern University. West Drive is a two-lane street about a half mile long passing through the center of Hein Park. Its southern terminus is a short distance from an entrance to Overton Park, a large recreation area containing, among other facilities, the municipal zoo. [2] Its northern terminus is at the intersection of Jackson Ave. and Springdale St., two heavily traveled four-lane avenues. West Drive is one of three streets that enter Hein Park from the north; two streets enter from the east. The closing will have some effect on both through traffic and local traffic. Prior to the closing, a significant volume of traffic southbound on Springdale St. would continue south on West Drive and then—because of the location of Overton Park to the south of Hein Park—make either a right or a left turn to the next through street a few blocks away, before resuming the southerly route to the center of the city. The closing of West Drive will force this traffic to divert to the east or west before entering Hein Park, instead of when it leaves, but the closing will not make the entire route any longer. With respect to local traffic, the street closing will add some distance to the trip from Springdale St. to the entrance to Overton Park and will make access to some homes in Hein Park slightly less convenient. The area to the north of Hein Park is predominantly black. All of the homes in Hein Park were owned by whites when the decision to close the street was made.",Geography
+215,110461,2,2,"In 1970, residents of Hein Park requested the city to close four streets leading into the subdivision. After receiving objections from the police, fire, and sanitation departments, the city denied the request. [3] In its report regarding the application, the city's Traffic Engineering Department noted that much of the traffic through the subdivision could be eliminated by closing West Drive at Jackson Ave. Trial Exhibit 14. Thereafter, on July 9, 1973, members of the Hein Park Civic Association filed with the Memphis and Shelby County Planning Commission a formal Application to Close Streets or Alleys seeking permission to close West Drive for 25 feet south of Jackson Ave. See Trial Exhibit 13, App. 135. The application was signed by the two property owners abutting both Jackson Ave. and West Drive and all but one of the other West Drive homeowners on the block immediately south of Jackson Ave. Ibid. [4] The stated reasons for the closing were: (1) Reduce flow of through traffic using subdivision streets. (2) Increase safety to the many children who live in the subdivision and those who use the subdivision to walk to Snowden Junior High School. (3) Reduce `traffic pollution' in a residential area, e. g., noise, litter, interruption of community living. Ibid. After receiving the views of interested municipal departments, the County Planning Commission on November 1, 1973, recommended that the application be approved with the conditions that the applicants provide either an easement for existing and future utility company facilities or the funds to relocate existing facilities and that the closure provide clearance for fire department vehicles. Trial Exhibit 4, App. 130. The City Council held a hearing at which both proponents and opponents of the proposal presented their views, and the Council adopted a resolution authorizing the closing subject to the conditions recommended by the Planning Commission. See Trial Exhibit 26. The city reconsidered its action and held additional hearings on later dates but never rescinded its resolution. [5] See Trial Exhibits 27-30, 41.",City Approval
+216,110461,2,3,"In a complaint filed against the city and various officials in the United States District Court for the Western District of Tennessee on April 1, 1974, three individuals and two civic associations, suing on behalf of a class of residents north of Jackson Ave. and west of Springdale St., alleged that the closing was unconstitutional and prayed for an injunction requiring the city to keep West Drive open for through traffic. [6] The District Court granted a motion to dismiss, holding that the complaint, as amended, failed to allege any injury to the plaintiffs' own property or any disparate racial effect, [7] and that they had no standing as affected property owners to raise procedural objections to the city's action. [8] The United States Court of Appeals for the Sixth Circuit reversed. The court first noted that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief. 535 F. 2d 976, 978. The court concluded that respondents' complaint, fairly construed, alleged that the city had conferred certain benefits— to wit, the privacy and quiet of an exclusive dead-end street—on white residents that it refused to confer on similarly situated black residents. Ibid. Accordingly, the court held that if respondents could prove that city officials conferred the benefit of a closed street on West Drive residents because of their color, respondents would have a valid claim under either 42 U. S. C. § 1982 or § 1983. 535 F. 2d, at 979. [9] Following the remand, the case was transferred to Judge McRae for trial. Respondents amended their pleadings and, in pretrial discovery, reviewed all street closings in Memphis during the prior 10-year period as well as the entire record concerning the closing of West Drive. An elaborate pretrial order entered on February 9, 1978, identified three contested issues of fact: (a) Whether the defendants, by closing West Drive, have conferred certain benefits on white residents of West Drive that they have refused to confer on similarly situated black neighborhoods because of their color. (b) Whether a discriminatory purpose was a motivating factor in the decision of the City Council to close West Drive. (c) Whether the defendants and their agents complied with the normal procedural sequence in processing the application to close a portion of West Drive. If not, the extent to which they failed to comply. App. 87. After a full trial Judge McRae filed a detailed memorandum decision in which he found against the respondents on each of the three contested issues of fact. He specifically concluded that the action of the City Council closing West Drive did not create a benefit for white citizens which has been denied black citizens; [10] that racially discriminatory intent or purpose had not been proved; [11] and that the city had not departed significantly from normal procedures in authorizing the closing. [12] Accordingly, the District Court entered judgment for the city. The Court of Appeals did not reject any of the District Court's findings of fact. The Court of Appeals did hold, however, that Judge McRae had erred by limiting his focus to the issue of whether the city had granted a street closing application made by whites while denying comparable benefits to blacks. 610 F. 2d, at 400-401. Although the Court of Appeals recognized that the reasoning of its earlier opinion could have induced such a narrow focus, and that the record supported Judge McRae's findings on this issue, the court held that the respondents need not show that the city had denied street-closing applications submitted by black neighborhoods to show a violation of § 1982. 610 F. 2d, at 400-402. Rather, the court held that respondents could demonstrate that this particular street closing was a badge of slavery under § 1982 and the Thirteenth Amendment without reference to the equal treatment issue. [13] The Court of Appeals recognized that a street closing may be a legitimate and effective means of preserving the residential character of a neighborhood and protecting it from the problems caused by excessive traffic. 610 F. 2d, at 402. The Court of Appeals concluded, however, that relief under § 1982 was required here by the facts: (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a barrier was to be erected precisely at the point of separation of these neighborhoods and would undoubtedly have the effect of limiting contact between them; (3) that the closing was not part of a citywide plan but rather was a unique step to protect one neighborhood from outside influences which the residents considered to be `undesirable'; and (4) that there was evidence of an economic depreciation in the property values in the predominantly black residential area. [14] Before addressing the legal issues, we consider the extent to which each of these conclusions is supported by the record and the District Court's findings.",Litigation
+217,110461,1,4,"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. In this case respondents challenge the conferring of a benefit upon white citizens by a measure that places a burden on black citizens as an unconstitutional badge of slavery. Relying on Justice Black's opinion for the Court in Palmer v. Thompson, 403 U. S. 217, the city argues that in the absence of a violation of specific enabling legislation enacted pursuant to § 2 of the Thirteenth Amendment, any judicial characterization of an isolated street closing as a badge of slavery would constitute the usurpation of a law-making power far beyond the imagination of the amendment's authors. Id., at 227. [37] Pursuant to the authority created by § 2 of the Thirteenth Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the badges and incidents of slavery. [38] The exercise of that authority is not inconsistent with the view that the Amendment has self-executing force. As the Court noted in Jones v. Alfred H. Mayer Co., 392 U. S., at 439: `By its own unaided force and effect,' the Thirteenth Amendment `abolished slavery' and established universal freedom.' Civil Rights Cases, 109 U. S. 3, 20. Whether or not the Amendment itself did any more than that—a question not involved in this case—it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. [39] In Jones, the Court left open the question whether § 1 of the Amendment by its own terms did anything more than abolish slavery. [40] It is also appropriate today to leave that question open because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery. We begin our examination of respondents' Thirteenth Amendment argument by reiterating the conclusion that the record discloses no racially discriminatory motive on the part of the City Council. [41] Instead, the record demonstrates that the interests that did motivate the Council are legitimate. Proper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests: the motorist's interest in unhindered access to his destination, the city's interest in the efficient provision of municipal services, the commercial interest in adequate parking, the residents' interest in relative quiet, and the pedestrians' interest in safety. Local governments necessarily exercise wide discretion in making the policy decisions that accommodate these interests. In this case the city favored the interests of safety and tranquility. As a matter of constitutional law a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events. The decision to reduce the flow of traffic on West Drive was motivated, in part, by an interest in the safety of children walking to school. [42] That interest is equally legitimate whether it provides support for an arguably unnecessary preventive measure or for a community's reaction to a tragic accident that adequate planning might have prevented. See Thomas Cusack Co. v. Chicago, 242 U. S. 526. The residential interest in comparative tranquility is also unquestionably legitimate. That interest provides support for zoning regulations, designed to protect a quiet place where yards are wide, people few, and motor vehicles restricted. . . . Village of Belle Terre v. Boraas, 416 U. S. 1, 9; Arlington County Board v. Richards, 434 U. S. 5, and for the accepted view that a man's home is his castle. The interest in privacy has the same dignity in a densely populated apartment complex, cf. Payton v. New York, 445 U. S. 573, or in an affluent neighborhood of single-family homes. [43] In either context, the protection of the individual interest may involve the imposition of some burdens on the general public. Whether the individual privacy interests of the residents of Hein Park, coupled with the interests in safety, should be considered strong enough to overcome the more general interest in the use of West Drive as a thoroughfare is the type of question that a multitude of local governments must resolve every day. Because there is no basis for concluding that the interests favored by the city in its decision were contrived or pretextual, the District Court correctly concluded that it had no authority to review the wisdom of the city's policy decision. See Railway Express Agency, Inc. v. New York, 336 U. S. 106, 109. The interests motivating the city's action are thus sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on the liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. The argument that the closing violates the Amendment must therefore rest, not on the actual consequences of the closing, but rather on the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black. But the inconvenience of the drivers is a function of where they live and where they regularly drive—not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation—whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign—may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin. This case does not disclose a violation of any of the enabling legislation enacted by Congress pursuant to § 2 of the Thirteenth Amendment. To decide the narrow constitutional question presented by this record we need not speculate about the sort of impact on a racial group that might be prohibited by the Amendment itself. We merely hold that the impact of the closing of West Drive on nonresidents of Hein Park is a routine burden of citizenship; it does not reflect a violation of the Thirteenth Amendment. The judgment of the Court of Appeals is Reversed.","In relevant part, the Thirteenth Amendment provides:"
+218,110458,2,1,"2. Treatment should be designed to maximize an individual's potential and should be provided in the setting that is least restrictive of the person's personal liberty. 3. The State and Federal Governments have an obligation to assure that public funds are not provided to institutions or programs that do not provide appropriate treatment, services and habilitation or do not meet minimum standards of care in six specific respects such as diet, dental care, and the use of force or chemical restraints. 4. Rehabilitative programs should meet standards designed to assure the most favorable possible outcome for patients, and these standards should be appropriate to the needs of those being served, depending on the type of institution involved. [6] As clearly as words can, § 6010 (1) declares that the developmentally disabled have the right to appropriate treatment, services, and habilitation. The ensuing parts of § 6010 implement this basic declaration. Section 6010 (3), for example, obligates the Federal and State Governments not to spend the public funds on programs that do not carry out the basic requirement of § 6010 (1) and, more specifically, do not meet minimum standards with respect to certain aspects of treatment and custody. Sections 6010 (2) and (4) are phrased in less mandatory terms, but the former unmistakably states a preference for treatment in the least restrictive environment and the latter for establishing standards for assuring the appropriate care of the developmentally disabled in relation to the type of institution involved. Both sections, by delineating in some respects the meaning of appropriate treatment, services, and habilitation, implement the basic rights that the developmentally disabled must be afforded for the purpose of the programs envisioned by the Act. Hence, neither section could be ignored by the Secretary in carrying out his duties under the statute. Standing on its own bottom, therefore, § 6010 cannot be treated as only wishful thinking on the part of Congress or as playing some fanciful role in the implementation of the Act. The section clearly states rights which the developmentally disabled are to be provided as against a participating State. But § 6010 does not stand in isolation. Other provisions of the Act confirm the view that participating States must take account of § 6010 and that the section is an integral part of an Act cast in the pattern of extending aid conditioned on state compliance with specified conditions. Section 6063 (a) requires that for a State to take advantage of the Act, it must have a plan submitted to and approved by the Secretary. . . . Section 6063 (b) (1976 ed., Supp. III), which is entitled Conditions for Approval, states that [i]n order to be approved by the Secretary under this section, a State plan for the provision of services and facilities for persons with developmental disabilities must be filed; and in its original form, § 6063 required the plan to satisfy the conditions stated in some 30 numbered paragraphs. The 24th specification was that the plan must contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities . . . who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected. Any doubts that the human rights referred to in § 6063 (b) (24) corresponded to those specified in § 6010 were removed in 1978 when § 6063 (b) was amended to restate the conditions which a plan must satisfy. Section 6063 (b) (5) (C) (1976 ed., Supp. III) now provides: The plan must contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities (especially those persons without familial protection) who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to the rights of the developmentally disabled). Pennsylvania has submitted a plan under § 6063, that is, a plan providing services for the developmentally disabled in Pennsylvania. The Court states that the plan has been approved and that funds have been allocated to the State. These funds will necessarily be supporting Pennsylvania's programs for providing treatment, services, or habilitation within the meaning of § 6063 (b) (5) (C); and under the express terms of that section, Pennsylvania is required to respect the § 6010 rights of the developmentally disabled in its state institutions, including Pennhurst, and to give the Secretary adequate assurances in this respect. This is true whether or not Pennhurst itself directly receives any share of the State's allocation. It should also be noted that § 6063 (b) (3) (A) (1976 ed., Supp. III) provides that the funds paid to the state under § 6062 of this title will be used to make a significant contribution toward strengthening services for persons with developmental disabilities through agencies in the various political subdivisions of the State. Thus, funds received under the Act were intended to result in the improvement of care at institutions like Pennhurst. [7]","Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation."
+219,111468,2,1,"The Court believes this interpretation better harmonizes the two clauses of § 17 with the structure of the entire Act. Ante, at 252. The Court's interpretation, however, would render wholly superfluous § 16 of the Act, which gave explicit congressional authorization to conveyances of Pueblo lands in one extremely narrow set of circumstances. Specifically, § 16 authorized the sale of land found by the Pueblo Lands Board to belong rightfully to a Pueblo if (1) the land be situate among lands adjudicated or otherwise determined in favor of non-Indian claimants and apart from the main body of the Indian land; (2) the Pueblo and the Secretary concurred in the sale; and (3) the land went to the highest bidder for cash. [17] The purpose of this provision was to get the Indian holdings contiguous to one another. 1923 Senate Hearings, at 154 (Sen. Jones of New Mexico). The Court argues vaguely that § 16 was probably considered an isolated element of the Act, and that it somehow uniquely enabled the Secretary to take the initiative in urging consolidation of Pueblo lands. Ante, at 253, n. 26. This unsupported argument is untenable. As the Solicitor for the Department of the Interior emphasized just last year, [i]t is inconceivable that Congress would have authorized the sale of Pueblo lands under the very narrow circumstances of Section 16, and then one section later would have empowered the Pueblos to alienate their lands for any purpose and with no standards or conditions other than Secretarial approval. Such an irrational result could not have been intended by Congress. [18] The error of the Court's interpretation is further exposed by the fact that, since 1924, Congress recurrently has enacted legislation affirmatively authorizing much narrower conveyances of interests in Pueblo lands — legislation that would have had no rational basis if, as the Court concludes, Congress already had authorized unlimited conveyances of Pueblo lands simply upon secretarial approval. For example: (1) In 1928, in response to concern that the existing easement and right-of-way statutes might not technically be applicable to Pueblo lands, Congress enacted legislation clarifying that nine of those statutes, along with the basic Acts of Congress cited in such sections, were fully applicable to the Pueblo Indians of New Mexico and their lands. [19] These provisions included numerous procedural and financial safeguards governing such conveyances. (2) Congress in 1933 extended the narrow provisions of § 16 to authorize the sale by the Pueblos and the Secretary of any land that had been taken from a non-Indian claimant by the Pueblo Lands Board. [20] Congress' purpose was to remove the restrictions in the sale of [these] lands; [21] the legislation was designed to authorize alienation of Pueblo lands only in a limited number of situations where necessary to consolidate a tribe's land base. [22] (3) In 1948, Congress authorized the Secretary to grant rights-of-way for all purposes across the lands belonging to the Pueblo Indians in New Mexico, subject to the consent of the proper tribal officials of organized tribes. [23] (4) In 1949, Congress authorized the Pueblos and the Secretary to exchange certain Pueblo lands for those in the public domain [f]or the purpose of consolidation of tribal lands. [24] (5) Similar legislation was enacted in 1961 [f]or the purpose of improving the land tenure pattern and consolidating Pueblo Indian lands. [25] (6) In 1968, Congress authorized the Cochiti, Pojoaque, Tesuque, and Zuni Pueblos to lease their lands for specified purposes for a term of not to exceed ninety-nine years, except for grazing leases which could not exceed 10 years. [26] This authorization created an exception for these Tribes from the statutory provisions applicable to the other Pueblo Tribes, which limit Indian leasing of restricted lands to 25 years. [27] (7) Congress in 1976 enacted legislation to clarify the full applicability of the general right-of-way provisions to the Pueblos; [28] the purpose was to place the New Mexico Pueblo Indians in the same position relative to grants of rights-of-way across their lands as other federally recognized Indian tribes. [29] Each of these enactments would have been meaningless if § 17 already authorized Pueblo leases of unlimited duration and even outright sales of land. The enactments of 1924, 1933, 1947, and 1961 clearly demonstrate that Congress has authorized alienation of Pueblo lands only where necessary to consolidate the tribal base and to improve land tenure patterns — a carefully crafted effort that the Court's interpretation today annuls. Similarly, the enactments of 1928, 1948, 1968, and 1976 demonstrate Congress' intent that leases and rights-of-way on Pueblo lands be subject to the same procedural and financial safeguards that govern such conveyances on Indian lands generally — an intent that is irreconcilable with the notion that § 17 created an entirely independent avenue for alienation of Pueblo title subject only to standardless secretarial approval.",Statutory Structure
+220,111468,2,3,"The Court explains, however, that the uniform contemporaneous view of executive officials commands  `very great respect.'  Ante, at 254. Even if this were an appropriate case to defer to a consistent administrative construction, [36] the checkered history of the Department of the Interior's construction of § 17 demonstrates that the Court's purported deference is wholly unwarranted. We have recognized previously that the weight of an administrative interpretation will depend, among other things, upon `its consistency with earlier and later pronouncements' of an agency. Morton v. Ruiz, 415 U. S. 199, 237 (1974), quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See also FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 38-39 (1981); United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694, 718-719 (1975). The record demonstrates that the Department's construction of § 17 has swung wildly back and forth over the past 60 years. For the first two years after the Pueblo Lands Act was enacted, the Secretary routinely applied the general right-of-way statutes to the Pueblo, as he had prior to the Act. [37] Among the numerous rights-of-way granted pursuant to these restrictive provisions were 50-year easements to the petitioner Mountain States Telephone and Telegraph Company. [38] Never was there even a hint that § 17 might have worked any change in the law or in the narrow exceptions to Congress' policy against alienation. In 1926, however, a new Special Assistant to the Attorney General, George A. H. Fraser, concluded that the existing right-of-way statutes probably did not cover the Pueblos: It is not quite certain that [the statutes do] not include them, but it looks as though [they] did not. [39] Moreover, Fraser concluded that the first clause of § 17 — prohibiting any alienation except as may hereafter be provided by Congress — meant literally that no transfer of any interest in Pueblo land could occur until Congress acted at some undetermined point in the future. [40] Fraser accordingly began filing trespass suits pursuant to the Pueblo Lands Act against railroad companies and utilities that had rights-of-way across Pueblo lands. [41] These companies, obviously, were not anxious to submit to extended litigation. A representative of one of them stated that it was essential to find a method to get easements and rights-of-way railroaded thru the federal bureaucracy with a minimum of delay. [42] The record clearly shows that the construction of § 17 to permit Pueblo alienation was developed, not by a Government official, but by an attorney for a Chicago bond house underwriting one of the railroads. [43] Attorneys with the Office of Indian Affairs believed this new interpretation was doubtful and inconsistent with the underlying premises of the Pueblo Lands Act. [44] Fraser himself thought it was inconsistent to authorize the Pueblos to convey, even subject to an approval, which must usually be based on the recommendation of some local official who may or may not be fully informed and disinterested. [45] Nevertheless, Fraser recommended and obtained the Secretary's approval of this approach on the theory that the general good would be served by acquiescing rather than by urging the doubts suggested by Sec. 17. [46] Agency officials, however, continued to believe the interpretation was doubtful. [47] From 1926 until 1933, 55 rights-of-way were obtained by this method. [48] Many of the grantees would otherwise have been forced to defend quiet title suits under the Pueblo Lands Act. By acquiring deeds directly from the Pueblos, they were able either to avoid litigation or to be dismissed out as defendants, as was the petitioner in this case. [49] Fraser described this method as the cheapest and easiest way of getting rid of controversies involving Pueblo lands. [50] There usually was no difficulty . . . at all in persuading the Pueblos to sign such deeds; [51] a carload of lumber was sometimes thrown in to sweeten the deal. [52] As the Solicitor for the Department of the Interior recently observed, this construction of § 17 frequently resulted in the outright avoidance of clearly applicable statutes that would have provided far greater procedural and financial protection to the Pueblos than a process that involved the mere approval of an existing agreement negotiated by a tribe. [53] Cf. United States v. Locke, 471 U. S. 84, 124, n. 12 (1985) (STEVENS, J., dissenting) (criticizing the Department of the Interior's use of every technical construction of an ambiguous statute to enable the suck[ing] up of property much as a vacuum cleaner, if not watched closely, will suck up jewelry or loose money). Section 17 was used only sporadically from the 1920's to the 1950's. From 1926 to 1933 there were 55 approvals pursuant to its terms; from 1936 to 1944 there were 13; from 1953 to 1959 there were 11. [54] Section 17 has never been used since 1959 to authorize any Pueblo conveyance. [55] On the other hand, since the 1920's at least 779 rights-of-way over Pueblo lands have been obtained pursuant to the generally applicable right-of-way statutes and in accordance with the strict safeguards contained therein. [56] In the 1940's, the Solicitor for the Department of the Interior concluded that § 17 did not authorize the acquisition of rights-of-way and that any such acquisitions must be made pursuant to the general statutes. [57] Nevertheless, § 17 occasionally was invoked thereafter where a small amount of acreage [was] involved and in order to avoid considerable work for . . . the agency. [58] Consistent with the views of the Department in recent generations, the Department's Solicitor concluded last year that Congress did not intend Section 17 to be construed as authorizing the alienation of Pueblo lands, that the contrary view was irrational, and that the courts in this case had been correct to disregard the Department's [earlier] interpretation of that section. [59] And as the Government has emphasized before this Court, the earlier administrative construction — such as it was — applied only to rights-of-way except for one or two isolated incidents, and therefore cannot reasonably support an interpretation of § 17 that would generally authorize outright alienation of Pueblo lands. [60] The Court's notion of deference to agency expertise in an Indian case, then, appears to go something like this: where a proffered construction of a statute was not followed for two years but was then advocated by private attorneys and acquiesce[d] in by the Government as a matter of convenience; where that construction was then used to avoid the fiduciary safeguards of other legislation but withered away after a decade or two; where the construction was followed in less than 10% of the cases to which it could have been applied; where the construction was rejected by the agency more than 40 years ago and branded irrational by the agency's top legal officer just last year; and where the Government has urged that the construction be given a narrow compass at most, this Court as a matter of deference to such a uniform construction will adopt the most extreme version of that construction as the law of the land. [61]",Administrative Construction
+221,118161,2,1,"Ronald Elwell was a GM employee from 1959 until 1989. For 15 of those years, beginning in 1971, Elwell was assigned to the Engineering Analysis Group, which studied the performance of GM vehicles, most particularly vehicles involved in product liability litigation. Elwell's studies and research concentrated on vehicular fires. He assisted in improving the performance of GM products by suggesting changes in fuel line designs. During the course of his employment, Elwell frequently aided GM lawyers engaged in defending GM against product liability actions. Beginning in 1987, the Elwell-GM employment relationship soured. GM and Elwell first negotiated an agreement under which Elwell would retire after serving as a GM consultant for two years. When the time came for Elwell to retire, however, disagreement again surfaced and continued into 1991. In May 1991, plaintiffs in a product liability action pending in Georgia deposed Elwell. The Georgia case involved a GM pickup truck fuel tank that burst into flames just after a collision. During the deposition, and over the objection of counsel for GM, Elwell gave testimony that differed markedly from testimony he had given when serving as an in-house expert witness for GM. Specifically, Elwell had several times defended the safety and crashworthiness of the pickup's fuel system. On deposition in the Georgia action, however, Elwell testified that the GM pickup truck fuel system was inferior in comparison to competing products. A month later, Elwell sued GM in a Michigan County Court, alleging wrongful discharge and other tort and contract claims. GM counterclaimed, contending that Elwell had breached his fiduciary duty to GM by disclosing privileged and confidential information and misappropriating documents. In response to GM's motion for a preliminary injunction, and after a hearing, the Michigan trial court, on November 22, 1991, enjoined Elwell from consulting or discussing with or disclosing to any person any of General Motors Corporation's trade secrets[,] confidential information or matters of attorney-client work product relating in any manner to the subject matter of any products liability litigation whether already filed or [to be] filed in the future which Ronald Elwell received, had knowledge of, or was entrusted with during his employments with General Motors Corporation. Elwell v. General Motors Corp., No. 91-115946NZ (Wayne Cty.) (Order Granting in Part, Denying in Part Injunctive Relief, pp. 1-2), App. 9-10. In August 1992, GM and Elwell entered into a settlement under which Elwell received an undisclosed sum of money. The parties also stipulated to the entry of a permanent injunction and jointly filed with the Michigan court both the stipulation and the agreed-upon injunction. The proposed permanent injunction contained two proscriptions. The first substantially repeated the terms of the preliminary injunction; the second comprehensively enjoined Elwell from testifying, without the prior written consent of General Motors Corporation, either upon deposition or at trial, as an expert witness, or as a witness of any kind, and from consulting with attorneys or their agents in any litigation already filed, or to be filed in the future, involving General Motors Corporation as an owner, seller, manufacturer and/or designer of the product(s) in issue. Order Dismissing Plaintiff's Complaint and Granting Permanent Injunction (Wayne Cty., Aug. 26, 1992), p. 2, App. 30. To this encompassing bar, the consent injunction made an exception: [This provision] shall not operate to interfere with the jurisdiction of the Court in . . . Georgia [where the litigation involving the fuel tank was still pending]. Ibid. (emphasis added). No other noninterference provision appears in the stipulated decree. On August 26, 1992, with no further hearing, the Michigan court entered the injunction precisely as tendered by the parties. [1] Although the stipulated injunction contained an exception only for the Georgia action then pending, Elwell and GM included in their separate settlement agreement a more general limitation. If a court or other tribunal ordered Elwell to testify, his testimony would in no way support a GM action for violation of the injunction or the settlement agreement: `It is agreed that [Elwell's] appearance and testimony, if any, at hearings on Motions to quash subpoena or at deposition or trial or other official proceeding, if the Court or other tribunal so orders, will in no way form a basis for an action in violation of the Permanent Injunction or this Agreement.'  Settlement Agreement, p. 10, as quoted in 86 F. 3d 811, 820, n. 11 (CA8 1996). In the six years since the Elwell-GM settlement, Elwell has testified against GM both in Georgia (pursuant to the exception contained in the injunction) and in several other jurisdictions in which Elwell has been subpoenaed to testify.",The Suit Between Elwell and General Motors
+222,118161,2,2,"Having described the Elwell-GM employment termination litigation, we next summarize the wrongful-death complaint underlying this case. The decedent, Beverly Garner, was a front-seat passenger in a 1985 Chevrolet S-10 Blazer involved in a February 1990 Missouri highway accident. The Blazer's engine caught fire, and both driver and passenger died. In September 1991, Garner's sons, Kenneth and Steven Baker, commenced a wrongful-death product liability action against GM in a Missouri state court. The Bakers alleged that a faulty fuel pump in the 1985 Blazer caused the engine fire that killed their mother. GM removed the case to federal court on the basis of the parties' diverse citizenship. On the merits, GM asserted that the fuel pump was neither faulty nor the cause of the fire, and that collision impact injuries alone caused Garner's death. The Bakers sought both to depose Elwell and to call him as a witness at trial. GM objected to Elwell's appearance as a deponent or trial witness on the ground that the Michigan injunction barred his testimony. In response, the Bakers urged that the Michigan injunction did not override a Missouri subpoena for Elwell's testimony. The Bakers further noted that, under the Elwell-GM settlement agreement, Elwell could testify if a court so ordered, and such testimony would not be actionable as a violation of the Michigan injunction. After in camera review of the Michigan injunction and the settlement agreement, the Federal District Court in Missouri allowed the Bakers to depose Elwell and to call him as a witness at trial. Responding to GM's objection, the District Court stated alternative grounds for its ruling: (1) Michigan's injunction need not be enforced because blocking Elwell's testimony would violate Missouri's public policy, which shielded from disclosure only privileged or otherwise confidential information; (2) just as the injunction could be modified in Michigan, so a court elsewhere could modify the decree. At trial, Elwell testified in support of the Bakers' claim that the alleged defect in the fuel pump system contributed to the postcollision fire. In addition, he identified and described a 1973 internal GM memorandum bearing on the risk of fuel-fed engine fires. Following trial, the jury awarded the Bakers $11.3 million in damages, and the District Court entered judgment on the jury's verdict. The United States Court of Appeals for the Eighth Circuit reversed the District Court's judgment, ruling, inter alia, that Elwell's testimony should not have been admitted. 86 F. 3d 811 (1996). Assuming, arguendo, the existence of a public policy exception to the full faith and credit command, the Court of Appeals concluded that the District Court erroneously relied on Missouri's policy favoring disclosure of relevant, nonprivileged information, see id. , at 818-819, for Missouri has an equally strong public policy in favor of full faith and credit, id., at 819. The Eighth Circuit also determined that the evidence was insufficient to show that the Michigan court would modify the injunction barring Elwell's testimony. See id., at 819— 820. The Court of Appeals observed that the Michigan court has been asked on several occasions to modify the injunction, [but] has yet to do so, and noted that, if the Michigan court did not intend to block Elwell's testimony in cases like the Bakers', the injunction would . . . have been unnecessary. Id., at 820. We granted certiorari to decide whether the full faith and credit requirement stops the Bakers, who were not parties to the Michigan proceeding, from obtaining Elwell's testimony in their Missouri wrongful-death action. 520 U. S. 1142 (1997). [2]",The Suit Between the Bakers and General Motors
+223,118161,2,1,"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Art. IV, § 1. [3] Pursuant to that Clause, Congress has prescribed: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. 28 U. S. C. § 1738. [4] The animating purpose of the full faith and credit command, as this Court explained in Milwaukee County v. M. E. White Co., 296 U. S. 268 (1935), was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. Id., at 277. See also Estin v. Estin, 334 U. S. 541, 546 (1948) (the Full Faith and Credit Clause substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns). Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded. Milwaukee County, 296 U. S., at 277. The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493, 501 (1939); see Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818-819 (1985). Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes, [5] in other words, the judgment of the rendering State gains nationwide force. See, e. g., Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 373 (1996); Kremer v. Chemical Constr. Corp., 456 U. S. 461, 485 (1982); see also Reese & Johnson, The Scope of Full Faith and Credit to Judgments, 49 Colum. L. Rev. 153 (1949). A court may be guided by the forum State's public policy in determining the law applicable to a controversy. See Nevada v. Hall, 440 U. S. 410, 421-424 (1979). [6] But our decisions support no roving public policy exception to the full faith and credit due judgments. See Estin, 334 U. S., at 546 (Full Faith and Credit Clause ordered submission . . . even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it.); Fauntleroy v. Lum, 210 U. S. 230, 237 (1908) (judgment of Missouri court entitled to full faith and credit in Mississippi even if Missouri judgment rested on a misapprehension of Mississippi law). In assuming the existence of a ubiquitous public policy exception permitting one State to resist recognition of another State's judgment, the District Court in the Bakers' wrongful-death action, see supra, at 230, misread our precedent. The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation. Sherrer v. Sherrer, 334 U. S. 343, 355 (1948). We are aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act of Congress require to be given to [a money] judgment outside the state of its rendition. Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 438 (1943). The Court has never placed equity decrees outside the full faith and credit domain. Equity decrees for the payment of money have long been considered equivalent to judgments at law entitled to nationwide recognition. See, e. g., Barber v. Barber, 323 U. S. 77 (1944) (unconditional adjudication of petitioner's right to recover a sum of money is entitled to full faith and credit); see also A. Ehrenzweig, Conflict of Laws § 51, p. 182 (rev. ed. 1962) (describing as indefensible the old doctrine that an equity decree, because it does not merge the claim into the judgment, does not qualify for recognition). We see no reason why the preclusive effects of an adjudication on parties and those in privity with them, i. e., claim preclusion and issue preclusion (res judicata and collateral estoppel), [7] should differ depending solely upon the type of relief sought in a civil action. Cf. Barber, 323 U. S., at 87 (Jackson, J., concurring) (Full Faith and Credit Clause and its implementing statute speak not of judgments but of `judicial proceedings' without limitation); Fed. Rule Civ. Proc. 2 (providing for one form of action to be known as `civil action,'  in lieu of discretely labeled actions at law and suits in equity). Full faith and credit, however, does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law. See McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 325 (1839) (judgment may be enforced only as laws [of enforcing forum] may permit); see also Restatement (Second) of Conflict of Laws § 99 (1969) (The local law of the forum determines the methods by which a judgment of another state is enforced.). [8] Orders commanding action or inaction have been denied enforcement in a sister State when they purported to accomplish an official act within the exclusive province of that other State or interfered with litigation over which the ordering State had no authority. Thus, a sister State's decree concerning land ownership in another State has been held ineffective to transfer title, see Fall v. Eastin, 215 U. S. 1 (1909), although such a decree may indeed preclusively adjudicate the rights and obligations running between the parties to the foreign litigation, see, e. g., Robertson v. Howard, 229 U. S. 254, 261 (1913) ([I]t may not be doubted that a court of equity in one State in a proper case could compel a defendant before it to convey property situated in another State.). And antisuit injunctions regarding litigation elsewhere, even if compatible with due process as a direction constraining parties to the decree, see Cole v. Cunningham, 133 U. S. 107 (1890), in fact have not controlled the second court's actions regarding litigation in that court. See, e. g., James v. Grand Trunk Western R. Co., 14 Ill. 2d 356, 372, 152 N. E. 2d 858, 867 (1958); see also E. Scoles & P. Hay, Conflict of Laws § 24.21, p. 981 (2d ed. 1992) (observing that antisuit injunction does not address, and thus has no preclusive effect on, the merits of the litigation [in the second forum]). [9] Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction. See, e. g., Stiller v. Hardman, 324 F. 2d 626, 628 (CA2 1963) (nonrendition forum enforces monetary relief portion of a judgment but leaves enforcement of injunctive portion to rendition forum).",The Constitution's Full Faith and Credit Clause provides:
+224,145831,1,2,"[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement— (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k(a). Absent other indication, the Court states, reference to a State's `requirements' includes its common-law duties. Ante, at 1008. Regarding the MDA, however, other indication is not [a]bsent. Contextual examination of the Act convinces me that § 360k(a)'s inclusion of the term requirement should not prompt a sweeping preemption of mine-run claims for relief under state tort law. [3]
+Congress enacted the MDA to provide for the safety and effectiveness of medical devices intended for human use. 90 Stat. 539 (preamble). [4] A series of high-profile medical device failures that caused extensive injuries and loss of life propelled adoption of the MDA. [5] Conspicuous among these failures was the Dalkon Shield intrauterine device, used by approximately 2.2 million women in the United States between 1970 and 1974. See In re Northern Dist. of Cal., Dalkon Shield IUD Prods. Liability Litigation, 693 F.2d 847, 848 (C.A.9 1982); ante, at 1002-1003. Aggressively promoted as a safe and effective form of birth control, the Dalkon Shield had been linked to 16 deaths and 25 miscarriages by the middle of 1975. H.R.Rep. No. 94-853, p. 8 (1976). By early 1976, more than 500 lawsuits seeking compensatory and punitive damages totaling more than $400 million had been filed. Ibid. [6] Given the publicity attending the Dalkon Shield litigation and Congress' awareness of the suits at the time the MDA was under consideration, I find informative the absence of any sign of a legislative design to preempt state common-law tort actions. [7] The Court recognizes that § 360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations. Ante, at 1011. That remedy, although important, does not help consumers injured by devices that receive FDA approval but nevertheless prove unsafe. The MDA's failure to create any federal compensatory remedy for such consumers further suggests that Congress did not intend broadly to preempt state common-law suits grounded on allegations independent of FDA requirements. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for large numbers of consumers injured by defective medical devices. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). The former chief counsel to the FDA explained: FDA's view is that FDA product approval and state tort liability usually operate independently, each providing a significant, yet distinct, layer of consumer protection. FDA regulation of a device cannot anticipate and protect against all safety risks to individual consumers. Even the most thorough regulation of a product such as a critical medical device may fail to identify potential problems presented by the product. Regulation cannot protect against all possible injuries that might result from use of a device over time. Preemption of all such claims would result in the loss of a significant layer of consumer protection .... Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L.J. 7, 11 (1997). Cf. Brief for United States as Amicus Curiae on Pet. for Cert. in Smiths Industries Medical Systems, Inc. v. Kernats, O.T. 1997, No. 96-1405, pp. 17-18; Dept. of Health and Human Services, Public Health Service, Advisory Opinion, Docket No. 83A-0140/AP, Letter from J. Hile, Associate Comm'r for Regulatory Affairs, to National Women's Health Network (Mar. 8, 1984). [8] The Court's construction of § 360k(a) has the perverse effect of granting broad immunity to an entire industry that, in the judgment of Congress, needed more stringent regulation, Lohr, 518 U.S., at 487, 116 S.Ct. 2240 (plurality opinion), not exemption from liability in tort litigation. The MDA does grant the FDA authority to order certain remedial action if, inter alia, it concludes that a device presents an unreasonable risk of substantial harm to the public health and that notice of the defect would not by itself be sufficient to eliminate the unreasonable risk. 21 U.S.C. § 360h(b)(1)(A). Thus the FDA may order the manufacturer to repair the device, replace it, refund the purchase price, cease distribution, or recall the device. § 360h(b)(2), (e). The prospect of ameliorative action by the FDA, however, lends no support to the conclusion that Congress intended largely to preempt state common-law suits. Quite the opposite: Section 360h(d) states that [c]ompliance with an order issued under this section shall not relieve any person from liability under Federal or State law. That provision anticipates [court-awarded] damages for economic loss from which the value of any FDA-ordered remedy would be subtracted. Ibid. [9]
+Congress enacted the MDA after decades of regulating drugs and food and color additives under the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. The FDCA contains no preemption clause, and thus the Court's interpretation of § 360k(a) has no bearing on tort suits involving drugs and additives. But § 360k(a)'s confinement to medical devices hardly renders irrelevant to the proper construction of the MDA's preemption provision the long history of federal and state controls over drugs and additives in the interest of public health and welfare. Congress' experience regulating drugs and additives informed, and in part provided the model for, its regulation of medical devices. I therefore turn to an examination of that experience. Starting in 1938, the FDCA required that new drugs undergo preclearance by the FDA before they could be marketed. See § 505, 52 Stat. 1052. Nothing in the FDCA's text or legislative history suggested that FDA preclearance would immunize drug manufacturers from common-law tort suits. [10] By the time Congress enacted the MDA in 1976, state common-law claims for drug labeling and design defects had continued unabated despite nearly four decades of FDA regulation. [11] Congress' inclusion of a preemption clause in the MDA was not motivated by concern that similar state tort actions could be mounted regarding medical devices. [12] Rather, Congress included § 360k(a) and (b) to empower the FDA to exercise control over state premarket approval systems installed at a time when there was no preclearance at the federal level. See supra, at 1014, and n. 3; infra, at 1018, and n. 14. Between 1938 and 1976, Congress enacted a series of premarket approval requirements, first for drugs, then for additives. Premarket control, as already noted, commenced with drugs in 1938. In 1958, Congress required premarket approval for food additives. Food Additives Amendment, § 3, 72 Stat. 1785, as amended, 21 U.S.C. § 348. In 1960, it required premarket approval for color additives. Color Additive Amendments, § 103(b), 74 Stat. 399, as amended, 21 U.S.C. § 379e. In 1962, it expanded the premarket approval process for new drugs to include review for effectiveness. Drug Amendments, § 101, 76 Stat. 781, as amended, 21 U.S.C. § 321 et seq. And in 1968, it required premarket approval for new animal drugs. Animal Drug Amendments, § 101(b), 82 Stat. 343, as amended, 21 U.S.C. § 360b. None of these Acts contained a preemption clause. The measures just listed, like the MDA, were all enacted with common-law personal injury litigation over defective products a prominent part of the legal landscape. [13] At the time of each enactment, no state regulations required premarket approval of the drugs or additives in question, so no preemption clause was needed as a check against potentially conflicting state regulatory regimes. See Brief for Sen. Edward M. Kennedy et al. as Amici Curiae 10. A different situation existed as to medical devices when Congress developed and passed the MDA. As the House Report observed: In the absence of effective Federal regulation of medical devices, some States have established their own programs. The most comprehensive State regulation of which the Committee is aware is that of California, which in 1970 adopted the Sherman Food, Drug, and Cosmetic Law. This law requires premarket approval of all new medical devices, requires compliance of device manufacturers with good manufacturing practices and authorizes inspection of establishments which manufacture devices. Implementation of the Sherman Law has resulted in the requirement that intrauterine devices are subject to premarket clearance in California. H.R.Rep. No. 94-853, p. 45 (emphasis added). [14] In sum, state premarket regulation of medical devices, not any design to suppress tort suits, accounts for Congress' inclusion of a preemption clause in the MDA; no such clause figures in earlier federal laws regulating drugs and additives, for States had not installed comparable control regimes in those areas.
+Congress' experience regulating drugs also casts doubt on Medtronic's policy arguments for reading § 360k(a) to preempt state tort claims. Section 360k(a) must preempt state common-law suits, Medtronic contends, because Congress would not have wanted state juries to second-guess the FDA's finding that a medical device is safe and effective when used as directed. Brief for Respondent 42-49. The Court is similarly minded. Ante, at 1008-1009. But the process for approving new drugs is at least as rigorous as the premarket approval process for medical devices. [15] Courts that have considered the question have overwhelmingly held that FDA approval of a new drug application does not preempt state tort suits. [16] Decades of drug regulation thus indicate, contrary to Medtronic's argument, that Congress did not regard FDA regulation and state tort claims as mutually exclusive.",The MDA's preemption clause states:
+225,112647,1,6,"Reversed. APPENDIX TO OPINION OF KENNEDY, J..Appendix A Petitioner's Opening Remarks at the Press Conference of February 5, 1988. App. to Pet. for Cert. 8a-9a. MR. GENTILE: I want to start this off by saying in clear terms that I think that this indictment is a significant event in the history of the evolution of the sophistication of the City of Las Vegas, because things of this nature, of exactly this nature have happened in New York with the French connection case and in Miami with cases—at least two cases there— have happened in Chicago as well, but all three of those cities have been honest enough to indict the people who did it; the police department, crooked cops. When this case goes to trial, and as it develops, you're going to see that the evidence will prove not only that Grady Sanders is an innocent person and had nothing to do with any of the charges that are being leveled against him, but that the person that was in the most direct position to have stolen the drugs and money, the American Express Travelers' checks, is Detective Steve Scholl. There is far more evidence that will establish that Detective Scholl took these drugs and took these American Express Travelers' checks than any other living human being. And I have to say that I feel that Grady Sanders is being used as a scapegoat to try to cover up for what has to be obvious to people at the Las Vegas Metropolitan Police Department and at the District Attorney's office. Now, with respect to these other charges that are contained in this indictment, the so-called other victims, as I sit here today I can tell you that one, two—four of them are known drug dealers and convicted money launderers and drug dealers; three of whom didn't say a word about anything until after they were approached by Metro and after they were already in trouble and are trying to work themselves out of something. Now, up until the moment, of course, that they started going along with what detectives from Metro wanted them to say, these people were being held out as being incredible and liars by the very same people who are going to say now that you can believe them. Another problem that you are going to see develop here is the fact that of these other counts, at least four of them said nothing about any of this, about anything being missing until after the Las Vegas Metropolitan Police Department announced publicly last year their claim that drugs and American Express Travelers' c[h]ecks were missing. Many of the contracts that these people had show on the face of the contract that there is $100,000 in insurance for the contents of the box. If you look at the indictment very closely, you're going to see that these claims fall under $100,000. Finally, there were only two claims on the face of the indictment that came to our attention prior to the events of January 31 of '87, that being the date that Metro said that there was something missing from their box. And both of these claims were dealt with by Mr. Sanders and we're dealing here essentially with people that we're not sure if they ever had anything in the box. That's about all that I have to say. [Questions from the floor followed.] Appendix B Nevada Supreme Court Rule 177, as in effect prior to January 5, 1991. Trial Publicity 1. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. 2. A statement referred to in subsection 1 ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to: (a) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (b) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (c) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (d) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (e) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or (f) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. 3. Notwithstanding subsection 1 and 2(a-f), a lawyer involved in the investigation or litigation of a matter may state without elaboration: (a) the general nature of the claim or defense; (b) the information contained in a public record; (c) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved; (d) the scheduling or result of any step in litigation; (e) a request for assistance in obtaining evidence and information necessary thereto; (f) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (g) in a criminal case: (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court with respect to Parts I and II, and delivered a dissenting opinion with respect to Part III, in which JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE SOUTER join. Petitioner was disciplined for making statements to the press about a pending case in which he represented a criminal defendant. The state bar, and the Supreme Court of Nevada on review, found that petitioner knew or should have known that there was a substantial likelihood that his statements would materially prejudice the trial of his client. Nonetheless, petitioner contends that the First Amendment to the United States Constitution requires a stricter standard to be met before such speech by an attorney may be disciplined: there must be a finding of actual prejudice or a substantial and imminent threat to fair trial. Brief for Petitioner 15. We conclude that the substantial likelihood of material prejudice standard applied by Nevada and most other States satisfies the First Amendment.",The judgment of the Supreme Court of Nevada is
+226,107938,1,1,"The named plaintiff in the patent infringement complaint which began this litigation was HRI, not its parent, Hazeltine; Zenith's counterclaim named only HRI as the counter-defendant, identifying HRI and Hazeltine as counter-defendant and its parent. After Zenith had filed its answer and had delivered a draft of its counter-claim to HRI's attorneys—both the answer and the counterclaim alleging that HRI had unlawfully conspired with Hazeltine and foreign patent pools—HRI and Zenith stipulated that for purpose of this litigation Plaintiff and its parent Hazeltine Corporation will be considered to be one and the same company. On May 22, 1963, two weeks after the stipulation had been signed, Zenith filed its counterclaim, seeking money damages from HRI and an injunction against HRI and those in privity with it. Hazeltine was not served with the counterclaim and was not named as a party, although it was alleged to be a coconspirator with HRI and the foreign patent pools. Hazeltine made no appearance in the litigation until Zenith proposed that judgment be entered against it, at which time Hazeltine filed a special appearance. Insofar as the record reveals, Hazeltine did not formally participate in the proceedings until after the District Court had entered its initial findings of fact and conclusions of law. On April 5, 1965, after Hazeltine's special appearance, the trial judge entered judgment against Hazeltine as well as HRI, thereby rejecting Hazeltine's objection that the court was without jurisdiction over it. Apparently, the trial court based its decision on the pretrial stipulation [3] and its earlier finding that: The parties stipulated that for the purposes of this litigation Hazeltine Research, Inc. and its parent, Hazeltine Corporation, would be considered as one entity operating as a patent holding and licensing company, engaged in the exploitation of patent rights in the electronics industry in the United States and in foreign countries. 239 F. Supp., at 69. The Court of Appeals was quite right in vacating the judgments against Hazeltine. It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. Hansberry v. Lee, 311 U. S. 32, 40-41 (1940). The consistent constitutional rule has been that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. E. g., Pennoyer v. Neff, 95 U. S. 714 (1878); Vanderbilt v. Vanderbilt, 354 U. S. 416, 418 (1957). Here, Hazeltine was not named as a party, was never served and did not formally appear at the trial. Nor was the stipulation an adequate substitute for the normal methods of obtaining jurisdiction over a person or a corporation. The stipulation represented HRI's agreement to be bound by and to be liable for the acts of its parent, but it was signed only by HRI, through its attorney, Dodds. Hazeltine did not execute the stipulation, and Dodds, although an officer of Hazeltine, did not purport to be signing on its behalf. The trial court apparently viewed the stipulation as binding Hazeltine, as equivalent to an entry of appearance, or as consent to entry of judgment against it. The stipulation on its face, however, hardly warrants this construction, and if there were other circumstances which justified the trial court's conclusion, the findings do not reveal them. Perhaps Zenith could have proved and the trial court might have found that HRI and Hazeltine were alter egos; but absent jurisdiction over Hazeltine, that determination would bind only HRI. If the alter ego issue had been litigated, and if the trial court had decided that HRI and Hazeltine were one and the same entity and that jurisdiction over HRI gave the court jurisdiction over Hazeltine, perhaps Hazeltine's appearance before judgment with full opportunity to contest jurisdiction would warrant entry of judgment against it. But that is not what occurred here. The trial court's judgment against Hazeltine was based wholly on HRI's stipulation. HRI may have executed the stipulation to avoid litigating the alter ego issue, [4] but this fact cannot foreclose Hazeltine, which has never had its day in court on the question of whether it and its subsidiary should be considered the same entity for purposes of this litigation. Likewise, were it shown that Hazeltine through its officer, Dodds, in fact controlled the litigation on behalf of HRI, and if the claim were made that the judgment against HRI would be res judicata against Hazeltine because of this control, that claim itself could be finally adjudicated against Hazeltine only in a court with jurisdiction over that company. [5] See G. & C. Merriam Co. v. Saalfield, 241 U. S. 22 (1916); Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260 (1961). Neither the judgment for damages nor the injunction against Hazeltine was proper. Although injunctions issued by federal courts bind not only the parties defendant in a suit, but also those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, Fed. Rule Civ. Proc. 65 (d), a nonparty with notice cannot be held in contempt until shown to be in concert or participation. It was error to enter the injunction against Hazeltine, without having made this determination in a proceeding to which Hazeltine was a party. [6]",the judgments against hazeltine.
+227,107938,1,2,"
+HRI's major points in the Court of Appeals were that no injury to Zenith's business during the damage period had been proved; that if Zenith had suffered injury, it resulted wholly or partly from conduct prior to May 22, 1959, and to this extent was barred by the statute of limitations and by Zenith's 1957 settlement of certain antitrust litigation against RCA, General Electric, and Western Electric, which had the effect of releasing HRI from all liability for pre-settlement acts of the foreign patent pools; [7] that the Hazeltine companies had not illegally conspired with foreign pools; and that the damage award was excessive. Passing the other issues pressed by HRI, including the limitations defense, the Court of Appeals held that Zenith had failed to prove any injury to its export business during the damage period which resulted from pool activities either before or after the beginning of the damage period, and that the District Court's finding to the contrary was clearly erroneous. [8] We have concluded that the Court of Appeals erred in setting aside the District Court's decision with respect to the fact of damage in Canada. Zenith's evidence, although by no means conclusive, was sufficient to sustain the inference that Zenith had in fact been injured to some extent [9] by the Canadian pool's restraints upon imports of radio and television sets. On the other hand, we agree with the Court of Appeals that the District Court erred as to the English and Australian markets.
+The findings of the District Court with respect to the operations of the Canadian pool may be briefly summarized. The Canadian patent pool, Canadian Radio Patents, Ltd. (CRPL), was formed in 1926 by the General Electric Company of the United States through its subsidiary, Canadian General Electric Company, and by Westinghouse through its Canadian subsidiary. The pool was made up largely of Canadian manufacturers, most of which were subsidiaries of American companies. The pool for many years had the exclusive right to sub-license the patents of its member companies and also those of Hazeltine and a number of other foreign concerns. About 5,000 patents were available to the pool for licensing, and only package licenses were granted, covering all patents in the pool and strictly limited to manufacture in Canada. No license to importers was available. The chief purpose of the pool was to protect the manufacturing members and licensees from competition by American and other foreign companies seeking to export their products into Canada. CRPL's efforts to prevent importation of radio and television sets from the United States were highly organized and effective. Agents, investigators, and manufacturer and distributor trade associations systematically policed the market; warning notices and advertisements advised distributors, dealers, and even consumers against selling or using unlicensed equipment. Infringement suits or threats thereof were regularly and effectively employed to dissuade dealers from handling American-made sets. For many years Zenith attempted to establish distribution in Canada, but distributors were warned off by the pool, and Zenith's efforts to secure a license for American-made goods were unsuccessful. Zenith then brought an antitrust suit against RCA, General Electric, and Western Electric. [10] This litigation was favorably settled, Zenith receiving, among other things, worldwide licenses on patents owned by the named defendants. Armed with these and other licenses, Zenith in 1958 began exporting radio and television products to Canada. It was promptly informed by CRPL that to continue business in Canada, Zenith would be required to sign CRPL's standard license, which did not permit importation, and that to sell in Canada it must manufacture there. Zenith was notified at the time that it was infringing at least one of Hazeltine's patents which had been placed with CRPL for licensing in Canada. Soon after this demand by CRPL, HRI began its infringement suit against Zenith. Some of the trial court's findings describing the operations of the Canadian pool and its drastic impact upon Zenith's foreign commerce did not date the events or state whether they had occurred before or after May 22, 1959. The damage award was confined to injuries sustained during the statutory period, but the trial court apparently deemed it immaterial whether the damage-causing acts occurred before or after the start of the damage period. Damages were awarded on the assumption that Zenith, absent the conspiracy, would have had 16% of the Canadian television market on May 22, 1959, and throughout the damage period rather than its actual 3% share. [11] Since the failure to have 16% of the market on the first day of the damage period was ascribed to pool operations, those operations must have occurred prior to May 22, 1959. Some part of the damages awarded, therefore, necessarily resulted from pre-damage period conduct. [12] The Court of Appeals reversed the District Court because it considered the evidence insufficient to prove the fact of any damage to Zenith after May 22, 1959. Having put aside HRI's statute of limitations defense, belatedly raised in the District Court and pressed in the Court of Appeals, [13] the import of the court's decision was that Zenith had not been damaged after May 22, 1959, by any act of the pool, whether occurring before or after that date. The Court of Appeals' overriding judgment—as it had to be if its no-injury rationale were to meet claims of damage period injury from pre-damage period conduct—was that Zenith would have done no more business in Canada after May 22, 1959, had the patent pool never operated in that country. The Court of Appeals was clearly in error. The evidence was quite sufficient to sustain a finding that competing business concerns and patentees joined together to pool their Canadian patents, granting only package licenses and refusing to license imported goods. Their clear purpose was to exclude concerns like Zenith from the Canadian market unless willing to manufacture there. Zenith, consequently, was never able to obtain a license. This fact and the pool's vigorous campaign to discourage importers, distributors, dealers, and consumers from selling, handling, or using unlicensed foreign merchandise effectively prevented Zenith from making any headway in the Canadian market until after the 1957 settlement with RCA and its codefendants. And even in 1958, when Zenith undertook in earnest to establish its distribution system in Canada and to market its merchandise, Zenith was met with further pool advertisements threatening action against imported goods and further notifications, continuing past May 22, 1959, that its products were infringing pool patents and that no license was available unless Zenith manufactured in Canada. This evidence clearly warrants the inference that CRPL's past conduct interfered with and made more difficult the distribution of Zenith products in 1959 and later years. The District Court could reasonably conclude that the cumulative effects of the pool's campaign against imported goods had consequences lasting well into the damage period. It could also rationally be found from the evidence that Zenith, beginning in 1958, could not have reached its maximum potential by May 22, 1959, that the pool had effectively prevented an earlier beginning, and that Zenith therefore suffered damage during the damage period from having a smaller share of the market than it would have had if the pool had never existed. We also conclude that the record evidence is sufficient to support a finding of damage resulting from events occurring after the beginning of the damage period. We need not merely assume that the Canadian pool continued throughout the period of this suit, as we are entitled to do in the absence of clear evidence of its termination. See, e. g., Local 167 v. United States, 291 U. S. 293, 297-298 (1934); United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952). HRI frankly conceded the continuation of the pool before the District Court, [14] and it appears sufficiently clear that throughout this time Zenith was deprived of what had always been refused it—a license on pool patents permitting it to sell American-made merchandise in Canada. On May 12, 1959, the pool manager conferred with Zenith's vice president, informing him that Zenith was infringing pool patents and would require a license, but that licenses were granted only for local manufacture. This was followed on June 5, 1959, by a letter stating without reservation that Zenith receivers were infringing, and enclosing the pool's standard license form. This was nothing more nor less than a demand during the damage period that Zenith either manufacture in Canada and take the standard package license or cease its activities in that country. [15] There is no evidence that the pool ever retreated from that position during the next four years. Zenith thus continued to operate without a patent license unburdened by conspiratorial conduct and granted on terms which would satisfy the antitrust laws. This deprivation in itself necessarily had an impact on Zenith and constituted an injury to its business. We find singularly unpersuasive the argument that Zenith was as well off without a license as with one. This is little more than an assertion that pool licenses, from which CRPL and its participants enjoyed substantial income, were without value. Without the license, doing business in Canada obviously involved weighty risks for Zenith itself, besides requiring it to convince the trade that it could legally and effectively do business without clearance from CRPL. [16] Of course, Zenith determined to take these risks, serious as they were. Although HRI brought the instant litigation claiming infringement of an HRI domestic patent, the foreign counterpart of which had been made available to the Canadian pool by Hazeltine, Zenith persevered in its Canadian efforts. The claim is now pressed, and the Court of Appeals held, that the pool bothered neither Zenith nor its distributors after mid-1959 and that Zenith ran the gantlet so successfully that not having a license made no difference whatsoever. It is true that the record discloses no specific instance of subsequent infringement suits or threats against Zenith's existing or potential distributors or dealers. But there is evidence that the pool was not dormant after May 1959. The record contains a letter from the pool to a distributor of Motorola products containing clear warnings against handling unlicensed, imported merchandise. [17] More significant, the fair import of the testimony by Zenith officers was that the pool remained active during the damage period and prevented Zenith from establishing an effective distribution system throughout Canada. Zenith was able to obtain independent distributors in the Western Provinces, but it was unable to do so in the Central and the Maritime Provinces, where it necessarily relied on its own subsidiaries for distribution. These officers, experienced businessmen, also testified to the similarities between the Canadian and American markets, attributing Zenith's much poorer Canadian performance to the discouraging and repressive effects of the pool. The Court of Appeals did not refuse to credit this testimony, as HRI insists we should do, [18] but accepting it as some evidence of damage, considered it of insufficient weight to prove injury to Zenith's business. In this respect the Court of Appeals both gave insufficient deference to the findings of the trial judge and failed to adhere to the teachings of Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251 (1946), and other cases dealing with the standard of proof in treble-damage actions. In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52 (a) is not whether it would have made the findings the trial court did, but whether on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). See also United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 495-496 (1950); Commissioner v. Duberstein, 363 U. S. 278, 289-291 (1960). Trial and appellate courts alike must also observe the practical limits of the burden of proof which may be demanded of a treble-damage plaintiff who seeks recovery for injuries from a partial or total exclusion from a market; damage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs. Bigelow v. RKO Pictures, Inc., supra, at 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 377-379 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 561-566 (1931). In Bigelow, a treble-damage plaintiff claimed injury from a conspiracy among film distributors to deny him first-run pictures. He offered evidence comparing his profits with those of a competing theater granted first-run showings and also measuring his current profits against those earned when first-run films had been available to him. This Court, reversing the Court of Appeals, found the evidence sufficient to sustain an award of damages. Although the factfinder is not entitled to base a judgment on speculation or guesswork, the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, `juries are allowed to act upon probable and inferential, as well as direct and positive proof.' Story Parchment Co. v. Paterson Co., supra, 561-4; Eastman Kodak Co. v. Southern Photo Co., supra, 377-9. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. 327 U. S., at 264-265. Here, Zenith was denied a valuable license and submitted testimony that without the license it had encountered distribution difficulties which prevented its securing a share of the market comparable to that which it enjoyed in the United States, and which its business proficiency, demonstrated in the United States, dictated it should have obtained in Canada. CRPL was an established organization with a long history of successfully excluding imported merchandise; and in view of its continued existence during the damage period, the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause. The trial court was entitled to infer from this circumstantial evidence that the necessary causal relation between the pool's conduct and the claimed damage existed. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 696-701 (1962).
+Hazeltine patents were made available to the English pool in 1930. The pool issued only package licenses, restricted to local manufacture. Although pool radio patents had expired prior to the beginning of the damage period, the trial court found, and we assume, that the pool held television patents which would not be licensed for television sets made in the United States. [19] Zenith was interested in the English market and made exclusive arrangements with one distributor desiring to handle its merchandise. At no time during or before the damage period, however, did Zenith make available or offer for sale a substantial number of television sets suitable for the English market or make any other serious efforts to enter that market. It attained no appreciable position in the English television market. Having initially found the patent pool responsible over the years for Zenith's failure to participate in the English market, the trial court, after further proceedings, held that a government embargo, not the patent pool, was the sole reason for Zenith's not entering the English market prior to the beginning of the damage period in 1959; until then, the District Court found, the pool [was] not called upon to exercise the type of conduct that [it] exercised in Canada. It did not, however, retreat from its conclusion that restraints imposed by the pool had foreclosed Zenith during the damage period. [20] In this respect we agree with the Court of Appeals that the trial court clearly erred. Based on our own examination of the record, we are convinced that even with the ending of the embargo in mid-1959, Zenith faced other obstacles which effectively discouraged its entry into the English market and for which the pool was not responsible. Positing that Zenith could not get a license from the English pool and that it did not enter the British market before or during the damage period, the issue is whether, once the embargo was lifted, Zenith wanted and intended to enter, had the capacity to do so, and was prevented from entering by its inability to secure a patent license and by other operations of the English patent pool. Section 4 of the Clayton Act required that Zenith show an injury to its business or property by reason of anything forbidden in the antitrust laws. If Zenith's failure to enter the English market was attributable to its lack of desire, its limited production capabilities, or to other factors independent of HRI's unlawful conduct, Zenith would not have met its burden under § 4. [21] Zenith was interested in the English market; this much is clear. But its standard domestic television set was manufactured to operate on 525- and 625-line-per-second scanning signals, whereas the 405-line signal was standard in England until after the damage period. Similarly, while FM transmission was utilized in the United States for the audio portion, AM signals were used in England. Zenith's regular product thus was not salable in the English market. To succeed at all, Zenith had either to produce a differently equipped set or to provide for the mass conversion of its standard receivers. Unquestionably, the company had the facilities and the ability to follow either course. But it is equally clear that it pursued neither. [22] A change in the standard British broadcast to include a 625-line signal was under consideration, even imminent, during the damage period. Zenith's merchandise would in any event have sold at prices substantially higher than those prevailing in the English market; tariffs and freight costs tended to widen the differential. Producing a new set for the English market, or modifying existent models on a large-scale basis, would have involved substantial costs. Based on the evidence before us, including the correspondence between Zenith and its British representative, we think the Court of Appeals correctly rejected the inference that Zenith intended to and was prepared to enter the English television market during the damage period, and correctly concluded that Zenith was in fact waiting for a change in English standards to a 625-line system. 388 F. 2d, at 37. It clearly emerges from the evidence that Zenith had every intention to promote the sale of its television sets if and when the signal change occurred. Given that event, neither the absence of a pool license nor pool threats against it or its customers would have deterred Zenith from a major effort to penetrate the British market. Why the existence of the pool, which as far as the record shows was quiescent during the damage period, should be credited with the power to discourage Zenith's entry before the signal change but not after is difficult to grasp. But the question at hand is not whether, if Zenith had decided to enter the market, the pool would have been a deterrent and inflicted damage. Rather, it is whether Zenith was in fact constrained by the pool to stay out of England during the damage period or whether Zenith's own business calculus led it to await more favorable conditions. As we have said, the latter is the only permissible inference from this record.
+The Australian patent pool, which had exclusive rights to license Hazeltine patents, also granted licenses only for local manufacture. Had HRI and Hazeltine's conspiracy with the Australian pool effectively kept Zenith from that market, a compensable violation of the antitrust laws unquestionably would have occurred. But the findings of the District Court are wholly silent as to how the Australian pool had any impact on Zenith's business. An officer of Zenith revealed that Zenith had exported no products to Australia since the 1920's or early 1930's. Zenith had not requested a pool license during the 20-year period preceding the trial. A government embargo was found by the District Court to have foreclosed Zenith's American-made merchandise until well into the damage period. High tariffs and shipping costs were additional barriers, as well as the prospect of vigorous competition. Nothing in the record before us would permit the inference that Zenith either intended or was prepared to enter the Australian market during the damage period. The Court of Appeals was correct in reversing the District Court's award of damages with respect to the Australian market.
+In setting aside the District Court's grant of injunctive relief against continued participation by HRI and Hazeltine in any patent pool or similar association restricting Zenith's export trade, [23] the Court of Appeals stated, without more: It follows from our conclusion with respect to the foreign patent pools that injunctive relief against `threatened loss or damage' directed at those pools, alleged by Zenith to be unlawful conspiracies, cannot be justified under 15 U. S. C. Sec. 26. Paragraph C of the injunction granted must be stricken. 388 F. 2d, at 39. The evident premise for striking Paragraph C was that Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U. S. C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of threatened injury. [24] That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, see Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U. S. 37, 54-55 (1927); he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. See Swift & Co. v. United States, 196 U. S. 375, 396 (1905); Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., supra, at 54; United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952); United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. E. g., United States v. Borden Co., 347 U. S. 514, 518 (1954). Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). Its availability should be conditioned by the necessities of the public interest which Congress has sought to protect. Id., at 330. Judged by the proper standard, the record before us warranted the injunction with respect to Canada. The findings of the District Court were that HRI and CRPL were conspiring to exclude Zenith and others from the Canadian market; there was nothing indicating that this clear violation of the antitrust laws had terminated or that the threat to Zenith inherent in the conduct would cease in the foreseeable future. Neither the relative quiescence of the pool during the litigation nor claims that objectionable conduct would cease with the judgment negated the threat to Zenith's foreign trade. [25] That threat was too clear for argument, and injunctive relief against HRI with respect to the Canadian market was wholly proper. We also reinstate the injunction entered by the District Court insofar as it more broadly barred HRI from conspiring with others to restrict or prevent Zenith from entering any other foreign market. In exercising its equitable jurisdiction, [a] federal court has broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated from the defendant's conduct in the past. NLRB v. Express Publishing Co., 312 U. S. 426, 435 (1941). See also United States v. National Lead Co., 332 U. S. 319, 328-335 and n. 4 (1947). Given the findings that HRI was conspiring with the Canadian pool, its purpose to exclude Zenith from Canada and its violation of the Sherman Act were clearly established. Its propensity for arrangements of this sort was also indicated by the findings revealing its participation in similar pools operating in England and Australia. [26] Zenith, a company interested in expanding its foreign commerce and having suffered at the hands of HRI and its coconspirators in the Canadian market, was entitled to injunctive relief against like conduct by HRI in other world markets. We see no reason that the federal courts, in exercising the traditional equitable powers extended to them by § 16, should not respond to the salutary principle that when one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts. NLRB v. Express Publishing Co., supra, at 436. Although a district court may not enjoin all future illegal conduct of the defendant, or even all future violations of the antitrust laws, however unrelated to the violation found by the court, e. g., New York, N. H. & H. R. Co. v. ICC, 200 U. S. 361, 401 (1906), [w]hen the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed. International Salt Co. v. United States, 332 U. S. 392, 400 (1947). This is particularly true in treble-damage cases, which are brought for private ends, but which also serve the public interest in that they effectively pry open to competition a market that has been closed by defendants' illegal restraints. Id., at 401.",the foreign patent pools.
+228,107938,2,1,"HRI's major points in the Court of Appeals were that no injury to Zenith's business during the damage period had been proved; that if Zenith had suffered injury, it resulted wholly or partly from conduct prior to May 22, 1959, and to this extent was barred by the statute of limitations and by Zenith's 1957 settlement of certain antitrust litigation against RCA, General Electric, and Western Electric, which had the effect of releasing HRI from all liability for pre-settlement acts of the foreign patent pools; [7] that the Hazeltine companies had not illegally conspired with foreign pools; and that the damage award was excessive. Passing the other issues pressed by HRI, including the limitations defense, the Court of Appeals held that Zenith had failed to prove any injury to its export business during the damage period which resulted from pool activities either before or after the beginning of the damage period, and that the District Court's finding to the contrary was clearly erroneous. [8] We have concluded that the Court of Appeals erred in setting aside the District Court's decision with respect to the fact of damage in Canada. Zenith's evidence, although by no means conclusive, was sufficient to sustain the inference that Zenith had in fact been injured to some extent [9] by the Canadian pool's restraints upon imports of radio and television sets. On the other hand, we agree with the Court of Appeals that the District Court erred as to the English and Australian markets.
+The findings of the District Court with respect to the operations of the Canadian pool may be briefly summarized. The Canadian patent pool, Canadian Radio Patents, Ltd. (CRPL), was formed in 1926 by the General Electric Company of the United States through its subsidiary, Canadian General Electric Company, and by Westinghouse through its Canadian subsidiary. The pool was made up largely of Canadian manufacturers, most of which were subsidiaries of American companies. The pool for many years had the exclusive right to sub-license the patents of its member companies and also those of Hazeltine and a number of other foreign concerns. About 5,000 patents were available to the pool for licensing, and only package licenses were granted, covering all patents in the pool and strictly limited to manufacture in Canada. No license to importers was available. The chief purpose of the pool was to protect the manufacturing members and licensees from competition by American and other foreign companies seeking to export their products into Canada. CRPL's efforts to prevent importation of radio and television sets from the United States were highly organized and effective. Agents, investigators, and manufacturer and distributor trade associations systematically policed the market; warning notices and advertisements advised distributors, dealers, and even consumers against selling or using unlicensed equipment. Infringement suits or threats thereof were regularly and effectively employed to dissuade dealers from handling American-made sets. For many years Zenith attempted to establish distribution in Canada, but distributors were warned off by the pool, and Zenith's efforts to secure a license for American-made goods were unsuccessful. Zenith then brought an antitrust suit against RCA, General Electric, and Western Electric. [10] This litigation was favorably settled, Zenith receiving, among other things, worldwide licenses on patents owned by the named defendants. Armed with these and other licenses, Zenith in 1958 began exporting radio and television products to Canada. It was promptly informed by CRPL that to continue business in Canada, Zenith would be required to sign CRPL's standard license, which did not permit importation, and that to sell in Canada it must manufacture there. Zenith was notified at the time that it was infringing at least one of Hazeltine's patents which had been placed with CRPL for licensing in Canada. Soon after this demand by CRPL, HRI began its infringement suit against Zenith. Some of the trial court's findings describing the operations of the Canadian pool and its drastic impact upon Zenith's foreign commerce did not date the events or state whether they had occurred before or after May 22, 1959. The damage award was confined to injuries sustained during the statutory period, but the trial court apparently deemed it immaterial whether the damage-causing acts occurred before or after the start of the damage period. Damages were awarded on the assumption that Zenith, absent the conspiracy, would have had 16% of the Canadian television market on May 22, 1959, and throughout the damage period rather than its actual 3% share. [11] Since the failure to have 16% of the market on the first day of the damage period was ascribed to pool operations, those operations must have occurred prior to May 22, 1959. Some part of the damages awarded, therefore, necessarily resulted from pre-damage period conduct. [12] The Court of Appeals reversed the District Court because it considered the evidence insufficient to prove the fact of any damage to Zenith after May 22, 1959. Having put aside HRI's statute of limitations defense, belatedly raised in the District Court and pressed in the Court of Appeals, [13] the import of the court's decision was that Zenith had not been damaged after May 22, 1959, by any act of the pool, whether occurring before or after that date. The Court of Appeals' overriding judgment—as it had to be if its no-injury rationale were to meet claims of damage period injury from pre-damage period conduct—was that Zenith would have done no more business in Canada after May 22, 1959, had the patent pool never operated in that country. The Court of Appeals was clearly in error. The evidence was quite sufficient to sustain a finding that competing business concerns and patentees joined together to pool their Canadian patents, granting only package licenses and refusing to license imported goods. Their clear purpose was to exclude concerns like Zenith from the Canadian market unless willing to manufacture there. Zenith, consequently, was never able to obtain a license. This fact and the pool's vigorous campaign to discourage importers, distributors, dealers, and consumers from selling, handling, or using unlicensed foreign merchandise effectively prevented Zenith from making any headway in the Canadian market until after the 1957 settlement with RCA and its codefendants. And even in 1958, when Zenith undertook in earnest to establish its distribution system in Canada and to market its merchandise, Zenith was met with further pool advertisements threatening action against imported goods and further notifications, continuing past May 22, 1959, that its products were infringing pool patents and that no license was available unless Zenith manufactured in Canada. This evidence clearly warrants the inference that CRPL's past conduct interfered with and made more difficult the distribution of Zenith products in 1959 and later years. The District Court could reasonably conclude that the cumulative effects of the pool's campaign against imported goods had consequences lasting well into the damage period. It could also rationally be found from the evidence that Zenith, beginning in 1958, could not have reached its maximum potential by May 22, 1959, that the pool had effectively prevented an earlier beginning, and that Zenith therefore suffered damage during the damage period from having a smaller share of the market than it would have had if the pool had never existed. We also conclude that the record evidence is sufficient to support a finding of damage resulting from events occurring after the beginning of the damage period. We need not merely assume that the Canadian pool continued throughout the period of this suit, as we are entitled to do in the absence of clear evidence of its termination. See, e. g., Local 167 v. United States, 291 U. S. 293, 297-298 (1934); United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952). HRI frankly conceded the continuation of the pool before the District Court, [14] and it appears sufficiently clear that throughout this time Zenith was deprived of what had always been refused it—a license on pool patents permitting it to sell American-made merchandise in Canada. On May 12, 1959, the pool manager conferred with Zenith's vice president, informing him that Zenith was infringing pool patents and would require a license, but that licenses were granted only for local manufacture. This was followed on June 5, 1959, by a letter stating without reservation that Zenith receivers were infringing, and enclosing the pool's standard license form. This was nothing more nor less than a demand during the damage period that Zenith either manufacture in Canada and take the standard package license or cease its activities in that country. [15] There is no evidence that the pool ever retreated from that position during the next four years. Zenith thus continued to operate without a patent license unburdened by conspiratorial conduct and granted on terms which would satisfy the antitrust laws. This deprivation in itself necessarily had an impact on Zenith and constituted an injury to its business. We find singularly unpersuasive the argument that Zenith was as well off without a license as with one. This is little more than an assertion that pool licenses, from which CRPL and its participants enjoyed substantial income, were without value. Without the license, doing business in Canada obviously involved weighty risks for Zenith itself, besides requiring it to convince the trade that it could legally and effectively do business without clearance from CRPL. [16] Of course, Zenith determined to take these risks, serious as they were. Although HRI brought the instant litigation claiming infringement of an HRI domestic patent, the foreign counterpart of which had been made available to the Canadian pool by Hazeltine, Zenith persevered in its Canadian efforts. The claim is now pressed, and the Court of Appeals held, that the pool bothered neither Zenith nor its distributors after mid-1959 and that Zenith ran the gantlet so successfully that not having a license made no difference whatsoever. It is true that the record discloses no specific instance of subsequent infringement suits or threats against Zenith's existing or potential distributors or dealers. But there is evidence that the pool was not dormant after May 1959. The record contains a letter from the pool to a distributor of Motorola products containing clear warnings against handling unlicensed, imported merchandise. [17] More significant, the fair import of the testimony by Zenith officers was that the pool remained active during the damage period and prevented Zenith from establishing an effective distribution system throughout Canada. Zenith was able to obtain independent distributors in the Western Provinces, but it was unable to do so in the Central and the Maritime Provinces, where it necessarily relied on its own subsidiaries for distribution. These officers, experienced businessmen, also testified to the similarities between the Canadian and American markets, attributing Zenith's much poorer Canadian performance to the discouraging and repressive effects of the pool. The Court of Appeals did not refuse to credit this testimony, as HRI insists we should do, [18] but accepting it as some evidence of damage, considered it of insufficient weight to prove injury to Zenith's business. In this respect the Court of Appeals both gave insufficient deference to the findings of the trial judge and failed to adhere to the teachings of Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251 (1946), and other cases dealing with the standard of proof in treble-damage actions. In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52 (a) is not whether it would have made the findings the trial court did, but whether on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). See also United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 495-496 (1950); Commissioner v. Duberstein, 363 U. S. 278, 289-291 (1960). Trial and appellate courts alike must also observe the practical limits of the burden of proof which may be demanded of a treble-damage plaintiff who seeks recovery for injuries from a partial or total exclusion from a market; damage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs. Bigelow v. RKO Pictures, Inc., supra, at 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 377-379 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 561-566 (1931). In Bigelow, a treble-damage plaintiff claimed injury from a conspiracy among film distributors to deny him first-run pictures. He offered evidence comparing his profits with those of a competing theater granted first-run showings and also measuring his current profits against those earned when first-run films had been available to him. This Court, reversing the Court of Appeals, found the evidence sufficient to sustain an award of damages. Although the factfinder is not entitled to base a judgment on speculation or guesswork, the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, `juries are allowed to act upon probable and inferential, as well as direct and positive proof.' Story Parchment Co. v. Paterson Co., supra, 561-4; Eastman Kodak Co. v. Southern Photo Co., supra, 377-9. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. 327 U. S., at 264-265. Here, Zenith was denied a valuable license and submitted testimony that without the license it had encountered distribution difficulties which prevented its securing a share of the market comparable to that which it enjoyed in the United States, and which its business proficiency, demonstrated in the United States, dictated it should have obtained in Canada. CRPL was an established organization with a long history of successfully excluding imported merchandise; and in view of its continued existence during the damage period, the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause. The trial court was entitled to infer from this circumstantial evidence that the necessary causal relation between the pool's conduct and the claimed damage existed. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 696-701 (1962).
+Hazeltine patents were made available to the English pool in 1930. The pool issued only package licenses, restricted to local manufacture. Although pool radio patents had expired prior to the beginning of the damage period, the trial court found, and we assume, that the pool held television patents which would not be licensed for television sets made in the United States. [19] Zenith was interested in the English market and made exclusive arrangements with one distributor desiring to handle its merchandise. At no time during or before the damage period, however, did Zenith make available or offer for sale a substantial number of television sets suitable for the English market or make any other serious efforts to enter that market. It attained no appreciable position in the English television market. Having initially found the patent pool responsible over the years for Zenith's failure to participate in the English market, the trial court, after further proceedings, held that a government embargo, not the patent pool, was the sole reason for Zenith's not entering the English market prior to the beginning of the damage period in 1959; until then, the District Court found, the pool [was] not called upon to exercise the type of conduct that [it] exercised in Canada. It did not, however, retreat from its conclusion that restraints imposed by the pool had foreclosed Zenith during the damage period. [20] In this respect we agree with the Court of Appeals that the trial court clearly erred. Based on our own examination of the record, we are convinced that even with the ending of the embargo in mid-1959, Zenith faced other obstacles which effectively discouraged its entry into the English market and for which the pool was not responsible. Positing that Zenith could not get a license from the English pool and that it did not enter the British market before or during the damage period, the issue is whether, once the embargo was lifted, Zenith wanted and intended to enter, had the capacity to do so, and was prevented from entering by its inability to secure a patent license and by other operations of the English patent pool. Section 4 of the Clayton Act required that Zenith show an injury to its business or property by reason of anything forbidden in the antitrust laws. If Zenith's failure to enter the English market was attributable to its lack of desire, its limited production capabilities, or to other factors independent of HRI's unlawful conduct, Zenith would not have met its burden under § 4. [21] Zenith was interested in the English market; this much is clear. But its standard domestic television set was manufactured to operate on 525- and 625-line-per-second scanning signals, whereas the 405-line signal was standard in England until after the damage period. Similarly, while FM transmission was utilized in the United States for the audio portion, AM signals were used in England. Zenith's regular product thus was not salable in the English market. To succeed at all, Zenith had either to produce a differently equipped set or to provide for the mass conversion of its standard receivers. Unquestionably, the company had the facilities and the ability to follow either course. But it is equally clear that it pursued neither. [22] A change in the standard British broadcast to include a 625-line signal was under consideration, even imminent, during the damage period. Zenith's merchandise would in any event have sold at prices substantially higher than those prevailing in the English market; tariffs and freight costs tended to widen the differential. Producing a new set for the English market, or modifying existent models on a large-scale basis, would have involved substantial costs. Based on the evidence before us, including the correspondence between Zenith and its British representative, we think the Court of Appeals correctly rejected the inference that Zenith intended to and was prepared to enter the English television market during the damage period, and correctly concluded that Zenith was in fact waiting for a change in English standards to a 625-line system. 388 F. 2d, at 37. It clearly emerges from the evidence that Zenith had every intention to promote the sale of its television sets if and when the signal change occurred. Given that event, neither the absence of a pool license nor pool threats against it or its customers would have deterred Zenith from a major effort to penetrate the British market. Why the existence of the pool, which as far as the record shows was quiescent during the damage period, should be credited with the power to discourage Zenith's entry before the signal change but not after is difficult to grasp. But the question at hand is not whether, if Zenith had decided to enter the market, the pool would have been a deterrent and inflicted damage. Rather, it is whether Zenith was in fact constrained by the pool to stay out of England during the damage period or whether Zenith's own business calculus led it to await more favorable conditions. As we have said, the latter is the only permissible inference from this record.
+The Australian patent pool, which had exclusive rights to license Hazeltine patents, also granted licenses only for local manufacture. Had HRI and Hazeltine's conspiracy with the Australian pool effectively kept Zenith from that market, a compensable violation of the antitrust laws unquestionably would have occurred. But the findings of the District Court are wholly silent as to how the Australian pool had any impact on Zenith's business. An officer of Zenith revealed that Zenith had exported no products to Australia since the 1920's or early 1930's. Zenith had not requested a pool license during the 20-year period preceding the trial. A government embargo was found by the District Court to have foreclosed Zenith's American-made merchandise until well into the damage period. High tariffs and shipping costs were additional barriers, as well as the prospect of vigorous competition. Nothing in the record before us would permit the inference that Zenith either intended or was prepared to enter the Australian market during the damage period. The Court of Appeals was correct in reversing the District Court's award of damages with respect to the Australian market.",The Treble-Damage Award.
+229,107938,3,1,"The findings of the District Court with respect to the operations of the Canadian pool may be briefly summarized. The Canadian patent pool, Canadian Radio Patents, Ltd. (CRPL), was formed in 1926 by the General Electric Company of the United States through its subsidiary, Canadian General Electric Company, and by Westinghouse through its Canadian subsidiary. The pool was made up largely of Canadian manufacturers, most of which were subsidiaries of American companies. The pool for many years had the exclusive right to sub-license the patents of its member companies and also those of Hazeltine and a number of other foreign concerns. About 5,000 patents were available to the pool for licensing, and only package licenses were granted, covering all patents in the pool and strictly limited to manufacture in Canada. No license to importers was available. The chief purpose of the pool was to protect the manufacturing members and licensees from competition by American and other foreign companies seeking to export their products into Canada. CRPL's efforts to prevent importation of radio and television sets from the United States were highly organized and effective. Agents, investigators, and manufacturer and distributor trade associations systematically policed the market; warning notices and advertisements advised distributors, dealers, and even consumers against selling or using unlicensed equipment. Infringement suits or threats thereof were regularly and effectively employed to dissuade dealers from handling American-made sets. For many years Zenith attempted to establish distribution in Canada, but distributors were warned off by the pool, and Zenith's efforts to secure a license for American-made goods were unsuccessful. Zenith then brought an antitrust suit against RCA, General Electric, and Western Electric. [10] This litigation was favorably settled, Zenith receiving, among other things, worldwide licenses on patents owned by the named defendants. Armed with these and other licenses, Zenith in 1958 began exporting radio and television products to Canada. It was promptly informed by CRPL that to continue business in Canada, Zenith would be required to sign CRPL's standard license, which did not permit importation, and that to sell in Canada it must manufacture there. Zenith was notified at the time that it was infringing at least one of Hazeltine's patents which had been placed with CRPL for licensing in Canada. Soon after this demand by CRPL, HRI began its infringement suit against Zenith. Some of the trial court's findings describing the operations of the Canadian pool and its drastic impact upon Zenith's foreign commerce did not date the events or state whether they had occurred before or after May 22, 1959. The damage award was confined to injuries sustained during the statutory period, but the trial court apparently deemed it immaterial whether the damage-causing acts occurred before or after the start of the damage period. Damages were awarded on the assumption that Zenith, absent the conspiracy, would have had 16% of the Canadian television market on May 22, 1959, and throughout the damage period rather than its actual 3% share. [11] Since the failure to have 16% of the market on the first day of the damage period was ascribed to pool operations, those operations must have occurred prior to May 22, 1959. Some part of the damages awarded, therefore, necessarily resulted from pre-damage period conduct. [12] The Court of Appeals reversed the District Court because it considered the evidence insufficient to prove the fact of any damage to Zenith after May 22, 1959. Having put aside HRI's statute of limitations defense, belatedly raised in the District Court and pressed in the Court of Appeals, [13] the import of the court's decision was that Zenith had not been damaged after May 22, 1959, by any act of the pool, whether occurring before or after that date. The Court of Appeals' overriding judgment—as it had to be if its no-injury rationale were to meet claims of damage period injury from pre-damage period conduct—was that Zenith would have done no more business in Canada after May 22, 1959, had the patent pool never operated in that country. The Court of Appeals was clearly in error. The evidence was quite sufficient to sustain a finding that competing business concerns and patentees joined together to pool their Canadian patents, granting only package licenses and refusing to license imported goods. Their clear purpose was to exclude concerns like Zenith from the Canadian market unless willing to manufacture there. Zenith, consequently, was never able to obtain a license. This fact and the pool's vigorous campaign to discourage importers, distributors, dealers, and consumers from selling, handling, or using unlicensed foreign merchandise effectively prevented Zenith from making any headway in the Canadian market until after the 1957 settlement with RCA and its codefendants. And even in 1958, when Zenith undertook in earnest to establish its distribution system in Canada and to market its merchandise, Zenith was met with further pool advertisements threatening action against imported goods and further notifications, continuing past May 22, 1959, that its products were infringing pool patents and that no license was available unless Zenith manufactured in Canada. This evidence clearly warrants the inference that CRPL's past conduct interfered with and made more difficult the distribution of Zenith products in 1959 and later years. The District Court could reasonably conclude that the cumulative effects of the pool's campaign against imported goods had consequences lasting well into the damage period. It could also rationally be found from the evidence that Zenith, beginning in 1958, could not have reached its maximum potential by May 22, 1959, that the pool had effectively prevented an earlier beginning, and that Zenith therefore suffered damage during the damage period from having a smaller share of the market than it would have had if the pool had never existed. We also conclude that the record evidence is sufficient to support a finding of damage resulting from events occurring after the beginning of the damage period. We need not merely assume that the Canadian pool continued throughout the period of this suit, as we are entitled to do in the absence of clear evidence of its termination. See, e. g., Local 167 v. United States, 291 U. S. 293, 297-298 (1934); United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952). HRI frankly conceded the continuation of the pool before the District Court, [14] and it appears sufficiently clear that throughout this time Zenith was deprived of what had always been refused it—a license on pool patents permitting it to sell American-made merchandise in Canada. On May 12, 1959, the pool manager conferred with Zenith's vice president, informing him that Zenith was infringing pool patents and would require a license, but that licenses were granted only for local manufacture. This was followed on June 5, 1959, by a letter stating without reservation that Zenith receivers were infringing, and enclosing the pool's standard license form. This was nothing more nor less than a demand during the damage period that Zenith either manufacture in Canada and take the standard package license or cease its activities in that country. [15] There is no evidence that the pool ever retreated from that position during the next four years. Zenith thus continued to operate without a patent license unburdened by conspiratorial conduct and granted on terms which would satisfy the antitrust laws. This deprivation in itself necessarily had an impact on Zenith and constituted an injury to its business. We find singularly unpersuasive the argument that Zenith was as well off without a license as with one. This is little more than an assertion that pool licenses, from which CRPL and its participants enjoyed substantial income, were without value. Without the license, doing business in Canada obviously involved weighty risks for Zenith itself, besides requiring it to convince the trade that it could legally and effectively do business without clearance from CRPL. [16] Of course, Zenith determined to take these risks, serious as they were. Although HRI brought the instant litigation claiming infringement of an HRI domestic patent, the foreign counterpart of which had been made available to the Canadian pool by Hazeltine, Zenith persevered in its Canadian efforts. The claim is now pressed, and the Court of Appeals held, that the pool bothered neither Zenith nor its distributors after mid-1959 and that Zenith ran the gantlet so successfully that not having a license made no difference whatsoever. It is true that the record discloses no specific instance of subsequent infringement suits or threats against Zenith's existing or potential distributors or dealers. But there is evidence that the pool was not dormant after May 1959. The record contains a letter from the pool to a distributor of Motorola products containing clear warnings against handling unlicensed, imported merchandise. [17] More significant, the fair import of the testimony by Zenith officers was that the pool remained active during the damage period and prevented Zenith from establishing an effective distribution system throughout Canada. Zenith was able to obtain independent distributors in the Western Provinces, but it was unable to do so in the Central and the Maritime Provinces, where it necessarily relied on its own subsidiaries for distribution. These officers, experienced businessmen, also testified to the similarities between the Canadian and American markets, attributing Zenith's much poorer Canadian performance to the discouraging and repressive effects of the pool. The Court of Appeals did not refuse to credit this testimony, as HRI insists we should do, [18] but accepting it as some evidence of damage, considered it of insufficient weight to prove injury to Zenith's business. In this respect the Court of Appeals both gave insufficient deference to the findings of the trial judge and failed to adhere to the teachings of Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251 (1946), and other cases dealing with the standard of proof in treble-damage actions. In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52 (a) is not whether it would have made the findings the trial court did, but whether on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948). See also United States v. National Assn. of Real Estate Boards, 339 U. S. 485, 495-496 (1950); Commissioner v. Duberstein, 363 U. S. 278, 289-291 (1960). Trial and appellate courts alike must also observe the practical limits of the burden of proof which may be demanded of a treble-damage plaintiff who seeks recovery for injuries from a partial or total exclusion from a market; damage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the factfinder may conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs. Bigelow v. RKO Pictures, Inc., supra, at 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 377-379 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 561-566 (1931). In Bigelow, a treble-damage plaintiff claimed injury from a conspiracy among film distributors to deny him first-run pictures. He offered evidence comparing his profits with those of a competing theater granted first-run showings and also measuring his current profits against those earned when first-run films had been available to him. This Court, reversing the Court of Appeals, found the evidence sufficient to sustain an award of damages. Although the factfinder is not entitled to base a judgment on speculation or guesswork, the jury may make a just and reasonable estimate of the damage based on relevant data, and render its verdict accordingly. In such circumstances, `juries are allowed to act upon probable and inferential, as well as direct and positive proof.' Story Parchment Co. v. Paterson Co., supra, 561-4; Eastman Kodak Co. v. Southern Photo Co., supra, 377-9. Any other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery, by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery. 327 U. S., at 264-265. Here, Zenith was denied a valuable license and submitted testimony that without the license it had encountered distribution difficulties which prevented its securing a share of the market comparable to that which it enjoyed in the United States, and which its business proficiency, demonstrated in the United States, dictated it should have obtained in Canada. CRPL was an established organization with a long history of successfully excluding imported merchandise; and in view of its continued existence during the damage period, the injury alleged by Zenith was precisely the type of loss that the claimed violations of the antitrust laws would be likely to cause. The trial court was entitled to infer from this circumstantial evidence that the necessary causal relation between the pool's conduct and the claimed damage existed. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690, 696-701 (1962).",The Canadian Pool.
+230,107938,3,2,"Hazeltine patents were made available to the English pool in 1930. The pool issued only package licenses, restricted to local manufacture. Although pool radio patents had expired prior to the beginning of the damage period, the trial court found, and we assume, that the pool held television patents which would not be licensed for television sets made in the United States. [19] Zenith was interested in the English market and made exclusive arrangements with one distributor desiring to handle its merchandise. At no time during or before the damage period, however, did Zenith make available or offer for sale a substantial number of television sets suitable for the English market or make any other serious efforts to enter that market. It attained no appreciable position in the English television market. Having initially found the patent pool responsible over the years for Zenith's failure to participate in the English market, the trial court, after further proceedings, held that a government embargo, not the patent pool, was the sole reason for Zenith's not entering the English market prior to the beginning of the damage period in 1959; until then, the District Court found, the pool [was] not called upon to exercise the type of conduct that [it] exercised in Canada. It did not, however, retreat from its conclusion that restraints imposed by the pool had foreclosed Zenith during the damage period. [20] In this respect we agree with the Court of Appeals that the trial court clearly erred. Based on our own examination of the record, we are convinced that even with the ending of the embargo in mid-1959, Zenith faced other obstacles which effectively discouraged its entry into the English market and for which the pool was not responsible. Positing that Zenith could not get a license from the English pool and that it did not enter the British market before or during the damage period, the issue is whether, once the embargo was lifted, Zenith wanted and intended to enter, had the capacity to do so, and was prevented from entering by its inability to secure a patent license and by other operations of the English patent pool. Section 4 of the Clayton Act required that Zenith show an injury to its business or property by reason of anything forbidden in the antitrust laws. If Zenith's failure to enter the English market was attributable to its lack of desire, its limited production capabilities, or to other factors independent of HRI's unlawful conduct, Zenith would not have met its burden under § 4. [21] Zenith was interested in the English market; this much is clear. But its standard domestic television set was manufactured to operate on 525- and 625-line-per-second scanning signals, whereas the 405-line signal was standard in England until after the damage period. Similarly, while FM transmission was utilized in the United States for the audio portion, AM signals were used in England. Zenith's regular product thus was not salable in the English market. To succeed at all, Zenith had either to produce a differently equipped set or to provide for the mass conversion of its standard receivers. Unquestionably, the company had the facilities and the ability to follow either course. But it is equally clear that it pursued neither. [22] A change in the standard British broadcast to include a 625-line signal was under consideration, even imminent, during the damage period. Zenith's merchandise would in any event have sold at prices substantially higher than those prevailing in the English market; tariffs and freight costs tended to widen the differential. Producing a new set for the English market, or modifying existent models on a large-scale basis, would have involved substantial costs. Based on the evidence before us, including the correspondence between Zenith and its British representative, we think the Court of Appeals correctly rejected the inference that Zenith intended to and was prepared to enter the English television market during the damage period, and correctly concluded that Zenith was in fact waiting for a change in English standards to a 625-line system. 388 F. 2d, at 37. It clearly emerges from the evidence that Zenith had every intention to promote the sale of its television sets if and when the signal change occurred. Given that event, neither the absence of a pool license nor pool threats against it or its customers would have deterred Zenith from a major effort to penetrate the British market. Why the existence of the pool, which as far as the record shows was quiescent during the damage period, should be credited with the power to discourage Zenith's entry before the signal change but not after is difficult to grasp. But the question at hand is not whether, if Zenith had decided to enter the market, the pool would have been a deterrent and inflicted damage. Rather, it is whether Zenith was in fact constrained by the pool to stay out of England during the damage period or whether Zenith's own business calculus led it to await more favorable conditions. As we have said, the latter is the only permissible inference from this record.",The English Pool.
+231,107938,3,3,"The Australian patent pool, which had exclusive rights to license Hazeltine patents, also granted licenses only for local manufacture. Had HRI and Hazeltine's conspiracy with the Australian pool effectively kept Zenith from that market, a compensable violation of the antitrust laws unquestionably would have occurred. But the findings of the District Court are wholly silent as to how the Australian pool had any impact on Zenith's business. An officer of Zenith revealed that Zenith had exported no products to Australia since the 1920's or early 1930's. Zenith had not requested a pool license during the 20-year period preceding the trial. A government embargo was found by the District Court to have foreclosed Zenith's American-made merchandise until well into the damage period. High tariffs and shipping costs were additional barriers, as well as the prospect of vigorous competition. Nothing in the record before us would permit the inference that Zenith either intended or was prepared to enter the Australian market during the damage period. The Court of Appeals was correct in reversing the District Court's award of damages with respect to the Australian market.",The Australian Pool.
+232,107938,2,2,"In setting aside the District Court's grant of injunctive relief against continued participation by HRI and Hazeltine in any patent pool or similar association restricting Zenith's export trade, [23] the Court of Appeals stated, without more: It follows from our conclusion with respect to the foreign patent pools that injunctive relief against `threatened loss or damage' directed at those pools, alleged by Zenith to be unlawful conspiracies, cannot be justified under 15 U. S. C. Sec. 26. Paragraph C of the injunction granted must be stricken. 388 F. 2d, at 39. The evident premise for striking Paragraph C was that Zenith's failure to prove the fact of injury barred injunctive relief as well as treble damages. This was unsound, for § 16 of the Clayton Act, 15 U. S. C. § 26, which was enacted by the Congress to make available equitable remedies previously denied private parties, invokes traditional principles of equity and authorizes injunctive relief upon the demonstration of threatened injury. [24] That remedy is characteristically available even though the plaintiff has not yet suffered actual injury, see Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., 274 U. S. 37, 54-55 (1927); he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur. See Swift & Co. v. United States, 196 U. S. 375, 396 (1905); Bedford Cut Stone Co. v. Journeymen Stone Cutters' Assn., supra, at 54; United States v. Oregon State Medical Society, 343 U. S. 326, 333 (1952); United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). Moreover, the purpose of giving private parties treble-damage and injunctive remedies was not merely to provide private relief, but was to serve as well the high purpose of enforcing the antitrust laws. E. g., United States v. Borden Co., 347 U. S. 514, 518 (1954). Section 16 should be construed and applied with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). Its availability should be conditioned by the necessities of the public interest which Congress has sought to protect. Id., at 330. Judged by the proper standard, the record before us warranted the injunction with respect to Canada. The findings of the District Court were that HRI and CRPL were conspiring to exclude Zenith and others from the Canadian market; there was nothing indicating that this clear violation of the antitrust laws had terminated or that the threat to Zenith inherent in the conduct would cease in the foreseeable future. Neither the relative quiescence of the pool during the litigation nor claims that objectionable conduct would cease with the judgment negated the threat to Zenith's foreign trade. [25] That threat was too clear for argument, and injunctive relief against HRI with respect to the Canadian market was wholly proper. We also reinstate the injunction entered by the District Court insofar as it more broadly barred HRI from conspiring with others to restrict or prevent Zenith from entering any other foreign market. In exercising its equitable jurisdiction, [a] federal court has broad power to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated from the defendant's conduct in the past. NLRB v. Express Publishing Co., 312 U. S. 426, 435 (1941). See also United States v. National Lead Co., 332 U. S. 319, 328-335 and n. 4 (1947). Given the findings that HRI was conspiring with the Canadian pool, its purpose to exclude Zenith from Canada and its violation of the Sherman Act were clearly established. Its propensity for arrangements of this sort was also indicated by the findings revealing its participation in similar pools operating in England and Australia. [26] Zenith, a company interested in expanding its foreign commerce and having suffered at the hands of HRI and its coconspirators in the Canadian market, was entitled to injunctive relief against like conduct by HRI in other world markets. We see no reason that the federal courts, in exercising the traditional equitable powers extended to them by § 16, should not respond to the salutary principle that when one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts. NLRB v. Express Publishing Co., supra, at 436. Although a district court may not enjoin all future illegal conduct of the defendant, or even all future violations of the antitrust laws, however unrelated to the violation found by the court, e. g., New York, N. H. & H. R. Co. v. ICC, 200 U. S. 361, 401 (1906), [w]hen the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed. International Salt Co. v. United States, 332 U. S. 392, 400 (1947). This is particularly true in treble-damage cases, which are brought for private ends, but which also serve the public interest in that they effectively pry open to competition a market that has been closed by defendants' illegal restraints. Id., at 401.",The Injunction.
+233,107938,1,3,"Since the District Court's treble damage award for patent misuse was affirmed by the Court of Appeals, and HRI has not challenged that award in this Court, the only misuse issue we need consider at length is whether the Court of Appeals was correct in striking the last clause from Paragraph A of the injunction, [27] which enjoined HRI from A. Conditioning directly or indirectly the grant of a license to defendant-counterclaimant, Zenith Radio Corporation, or any of its subsidiaries, under any domestic patent upon the taking of a license under any other patent or upon the paying of royalties on the manufacture, use or sale of apparatus not covered by such patent.  (Emphasis added.) This paragraph of the injunction was directed at HRI's policy of insisting upon acceptance of its standard five-year package license agreement, covering the 500-odd patents within its domestic licensing portfolio and reserving royalties on the licensee's total radio and television sales, irrespective of whether the licensed patents were actually used in the products manufactured. [28] In striking the last clause of Paragraph A the Court of Appeals, in effect, made two determinations. First, under its view of Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U. S. 827 (1950), conditioning the grant of a patent license upon payment of royalties on unpatented products was not misuse of the patent. Second, since such conduct did not constitute patent misuse, neither could it be violative of the antitrust laws within the meaning of § 16 of the Clayton Act, under which Zenith had sought and the District Court had granted the injunction. With respect to the first determination, we reverse the Court of Appeals. We hold that conditioning the grant of a patent license upon payment of royalties on products which do not use the teaching of the patent does amount to patent misuse. The trial court's injunction does not purport to prevent the parties from serving their mutual convenience by basing royalties on the sale of all radios and television sets, irrespective of the use of HRI's inventions. The injunction reaches only situations where the patentee directly or indirectly conditions his license upon the payment of royalties on unpatented products—that is, where the patentee refuses to license on any other basis and leaves the licensee with the choice between a license so providing and no license at all. Also, the injunction takes effect only if the license is conditioned upon the payment of royalties on merchandise not covered by the patent—where the express provisions of the license or their necessary effect is to employ the patent monopoly to collect royalties, not for the use of the licensed invention, but for using, making, or selling an article not within the reach of the patent. A patentee has the exclusive right to manufacture, use, and sell his invention. See, e. g., Bement v. National Harrow Co., 186 U. S. 70, 88-89 (1902). The heart of his legal monopoly is the right to invoke the State's power to prevent others from utilizing his discovery without his consent. See, e. g., Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405 (1908); Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U. S. 24 (1923). The law also recognizes that he may assign to another his patent, in whole or in part, and may license others to practice his invention. See, e. g., Waterman v. Mackenzie, 138 U. S. 252, 255 (1891). But there are established limits which the patentee must not exceed in employing the leverage of his patent to control or limit the operations of the licensee. Among other restrictions upon him, he may not condition the right to use his patent on the licensee's agreement to purchase, use, or sell, or not to purchase, use, or sell, another article of commerce not within the scope of his patent monopoly. E. g., Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 455-459 (1940); International Salt Co. v. United States, 332 U. S. 392, 395-396 (1947). His right to set the price for a license does not extend so far, whatever privilege he has to exact royalties as high as he can negotiate. Brulotte v. Thys Co., 379 U. S. 29, 33 (1964). And just as the patent's leverage may not be used to extract from the licensee a commitment to purchase, use, or sell other products according to the desires of the patentee, neither can that leverage be used to garner as royalties a percentage share of the licensee's receipts from sales of other products; in either case, the patentee seeks to extend the monopoly of his patent to derive a benefit not attributable to use of the patent's teachings. In Brulotte v. Thys Co., supra , the patentee licensed the use of a patented machine, the license providing for the payment of a royalty for using the invention after, as well as before, the expiration date of the patent. Recognizing that the patentee could lawfully charge a royalty for practicing a patented invention prior to its expiration date and that the payment of this royalty could be postponed beyond that time, we noted that the post-expiration royalties were not for prior use but for current use, and were nothing less than an effort by the patentee to extend the term of his monopoly beyond that granted by law. Brulotte thus articulated in a particularized context the principle that a patentee may not use the power of his patent to levy a charge for making, using, or selling products not within the reach of the monopoly granted by the Government. Automatic Radio is not to the contrary; it is not authority for the proposition that patentees have carte blanche authority to condition the grant of patent licenses upon the payment of royalties on unpatented articles. In that case, Automatic Radio acquired the privilege of using all present and future HRI patents by promising to pay a percentage royalty based on the selling price of its radio receivers, with a minimum royalty of $10,000 per year. HRI sued for the minimum royalty and other sums. Automatic Radio asserted patent misuse in that the agreement extracted royalties whether or not any of the patents were in any way used in Automatic Radio receivers. The District Court and the Court of Appeals approved the agreement as a convenient method designed by the parties to avoid determining whether each radio receiver embodied an HRI patent. The percentage royalty was deemed an acceptable alternative to a lump-sum payment for the privilege to use the patents. This Court affirmed. Finding the tie-in cases such as International Salt Co. v. United States, 332 U. S. 392 (1947), inapposite, and distinguishing United States v. United States Gypsum Co., 333 U. S. 364 (1948), as involving a conspiracy between patentee and licensees to eliminate competition, the Court considered reasonable the payment of royalties according to an agreed percentage of the licensee's sales, since [s]ound business judgment could indicate that such payment represents the most convenient method of fixing the business value of the privileges granted by the licensing agreement. 339 U. S., at 834. It found nothing inherent in such a royalty provision which would extend the patent monopoly. Finally, the holding by the Court was stated to be that in licensing the use of patents it is not per se a misuse of patents to measure the consideration by a percentage of the licensee's sales. Ibid. Nothing in the foregoing is inconsistent with the District Court's injunction against conditioning a license upon the payment of royalties on unpatented products or with the principle that patent leverage may not be employed to collect royalties for producing merchandise not employing the patented invention. The Court's opinion in Automatic Radio did not deal with the license negotiations which spawned the royalty formula at issue and did not indicate that HRI used its patent leverage to coerce a promise to pay royalties on radios not practicing the learning of the patent. No such inference follows from a mere license provision measuring royalties by the licensee's total sales even if, as things work out, only some or none of the merchandise employs the patented idea or process, or even if it was foreseeable that some undetermined portion would not contain the invention. It could easily be, as the Court indicated in Automatic Radio, that the licensee as well as the patentee would find it more convenient and efficient from several stand-points to base royalties on total sales than to face the burden of figuring royalties based on actual use. [29] If convenience of the parties rather than patent power dictates the total-sales royalty provision, there are no misuse of the patents and no forbidden conditions attached to the license. The Court also said in Automatic Radio that if the licensee bargains for the privilege of using the patent in all of his products and agrees to a lump sum or a percentage-of-total-sales royalty, he cannot escape payment on this basis by demonstrating that he is no longer using the invention disclosed by the patent. We neither disagree nor think such transactions are barred by the trial court's injunction. If the licensee negotiates for the privilege to use any or all of the patents and developments as [he] desire[s] to use them, 339 U. S., at 834, he cannot complain that he must pay royalties if he chooses to use none of them. He could not then charge that the patentee had refused to license except on the basis of a total-sales royalty. But we do not read Automatic Radio to authorize the patentee to use the power of his patent to insist on a total-sales royalty and to override protestations of the licensee that some of his products are unsuited to the patent or that for some lines of his merchandise he has no need or desire to purchase the privileges of the patent. In such event, not only would royalties be collected on unpatented merchandise, but the obligation to pay for nonuse would clearly have its source in the leverage of the patent. We also think patent misuse inheres in a patentee's insistence on a percentage-of-sales royalty, regardless of use, and his rejection of licensee proposals to pay only for actual use. Unquestionably, a licensee must pay if he uses the patent. Equally, however, he may insist upon paying only for use, and not on the basis of total sales, including products in which he may use a competing patent or in which no patented ideas are used at all. There is nothing in the right granted the patentee to keep others from using, selling, or manufacturing his invention which empowers him to insist on payment not only for use but also for producing products which do not employ his discoveries at all. Of course, a licensee cannot expect to obtain a license, giving him the privilege of use and insurance against infringement suits, without at least footing the patentee's expenses in dealing with him. He cannot insist upon paying on use alone and perhaps, as things turn out, pay absolutely nothing because he finds he can produce without using the patent. If the risks of infringement are real and he would avoid them, he must anticipate some minimum charge for the license—enough to insure the patentee against loss in negotiating and administering his monopoly, even if in fact the patent is not used at all. But we discern no basis in the statutory monopoly granted the patentee for his using that monopoly to coerce an agreement to pay a percentage royalty on merchandise not employing the discovery which the claims of the patent define. Although we have concluded that Automatic Radio does not foreclose the injunction entered by the District Court, it does not follow that the injunction was otherwise proper. Whether the trial court correctly determined that HRI was conditioning the grant of patent licenses upon the payment of royalties on unpatented products has not yet been determined by the Court of Appeals. And if there was such patent misuse, it does not necessarily follow that the misuse embodies the ingredients of a violation of either § 1 or § 2 of the Sherman Act, or that Zenith was threatened by a violation so as to entitle it to an injunction under § 16 of the Clayton Act. See, e. g., Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488, 490 (1942); Transparent-Wrap Machine Corp. v. Stokes & Smith Co., 329 U. S. 637, 641 (1947); Laitram Corp. v. King Crab, Inc., 245 F. Supp. 1019 (D. C. Alaska 1965). See also Report of the Attorney General's National Committee to Study the Antitrust Laws 254 (1955); R. Nordhaus & E. Jurow, Patent-Antitrust Law 122-123 (1961); Frost, Patent Misuse As A Per Se Antitrust Violation, in Conference on the Antitrust Laws and the Attorney General's Committee Report 113-123 (J. Rahl & E. Zaidins ed., 1955). Cf. Staff of Antitrust Subcommittee of House Committee on the Judiciary, 84th Cong., 2d Sess., Antitrust Problems in the Exploitation of Patents 23 (Comm. Print. 1956); Schueller, The New Antitrust Illegality Per Se: Forestalling and Patent Misuse, 50 Col. L. Rev. 170, 184-200 (1950). Whether the findings and the evidence are sufficient to make out an actual or threatened violation of the antitrust laws so as to justify the injunction issued by the District Court has not been considered by the Court of Appeals, and we leave the matter to be dealt with by that court in the first instance. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.",the patent-misuse issue.
+234,112635,1,1,"(a) A person who knowingly or intentionally, in a public place: (1) engages in sexual intercourse; (2) engages in deviate sexual conduct; (3) appears in a state of nudity; or (4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. (b) `Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state. Ind. Code § 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: Indiana does not regulate dancing. It regulates public nudity.. . . Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech. Miller v. Civil City of South Bend, 904 F. 2d 1081, 1120 (CA7 1990). The intent to convey a message of eroticism (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit message of eroticism, so long as he does not commit any of the four specified acts in the process. [1] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of the freedom of speech. Public indecency—including public nudity—has long been an offense at common law. See 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity § 17, pp. 449, 472-474 (1970); Annot., Criminal offense predicated on indecent exposure, 93 A. L. R. 996, 997-998 (1934); Winters v. New York, 333 U. S. 507, 515 (1948). Indiana's first public nudity statute, Rev. Laws of Ind., ch. 26, § 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F. 2d, at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N. E. 2d 856, 857 (Ind. 1987); In re Levinson, 444 N. E. 2d 1175, 1176 (Ind. 1983); Preston v. State, 259 Ind. 353, 354-355, 287 N. E. 2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 N. E. 2d 503, 504-505 (1958); Blanton v. State, 533 N. E. 2d 190, 191 (Ind. App. 1989); Sweeney v. State, 486 N. E. 2d 651, 652 (Ind. App. 1985); Thompson v. State, 482 N. E. 2d 1372, 1373-1374 (Ind. App. 1985); Adims v. State, 461 N. E. 2d 740, 741-742 (Ind. App. 1984); State v. Elliott, 435 N. E. 2d 302, 304 (Ind. App. 1982); Lasko v. State, 409 N. E. 2d 1124, 1126 (Ind. App. 1980). [2] The dissent confidently asserts, post, at 590-591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that offense to others ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever shared that Thoreauvian you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, contra bonos mores, i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them), there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate morality. See Bowers v. Hardwick, 478 U. S. 186, 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable). See also Paris Adult Theatre I v. Slaton, 413 U. S. 49, 68, n. 15 (1973); Dronenburg v. Zech, 239 U. S. App. D. C. 229, 238, and n. 6, 741 F. 2d 1388, 1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication. [3]",Indiana's public indecency statute provides:
+235,109345,1,2,"The False Claims Act provides that a person who shall do or commit any of the acts prohibited by Rev. Stat. § 5438 shall forfeit and pay to the United States the sum of two thousand dollars . . . . Rev. Stat. § 3490. Section 5438 makes it illegal for a person to present or cause to be presented for payment or approval . . . any claim upon or against the Government of the United States . . . knowing such claim to be false, fictitious, or fraudulent. It is settled that the Act permits recovery of multiple forfeitures and that it gives the United States a cause of action against a subcontractor who causes a prime contractor to submit a false claim to the Government. See United States ex rel. Marcus v. Hess, 317 U. S. 537. The precise issue presented here is whether the subcontractor should be liable for each claim submitted by its prime contractor or whether it should be liable only for certain identifiable acts that it itself committed. [4] The legislative history of the Act offers little guidance on how properly to determine the number of forfeitures. The Act was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War. [5] There is no indication that Congress gave any thought to the question of how the number of forfeitures should be determined in cases involving subcontractor fraud. But the absence of specific legislative history in no way modifies the conventional judicial duty to give faithful meaning to the language Congress adopted in the light of the evident legislative purpose in enacting the law in question. The respondents defend the decision of the Court of Appeals that held them liable for only one forfeiture. In reaching this conclusion the Court of Appeals relied principally on its earlier decision in United States v. Rohleder, 157 F. 2d 126 (CA3), where it found that 16 forfeitures were appropriate because 16 contracts were involved. The Rohleder court had relied in turn on this Court's decision in United States ex rel. Marcus v. Hess, supra . The Hess case involved several electrical contractors who had collusively bid on 56 Public Works Administration projects. The District Court in Hess had imposed 56 forfeitures, rejecting the defendants' claim that only one forfeiture should have been imposed because there had been only one fraudulent scheme. This Court concluded that the District Court was correct because the incidence of fraud on each separate project was clearly individualized. 317 U. S., at 552. No party argued in this Court that more than 56 forfeitures should have been imposed, and no statement in the Hess opinion expressly limited the number of impossible forfeitures to the number of contracts involved in a case. Hess simply approved the result reached by the District Court which had found that in each project there was a single, false, or fraudulent claim. 41 F. Supp. 197, 216 (WD Pa.). The Hess case, therefore, in no way stands for the proposition that the number of forfeitures is inevitably measured by the number of contracts involved in a case. Such an automatic measurement would ignore the plain language of the statute, as the present case itself illustrates. United is liable under the statute only because it engaged in conduct that caused false claims to be submitted to the United States. While it is true that no false claims would have been submitted had United and Model not entered into a contractual relationship, the entry into that relationship did not in itself cause the submission of any false claims. Had United shipped tubes of the required quality to Model, no false claims would have been presented. By the same token, Model was not caused to file a false claim until it received shipments of falsely branded tubes from United. The language of the statute focuses on false claims, not on contracts. See n. 4, supra. That language does not support a conclusion that United is chargeable with only one forfeiture in this case. To equate the number of forfeitures with the number of contracts would in a case such as this result almost always in but a single forfeiture, no matter how many fraudulent acts the subcontractor might have committed. This result would not only be at odds with the statutory language; it would also defeat the statutory purpose. [6] Such a limitation would, in the language of the Government's brief, convert the Act's forfeiture provision into little more than a $2,000 license for subcontractor fraud. At the other extreme, the Government urges that 35 forfeitures should be assessed, in accord with the position of the District Court, which ruled that [United's fraudulent] acts caused Model to submit thirty-five false claims, each of which constituted a separate violation justifying a separate forfeiture. 361 F. Supp., at 879. The difficulty with this position is that it fails to distinguish between the acts committed by Model and the acts committed by United. [7] The distinction is a critical one, because the statute imposes liability only for the commission of acts which cause false claims to be presented. If United had committed one act which caused Model to file a false claim, it would clearly be liable for a single forfeiture. If, as a result of the same act by United, Model had filed three false claims, United would still have committed only one act that caused the filing of false claims, and thus, under the language of the statute, would again be liable for only one forfeiture. If, on the other hand, United had committed three separate such causative acts, United would be liable for three forfeitures, even if Model had filed only one false claim. The Act, in short, penalizes a person for his own acts, not for the acts of someone else. The Government's claim that United caused Model to submit 35 false claims is simply not accurate. While United committed certain acts which caused Model to submit false claims, it did not cause Model to submit any particular number of false claims. The fact that Model chose to submit 35 false claims instead of some other number was, so far as United was concerned, wholly irrelevant—completely fortuitous and beyond United's knowledge or control. The Government suggests that United assumed the risk that Model might send 35 invoices when United sent the falsely branded tubes to Model. The statute, however, does not penalize United for what Model did. It penalizes United for what it did. The construction given to the statutory language by the District Court is, therefore, no more satisfactory than the interpretation adopted by the Court of Appeals. A correct application of the statutory language requires, rather, that the focus in each case be upon the specific conduct of the person from whom the Government seeks to collect the statutory forfeitures. In the present case United committed three acts which caused Model to submit false claims to the Government—the three separately invoiced shipments to Model. If United had not shipped any falsely branded tubes to Model, Model could not have incorporated such tubes into its radio kits and would not have had occasion to submit any false claims to the United States. When, however, United dispatched each shipment of falsely marked tubes to Model, it did so knowing that Model would incorporate the tubes into the radio kits it later shipped to the Government, and that it would ask for payment from the Government on account of those tubes. Thus, United's three shipments of falsely branded tubes to Model caused Model to submit false claims to the United States, and United is thus liable for three $2,000 statutory forfeitures representing the three separate shipments that it made to Model. [8]",The Number of Statutory Forfeitures
+236,109345,1,3,"In the District Court [t]he Government . . . established that the per unit cost to replace the [falsely branded] tubes was $40.82. 361 F. Supp., at 875. Finding that the Government had already received $40.72 per tube as damages from Model, the court concluded, and the Court of Appeals agreed, that the Government's total statutory damages were $79.40—double the 10-cent difference per tube between its replacement costs and the payment already received from Model for the 397 tubes. The Government argues that both courts were wrong, and that its damages under the Act should be calculated by doubling the amount of its original loss and only then deducting Model's payment from that doubled amount. [9] We agree that the Government's damages should be doubled before any compensatory payments are deducted, because that method of computation most faithfully conforms to the language and purpose of the Act. [10] Although there is nothing in the legislative history that specifically bears on the question of how to calculate double damages, past decisions of this Court have reflected a clear understanding that Congress intended the double-damages provision to play an important role in compensating the United States in cases where it has been defrauded. We think the chief purpose of the [Act's civil penalties] was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole. United States ex rel. Marcus v. Hess, 317 U. S., at 551-552. For several different reasons, this make-whole purpose of the Act is best served by doubling the Government's damages before any compensatory payments are deducted. First, this method of computation comports with the congressional judgment that double damages are necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims. [11] Second, the rule that damages should be doubled prior to any deductions fixes the liability of the defrauder without reference to the adventitious actions of other persons. The position adopted by the Court of Appeals would mean that two subcontractors who committed similar acts and caused similar damage could be subjected to widely disparate penalties depending upon whether and to what extent their prime contractors had paid the Government in settlement of the Government's claims against them. Just as fortuitous acts of the prime contractor should not determine the liability of the sub-contractor under the forfeiture provision of the Act, so likewise the prime contractor's fortuitous acts should not determine the liability of the subcontractor under the double-damages provision. Third, the reasoning of the Court of Appeals and the District Court would enable the subcontractor to avoid the Act's double-damages provision by tendering the amount of the undoubled damages at any time prior to judgment. This possibility would make the double-damages provision meaningless. Doubling the Government's actual damages before any deduction is made for payments previously received from any source in mitigation of those damages forecloses such a result. [12] For these reasons we hold that, in computing the double damages authorized by the Act, the Government's actual damages are to be doubled before any subtractions are made for compensatory payments previously received by the Government from any source. [13] This method of computation, which maximizes the deterrent impact of the double-damages provision and fixes the relative rights and liabilities of the respective parties with maximum precision, best comports in our view with the language and purpose of the Act. The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case.",Computation of Double Damages
+237,112448,1,1,"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Amendment protects two distinct interests. The prohibition against unreasonable searches and the requirement that a warrant particularly describ[e] the place to be searched protect an interest in privacy. The prohibition against unreasonable seizures and the requirement that a warrant particularly describ[e] . . . the . . . things to be seized protect a possessory interest in property. [1] See ante, at 133; Texas v. Brown, 460 U. S. 730, 747 (1983) (STEVENS, J., concurring in judgment). The Fourth Amendment, by its terms, declares the privacy and possessory interests to be equally important. As this Court recently stated: Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, neither the one nor the other is of inferior worth or necessarily requires only lesser protection. Arizona v. Hicks, 480 U. S. 321, 328 (1987) (citation omitted). The Amendment protects these equally important interests in precisely the same manner: by requiring a neutral and detached magistrate to evaluate, before the search or seizure, the government's showing of probable cause and its particular description of the place to be searched and the items to be seized. Accordingly, just as a warrantless search is per se unreasonable absent exigent circumstances, so too a seizure of personal property is  per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. United States v. Place, 462 U. S. 696, 701 (1983) (footnote omitted) (citing Marron v. United States, 275 U. S. 192, 196 (1927)). Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. United States v. United States District Court, Eastern District of Michigan, 407 U. S. 297, 318 (1972). A decision to invade a possessory interest in property is too important to be left to the discretion of zealous officers engaged in the often competitive enterprise of ferreting out crime. Johnson v. United States, 333 U. S. 10, 14 (1948). The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Marron, supra, at 196. The plain-view doctrine is an exception to the general rule that a seizure of personal property must be authorized by a warrant. As Justice Stewart explained in Coolidge, 403 U. S., at 470, we accept a warrantless seizure when an officer is lawfully in a location and inadvertently sees evidence of a crime because of the inconvenience of procuring a warrant to seize this newly discovered piece of evidence. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the argument that procuring a warrant would be inconvenient loses much, if not all, of its force. Ibid. Barring an exigency, there is no reason why the police officers could not have obtained a warrant to seize this evidence before entering the premises. The rationale behind the inadvertent discovery requirement is simply that we will not excuse officers from the general requirement of a warrant to seize if the officers know the location of evidence, have probable cause to seize it, intend to seize it, and yet do not bother to obtain a warrant particularly describing that evidence. To do so would violate the express constitutional requirement of `Warrants . . . particularly describing . . . [the] things to be seized,'  and would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure. Id., at 471. Although joined by only three other Members of the Court, Justice Stewart's discussion of the inadvertent discovery requirement has become widely accepted. See Texas v. Brown, supra, at 746 (Powell, J., concurring in judgment) (Whatever my view might have been when Coolidge was decided, I see no reason at this late date to imply criticism of its articulation of this exception. It has been accepted generally for over a decade). Forty-six States and the District of Columbia [2] and 12 United States Courts of Appeals [3] now require plain-view seizures to be inadvertent. There has been no outcry from law enforcement officials that the inadvertent discovery requirement unduly burdens their efforts. Given that the requirement is inescapably rooted in the plain language of the Fourth Amendment, I cannot fathom the Court's enthusiasm for discarding this element of the plain-view doctrine. The Court posits two flaws in Justice Stewart's reasoning that it believes demonstrate the inappropriateness of the inadvertent discovery requirement. But these flaws are illusory. First, the majority explains that it can see no reason why an officer who has knowledge approaching certainty that an item will be found in a particular location would deliberately omit a particular description of the item to be seized from the application for a search warrant. Ante, at 138. But to the individual whose possessory interest has been invaded, it matters not why the police officer decided to omit a particular item from his application for a search warrant. When an officer with probable cause to seize an item fails to mention that item in his application for a search warrant — for whatever reason — and then seizes the item anyway, his conduct is per se unreasonable. Suppression of the evidence so seized will encourage officers to be more precise and complete in future warrant applications. Furthermore, there are a number of instances in which a law enforcement officer might deliberately choose to omit certain items from a warrant application even though he has probable cause to seize them, knows they are on the premises, and intends to seize them when they are discovered in plain view. For example, the warrant application process can often be time consuming, especially when the police attempt to seize a large number of items. An officer interested in conducting a search as soon as possible might decide to save time by listing only one or two hard-to-find items, such as the stolen rings in this case, confident that he will find in plain view all of the other evidence he is looking for before he discovers the listed items. Because rings could be located almost anywhere inside or outside a house, it is unlikely that a warrant to search for and seize the rings would restrict the scope of the search. An officer might rationally find the risk of immediately discovering the items listed in the warrant — thereby forcing him to conclude the search immediately — outweighed by the time saved in the application process. The majority also contends that, once an officer is lawfully in a house and the scope of his search is adequately circumscribed by a warrant, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent. Ante, at 140. Put another way,  `the inadvertence rule will in no way reduce the number of places into which [law enforcement officers] may lawfully look.'  Ante, at 141 (quoting Coolidge, 403 U. S., at 517 (WHITE, J., concurring and dissenting)). The majority is correct, but it has asked the wrong question. It is true that the inadvertent discovery requirement furthers no privacy interests. The requirement in no way reduces the scope of a search or the number of places into which officers may look. But it does protect possessory interests. Cf. Illinois v. Andreas, 463 U. S. 765, 771 (1983) (The plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy) (emphasis added). The inadvertent discovery requirement is essential if we are to take seriously the Fourth Amendment's protection of possessory interests as well as privacy interests. See supra, at 143. The Court today eliminates a rule designed to further possessory interests on the ground that it fails to further privacy interests. I cannot countenance such constitutional legerdemain.",The Fourth Amendment states:
+238,2620886,1,3,"[A]ny person may commence a civil action on his own behalf against . . . [a]n owner or operator of a facility for failure to do any of the following: . . . Complete and submit an inventory form under section 11022(a) of this title . . . [or] [c]omplete and submit a toxic chemical release form under section 11023(a) of this title. 42 U. S. C. §§ 11046(a)(1)(A)(iii)—(iv). Unfortunately, this language is ambiguous. It could mean, as the Sixth Circuit has held, that a citizen only has the right to sue for a failure . . . to complete and submit the required forms. Under this reading, once the owner or operator has filed the forms, the district court no longer has jurisdiction. Atlantic States Legal Foundation v. United Musical, 61 F. 3d 473, 475 (1995). Alternatively, it could be, as the Seventh Circuit held, that the phrases under section 11022(a) and under section 11023(a) incorporate the requirements of those sections, including the requirement that the reports be filed by particular dates. 90 F. 3d 1237, 1243 (1996). Although the language of the citizen-suit provision is ambiguous, other sections of EPCRA indicate that Congress did not intend to confer jurisdiction over citizen suits for wholly past violations. First, EPCRA requires the private litigant to give the alleged violator notice at least 60 days before bringing suit. 42 U. S. C. § 11046(d)(1). [28] In Gwaltney, we considered the import of a substantially identical notice requirement, and concluded that it indicated a congressional intent to allow suit only for ongoing and future violations: [T]he purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit. If we assume, as respondents urge, that citizen suits may target wholly past violations, the requirement of notice to the alleged violator becomes gratuitous. Indeed, respondents, in propounding their interpretation of the Act, can think of no reason for Congress to require such notice other than that `it seemed right' to inform an alleged violator that it was about to be sued. Brief for Respondents 14. 484 U. S., at 60. Second, EPCRA places a ban on citizen suits once EPA has commenced an enforcement action. 42 U. S C. § 11046(e). [29] In Gwaltney, we considered a similar provision and concluded that it indicated a congressional intent to prohibit citizen suits for wholly past violations: The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than supplant governmental action. . .. Permitting citizen suits for wholly past violations of the Act could undermine the supplementary role envisioned for the citizen suit. This danger is best illustrated by an example. Suppose that the Administrator identified a violator of the Act and issued a compliance order . . . . Suppose further that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrective action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator's discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities. Respondents' interpretation of the scope of the citizen suit would change the nature of the citizens' role from interstitial to potentially intrusive. 484 U. S., at 60-61. Finally, even if these two provisions did not resolve the issue, our settled policy of adopting acceptable constructions of statutory provisions in order to avoid the unnecessary adjudication of constitutional questions—here, the unresolved standing question—strongly supports a construction of the statute that does not authorize suits for wholly past violations. As we stated in Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988): This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804), and has for so long been applied by this Court that it is beyond debate. See also NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 500-501 (1979); Machinists v. Street, 367 U. S. 740, 749-750 (1961); Crowell v. Benson, 285 U. S. 22,62 (1932); Lucas v. Alexander, 279 U. S. 573, 577 (1929); Panama R. Co. v. Johnson, 264 U. S. 375, 390 (1924); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 407-408 (1909); Parsons v. Bedford, 3 Pet. 433, 448-449 (1830) (opinion of Story, J.).","EPCRA's citizen-suit provision states, in relevant part:"
+239,109835,1,3,"Having decided that the Commerce Clause does not per se invalidate the application of the Washington tax to stevedoring, we must face the question whether the tax contravenes the Import-Export Clause. Although the parties dispute the meaning of the prohibition of Imposts or Duties on Imports or Exports, they agree that it differs from the ban the Commerce Clause erects against burdens and taxation on interstate commerce. Brief for Petitioner 32-33; Brief for Respondents 9-10; Tr. of Oral Arg. 13, 22. The Court has noted before that the Import-Export Clause states an absolute ban, whereas the Commerce Clause merely grants power to Congress. Richfield Oil Corp. v. State Board, 329 U. S. 69, 75 (1946). On the other hand, the Commerce Clause touches all state taxation and regulation of interstate and foreign commerce, whereas the Import-Export Clause bans only Imposts or Duties on Imports or Exports. Michelin Tire Corp. v. Wages, 423 U. S. 276, 279, 290-294 (1976). The resolution of the Commerce Clause issue, therefore, does not dispose of the Import-Export Clause question.
+In Michelin the Court upheld the application of a general ad valorem property tax to imported tires and tubes. The Court surveyed the history and purposes of the Import-Export Clause to determine, for the first time, which taxes fell within the absolute ban on Imposts or Duties. Id., at 283-286. Previous cases had assumed that all taxes on imports and exports and on the importing and exporting processes were banned by the Clause. See, e. g., Department of Revenue v. James B. Beam Distilling Co., 377 U. S. 341, 343 (1964); Richfield Oil Corp. v. State Board, 329 U. S., at 76; Joseph v. Carter & Weekes Stevedoring Co., 330 U. S., at 445 (Douglas, J., dissenting in part); Anglo-Chilean Corp. v. Alabama, 288 U. S. 218, 226-227 (1933); License Cases, 5 How. 504, 575-576 (1847) (opinion of Taney, C. J.). Before Michelin, the primary consideration was whether the tax under review reached imports or exports. With respect to imports, the analysis applied the original-package doctrine of Brown v. Maryland, 12 Wheat. 419 (1827); see, e. g., Department of Revenue v. James B. Beam Distilling Co .; Anglo-Chilean Corp. v. Alabama ; Low v. Austin, 13 Wall. 29 (1872), overruled in Michelin Tire Corp. v. Wages . So long as the goods retained their status as imports by remaining in their import packages, they enjoyed immunity from state taxation. With respect to exports, the dispositive question was whether the goods had entered the export stream, the final, continuous journey out of the country. Kosydar v. National Cash Register Co., 417 U. S. 62, 70-71 (1974); Empresa Siderurgica v. County of Merced, 337 U. S. 154, 157 (1949); A. G. Spalding & Bros. v. Edwards, 262 U. S. 66, 69 (1923); Coe v. Errol, 116 U. S. 517, 526, 527 (1886). As soon as the journey began, tax immunity attached. Michelin initiated a different approach to Import-Export Clause cases. It ignored the simple question whether the tires and tubes were imports. Instead, it analyzed the nature of the tax to determine whether it was an Impost or Duty. 423 U. S., at 279, 290-294. Specifically, the analysis examined whether the exaction offended any of the three policy considerations leading to the presence of the Clause: The Framers of the Constitution thus sought to alleviate three main concerns . . . : the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically. Id., at 285-286 (footnotes omitted). The ad valorem property tax there at issue offended none of these policies. It did not usurp the Federal Government's authority to regulate foreign relations since it did not fall on imports as such because of their place of origin. Id., at 286. As a general tax applicable to all property in the State, it could not have been used to create special protective tariffs and could not have been applied selectively to encourage or discourage importation in a manner inconsistent with federal policy. Further, the tax deprived the Federal Government of no revenues to which it was entitled. The exaction merely paid for services, such as fire and police protection, supplied by the local government. Although the tax would increase the cost of the imports to consumers, its effect on the demand for Michelin tubes and tires was insubstantial. The tax, therefore, would not significantly diminish the number of imports on which the Federal Government could levy import duties and would not deprive it of income indirectly. Finally, the tax would not disturb harmony among the States because the coastal jurisdictions would receive compensation only for services and protection extended to the imports. Although intending to prevent coastal States from abusing their geographical positions, the Framers also did not expect residents of the ports to subsidize commerce headed inland. The Court therefore concluded that the Georgia ad valorem property tax was not an Impost or Duty, within the meaning of the Import-Export Clause, because it offended none of the policies behind that Clause. A similar approach demonstrates that the application of the Washington business and occupation tax to stevedoring threatens no Import-Export Clause policy. First, the tax does not restrain the ability of the Federal Government to conduct foreign policy. As a general business tax that applies to virtually all businesses in the State, it has not created any special protective tariff. The assessments in this case are only upon business conducted entirely within Washington. No foreign business or vessel is taxed. Respondents, therefore, have demonstrated no impediment posed by the tax upon the regulation of foreign trade by the United States. Second, the effect of the Washington tax on federal import revenues is identical to the effect in Michelin. The tax merely compensates the State for services and protection extended by Washington to the stevedoring business. Any indirect effect on the demand for imported goods because of the tax on the value of loading and unloading them from their ships is even less substantial than the effect of the direct ad valorem property tax on the imported goods themselves. Third, the desire to prevent interstate rivalry and friction does not vary significantly from the primary purpose of the Commerce Clause. See P. Hartman, State Taxation of Interstate Commerce 2-3 (1953). [19] The third Import-Export Clause policy, therefore, is vindicated if the tax falls upon a taxpayer with reasonable nexus to the State, is properly apportioned, does not discriminate, and relates reasonably to services provided by the State. As has been explained in Part II-C, supra, the record in this case, as presently developed, reveals the presence of all these factors. Under the analysis of Michelin, then, the application of the Washington business and occupation tax to stevedoring violates no Import-Export Clause policy and therefore should not qualify as an Impost or Duty subject to the absolute ban of the Clause.
+The Court in Michelin qualified its holding with the observation that Georgia had applied the property tax to goods no longer in transit. 423 U. S., at 302. [20] Because the goods were no longer in transit, however, the Court did not have to face the question whether a tax relating to goods in transit would be an Impost or Duty even if it offended none of the policies behind the Clause. Inasmuch as we now face this inquiry, we note two distinctions between this case and Michelin. First, the activity taxed here occurs while imports and exports are in transit. Second, however, the tax does not fall on the goods themselves. The levy reaches only the business of loading and unloading ships or, in other words, the business of transporting cargo within the State of Washington. Despite the existence of the first distinction, the presence of the second leads to the conclusion that the Washington tax is not a prohibited Impost or Duty when it violates none of the policies. In Canton R. Co. v. Rogan, 340 U. S. 511 (1951), the Court upheld a gross-receipts tax on a steam railroad operating exclusively within the Port of Baltimore. The railroad operated a marine terminal and owned rail lines connecting the docks to the trunk lines of major railroads. It switched and pulled cars, stored imports and exports pending transport, supplied wharfage, weighed imports and exports, and rented a stevedoring crane. Somewhat less than half of the company's 1946 gross receipts were derived from the transport of imports or exports. The company contended that this income was immune, under the Import-Export Clause, from the state tax. The Court rejected that argument primarily on the ground that immunity of services incidental to importing and exporting was not so broad as the immunity of the goods themselves: [21] The difference is that in the present case the tax is not on the goods but on the handling of them at the port. An article may be an export and immune from a tax long before or long after it reaches the port. But when the tax is on activities connected with the export or import the range of immunity cannot be so wide. . . . The broader definition which appellant tenders distorts the ordinary meaning of the terms. It would lead back to every forest, mine, and factory in the land and create a zone of tax immunity never before imagined. Id., at 514-515 (emphasis in original). In Canton R. Co. the Court did not have to reach the question about taxation of stevedoring because the company did not load or unload ships. [22] As implied in the opinion, however, id., at 515, the only distinction between stevedoring and the railroad services was that the loading and unloading of ships crossed the waterline. This is a distinction without economic significance in the present context. The transportation services in both settings are necessary to the import-export process. Taxation in neither setting relates to the value of the goods, and therefore in neither can it be considered taxation upon the goods themselves. The force of Canton R. Co. therefore prompts the conclusion that the Michelin policy analysis should not be discarded merely because the goods are in transit, at least where the taxation falls upon a service distinct from the goods and their value. [23]
+Another factual distinction between this case and Michelin is that here the stevedores load and unload imports and exports whereas in Michelin the Georgia tax touched only imports. As noted in Part III-A, supra, the analysis in the export cases has differed from that in the import cases. In the former, the question was when did the export enter the export stream; in the latter, the question was when did the goods escape their original package. The questions differed, for example, because an export could enter its export package and not secure tax immunity until later when it began its journey out of the country. Until Michelin, an import retained its immunity so long as it remained in its original package. Despite these formal differences, the Michelin approach should apply to taxation involving exports as well as imports. The prohibition on the taxation of exports is contained in the same Clause as that regarding imports. The export-tax ban vindicates two of the three policies identified in Michelin. It precludes state disruption of the United States foreign policy. [24] It does not serve to protect federal revenues, however, because the Constitution forbids federal taxation of exports. U. S. Const., Art. I, § 9, cl. 5; [25] see United States v. Hvoslef, 237 U. S. 1 (1915). But it does avoid friction and trade barriers among the States. As a result, any tax relating to exports can be tested for its conformance with the first and third policies. If the constitutional interests are not disturbed, the tax should not be considered an Impost or Duty any more than should a tax related to imports. This approach is consistent with Canton R. Co., which permitted taxation of income from services connected to both imports and exports. The respondents' gross receipts from loading exports, therefore, are as subject to the Washington business and occupation tax as are the receipts from unloading imports.
+None of respondents' additional arguments convinces us that the Michelin approach should not be applied in this case to sustain the tax. First, respondents contend that the Import-Export Clause effects an absolute prohibition on all taxation of imports and exports. The ban must be absolute, they argue, in order to give the Clause meaning apart from the Commerce Clause. They support this contention primarily with dicta from Richfield Oil, 329 U. S., at 75-78, and with the partial dissent in Carter & Weekes, 330 U. S., at 444-445. Neither, however, provides persuasive support because neither recognized that the term Impost or Duty is not self-defining and does not necessarily encompass all taxes. The partial dissent in Carter & Weekes did not address the term at all. Richfield Oil's discussion was limited to the question whether the tax fell upon the sale or upon the right to retail. 329 U. S., at 83-84. The State apparently conceded that the Clause precluded all taxes on exports and the process of exporting. Id., at 84. The use of these two cases, therefore, ignores the central holding of Michelin that the absolute ban is only of Imposts or Duties and not of all taxes. Further, an absolute ban of all taxes is not necessary to distinguish the Import-Export Clause from the Commerce Clause. Under the Michelin approach, any tax offending either of the first two Import-Export policies becomes suspect regardless of whether it creates interstate friction. Commerce Clause analysis, on the other hand, responds to neither of the first two policies. Finally, to conclude that Imposts or Duties encompasses all taxes makes superfluous several of the terms of Art. I, § 8, cl. 1, of the Constitution, which grants Congress the Power To lay and collect Taxes, Duties, Imposts and Excises. In particular, the Framers apparently did not include Excises, such as an exaction on the privilege of doing business, within the scope of Imposts or Duties. See Michelin, 423 U. S., at 291-292, n. 12, citing 2 M. Farrand, The Records of the Federal Convention of 1787, p. 305 (1911), and 3 id., at 203-204. [26] Second, respondents would distinguish Michelin on the ground that Georgia levied a property tax on the mass of goods in the State, whereas Washington would tax the imports themselves while they remain a part of commerce. This distinction is supported only by citation to the License Cases, 5 How., at 576 (opinion of Taney, C. J.). The argument must be rejected, however, because it resurrects the original-package analysis. See id., at 574-575. Rather than examining whether the taxes are Imposts or Duties that offend constitutional policies, the contention would have the Court explore when goods lose their status as imports and exports. This is precisely the inquiry the Court abandoned in Michelin, 423 U. S., at 279. Nothing in the License Cases, in which a fractioned Court produced nine opinions, prompts a return to the exclusive consideration of what constitutes an import or export. Third, respondents submit that the Washington tax imposes a transit fee upon inland consumers. Regardless of the validity of such a toll under the Commerce Clause, respondents conclude that it violates the Import-Export Clause. The problem with that analysis is that it does not explain how the policy of preserving harmonious commerce among the States and of preventing interstate tariffs, rivalries, and friction, differs as between the two Clauses. After years of development of Commerce Clause jurisprudence, the Court has concluded that interstate friction will not chafe when commerce pays for the governmental services it enjoys. See Part II, supra. Requiring coastal States to subsidize the commerce of inland consumers may well exacerbate, rather than diminish, rivalries and hostility. Fair taxation will be assured by the prohibition on discrimination and the requirements of apportionment, nexus, and reasonable relationship between tax and benefits. To the extent that the Import-Export Clause was intended to preserve interstate harmony, the four safeguards will vindicate the policy. To the extent that other policies are protected by the Import-Export Clause, the analysis of an Art. I, § 10, challenge must extend beyond that required by a Commerce Clause dispute. But distinctions not based on differences in constitutional policy are not required. Because respondents identify no such variation in policy, their transit-fee argument must be rejected.
+The Washington business and occupation tax, as applied to stevedoring, reaches services provided wholly within the State of Washington to imports, exports, and other goods. The application violates none of the constitutional policies identified in Michelin. It is, therefore, not among the Imposts or Duties within the prohibition of the Import-Export Clause.",The Import-Export Clause
+240,109815,2,3,"[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . . This Clause raises no impenetrable barrier to the taking of a person's possessions, or liberty, or life. Fuentes v. Shevin, 407 U. S. 67, 81 (1972). Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that procedural due process rules are shaped by the risk of error inherent in the truth-finding process . . . . Mathews v. Eldridge, 424 U. S. 319, 344 (1976). [14] Such rules minimize substantively unfair or mistaken deprivations of life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, at 81. In this case, the Court of Appeals held that if petitioners can prove on remand that [respondents] would have been suspended even if a proper hearing had been held, 545 F. 2d, at 32, then respondents will not be entitled to recover damages to compensate them for injuries caused by the suspensions. The court thought that in such a case, the failure to accord procedural due process could not properly be viewed as the cause of the suspensions. Ibid.; cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 285-287 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 270-271, n. 21 (1977). The court suggested that in such circumstances, an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation, to respondents. 545 F. 2d, at 32, citing Hostrop v. Board of Junior College Dist. No. 515, 523 F. 2d, at 579; cf. Mt. Healthy City Board of Ed. v. Doyle, supra, at 285-286. We do not understand the parties to disagree with this conclusion. Nor do we. [15] The parties do disagree as to the further holding of the Court of Appeals that respondents are entitled to recover substantial—although unspecified—damages to compensate them for the injury which is `inherent in the nature of the wrong,' 545 F. 2d, at 31, even if their suspensions were justified and even if they fail to prove that the denial of procedural due process actually caused them some real, if intangible, injury. Respondents, elaborating on this theme, submit that the holding is correct because injury fairly may be presumed to flow from every denial of procedural due process. Their argument is that in addition to protecting against unjustified deprivations, the Due Process Clause also guarantees the feeling of just treatment by the government. Anti-Fascist Committee v. McGrath, 341 U. S. 123, 162 (1951) (Frankfurter, J., concurring). They contend that the deprivation of protected interests without procedural due process, even where the premise for the deprivation is not erroneous, inevitably arouses strong feelings of mental and emotional distress in the individual who is denied this feeling of just treatment. They analogize their case to that of defamation per se, in which the plaintiff is relieved from the necessity of producing any proof whatsoever that he has been injured in order to recover substantial compensatory damages. C. McCormick, Law of Damages § 116, p. 423 (1935). [16] Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests. They go so far as to concede that, in a proper case, persons in respondents' position might well recover damages for mental and emotional distress caused by the denial of procedural due process. Petitioners' argument is the more limited one that such injury cannot be presumed to occur, and that plaintiffs at least should be put to their proof on the issue, as plaintiffs are in most tort actions. We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376 (WHITE, J., dissenting). [17] Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either. [18] But these considerations do not support respondents' contention that damages should be presumed to flow from every deprivation of procedural due process. First, it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress. Where the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress over the procedural irregularities. Indeed, in contrast to the immediately distressing effect of defamation per se, a person may not even know that procedures were deficient until he enlists the aid of counsel to challenge a perceived substantive deprivation. Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983. [19] This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself. Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff. [20] In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.",The Due Process Clause of the Fourteenth Amendment provides:
+241,105321,1,1,"On its face, the Federal Power Act applies to this license as specifically as it did to the license in the First Iowa case. There the jurisdiction of the Commission turned almost entirely upon the navigability of the waters of the United States to which the license applied. Here the jurisdiction turns upon the ownership or control by the United States of the reserved lands on which the licensed project is to be located. [8] The authority to issue licenses in relation to navigable waters of the United States springs from the Commerce Clause of the Constitution. The authority to do so in relation to public lands and reservations of the United States springs from the Property Clause—The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . . Art. IV, § 3. [9] In the instant case the project is to occupy lands which come within the term reservations, as distinguished from public lands. In the Federal Power Act, each has its established meaning. Public lands are lands subject to private appropriation and disposal under public land laws. Reservations are not so subject. [10] The title to the lands upon which the eastern terminus of the dam is to rest has been in the United States since the cession by Great Britain of the area now comprising the State of Oregon. Even if formerly they may have been open to private appropriation as public lands, they were withdrawn from such availability before any vested interests conflicting with the Pelton Project were acquired. [11] Title to the bed of the Deschutes River is also in the United States. [12] Since the Indian Treaty of 1855, the lands within the Indian reservation, upon which the western end of the dam will rest, have been reserved for the use of the Indians. More recently they were reserved for power purposes [13] and the Indians have given their consent to the project before us. Accordingly, there is no issue here as to whether or not the title to the tribal lands is in the United States. [14] There thus remains no question as to the constitutional and statutory authority of the Federal Power Commission to grant a valid license for a power project on reserved lands of the United States, provided that, as required by the Act, the use of the water does not conflict with vested rights of others. [15] To allow Oregon to veto such use, by requiring the State's additional permission, would result in the very duplication of regulatory control precluded by the First Iowa decision. 328 U. S. 152, 177-179. No such duplication of authority is called for by the Act. [16] The Court of Appeals in the instant case agrees. 211 F. 2d, at 351. And see Washington Department of Game v. Federal Power Commission, 207 F. 2d 391, 395-396. Authorization of this project, therefore, is within the exclusive jurisdiction of the Federal Power Commission, unless that jurisdiction is modified by other federal legislation. See United States v. Rio Grande Irrigation Co., 174 U. S. 690, 703; Gutierres v. Albuquerque Land Co., 188 U. S. 545, 554.",applicability of the federal power act.
+242,105321,1,2,"The State of Oregon argues that the Acts of July 26, 1866, [17] July 9, 1870, [18] and the Desert Land Act of 1877 [19] constitute an express congressional delegation or conveyance to the State of the power to regulate the use of these waters. The argument is that these Acts preclude or restrict the scope of the jurisdiction, otherwise apparent on the face of the Federal Power Act, and require the consent of the State to a project such as the one before us. The nature and effect of these Acts have been discussed previously by this Court. The purpose of the Acts of 1866 and 1870 was governmental recognition and sanction of possessory rights on public lands asserted under local laws and customs. Jennison v. Kirk, 98 U. S. 453. The Desert Land Act severed, for purposes of private acquisition, soil and water rights on public lands, and provided that such water rights were to be acquired in the manner provided by the law of the State of location. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142. See also, Nebraska v. Wyoming, 325 U. S. 589, 611-616. It is not necessary for us, in the instant case, to pass upon the question whether this legislation constitutes the express delegation or conveyance of power that is claimed by the State, because these Acts are not applicable to the reserved lands and waters here involved. The Desert Land Act covers sources of water supply upon the public lands . . . . The lands before us in this case are not public lands but reservations. Even without that express restriction of the Desert Land Act to sources of water supply on public lands, these Acts would not apply to reserved lands. It is a familiar principle of public land law that statutes providing generally for disposal of the public domain are inapplicable to lands which are not unqualifiedly subject to sale and disposition because they have been appropriated to some other purpose. United States v. O'Donnell, 303 U. S. 501, 510. See also, United States v. Minnesota, 270 U. S. 181, 206. The instant lands certainly are not unqualifiedly subject to sale and disposition . . . . Accordingly, it is enough, for the instant case, to recognize that these Acts do not apply to this license, which relates only to the use of waters on reservations of the United States.",inapplicability of the desert land act of 1877 and related acts.
+243,105321,1,3,"Finally, respondents question the discretion used by the Commission in granting the license. They point to the consequences which the project will have beyond the limits of the reserved lands on which it will be located. The first consequence is the inevitable variation in, or the temporary interruption of, the flow of the stream. The Commission is satisfied that it has overcome this objection by its provision for a reregulating dam. It has approved the technical features involved and the site for that dam will be acquired in accordance with the property laws of Oregon. [20] In this reregulation of the flow of the stream, the Commission acts on behalf of the people of Oregon, as well as all others, in seeing to it that the interests of all concerned are adequately protected. There remains the effect of the project upon anadromous fish which use these waters as spawning grounds. All agree that the 205-foot dam will cut off access of some fish to their natural spawning grounds above the dam and that such interruption cannot be overcome by fish ladders. [21] However, the State does not flatly prohibit the construction of dams that cut off anadromous fish from their spawning or breeding grounds. [22] One alternative, thus recognized, is the supplying of new breeding pools to which the fish can be removed at appropriate times. [23] The Fish Commission of Oregon has denied a permit to the Portland General Electric Company to carry out its present proposal but there appears to be no disagreement as to the underlying principle involved. [24] The applicant has agreed to provide facilities for conserving the runs of anadromous fish in accordance with plans approved by the Federal Power Commission. The capital cost of these facilities and of the reregulating dam, to be borne by the applicant, is estimated at $4,430,000. The total annual cost due to these facilities is estimated at $795,000. The Commission has found each of these estimates to be reasonable. Of the $795,000 annual cost, the applicant will bear $410,000 (cost of borrowed money, depreciation and taxes on the capital investment), and the $10,000 maintenance cost of the reregulating dam. In addition, it has offered to contribute $100,000 annually toward the estimated $375,000 cost of operation and maintenance of the fish conservation facilities, and the Commission has retained the power to fix the amount of the applicant's contribution if a sum is not agreed upon. The care given to the preparation of this conservation program and the large investment to be made in it are impressive. It also is of interest that the Fish Commission of Oregon already is operating somewhat comparable but smaller facilities of this kind on the Metolius River. One argument against the project goes beyond the need to conserve the existing fish population. It is argued that the project will preclude the carrying out of certain plans for the Columbia River Basin which contemplate greatly enlarging the fish population in the Deschutes River area, by concentrating there other runs of fish not now using that river. While such an argument may properly be directed to the Federal Power Commission or to Congress, it is not one for us to answer upon the basis of existing legal rights. We conclude, therefore, that, on the facts here presented, the Federal Power Act is applicable in accordance with its terms, and that the Federal Power Commission has acted within its powers and its discretion in granting the license now before us. The judgment of the Court of Appeals, accordingly, is Reversed. MR. JUSTICE HARLAN took no part in the consideration or decision of this case.",application of the federal power act to this project.
+244,96129,2,2,"SEC. 56. Courts of first instance shall have original jurisdiction. . . . 6. In all criminal cases in which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars may be imposed.         SEC. 65. The existing courts of first instance are hereby abolished, and the courts of first instance provided by this act are substituted in place thereof. SEC. 66. There shall be courts of justice of the peace as in this section provided: 1. The existing courts of justices of the peace, established by military orders since the thirteenth day of August, eighteen hundred and ninety-eight, are hereby recognized and continued, and the justices of such courts shall continue to hold office during the pleasure of the commission. 2. In every province in which there now is, or shall hereafter be established, a court of first instance, courts of justice of the peace shall be established in every municipality thereof which shall be organized under the municipal code, or which has been organized and is being conducted as a municipality when this act shall take effect, under and by virtue of the municipal code.         SEC. 68. A justice of the peace shall have original jurisdiction for the trial of all misdemeanors and offences arising within the municipality of which he is a justice, in all cases where the sentence might not by law exceed six months' imprisonment or a fine of one hundred dollars; . . . On July 1, 1902, Congress passed an act, 32 Stat. 691: An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes.  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the action of the President of the United States in creating the Philippine Commission and authorizing said commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of civil governor and vice-governor of the Philippine Islands, and authorizing said civil governor and vice-governor to exercise the powers of government to the extent and in the manner and form set forth in the executive order dated June twenty-first, nineteen hundred and one, and in establishing four executive departments of government in said islands as set forth in the act of the Philippine Commission, entitled `An act providing an organization for the departments of the interior, of commerce and police, of finance and justice, and of public instruction,' enacted September sixth, nineteen hundred and one, is hereby approved, ratified, and confirmed, and until otherwise provided by law the said islands shall continue to be governed as thereby and herein provided, and all laws passed hereafter by the Philippine Commission shall have an enacting clause as follows: `By authority of the United States be it enacted by the Philippine Commission.' The provisions of section eighteen hundred and ninety-one of the Revised Statutes of eighteen hundred and seventy-eight shall not apply to the Philippine Islands. Future appointments of civil governor, vice-governor, members of said commission, and heads of executive departments shall be made by the President, by and with the advice and consent of the Senate.         SEC. 5. That no law shall be enacted in said islands which shall deprive any person of life, liberty or property without due process of law, or deny to any person therein the equal protection of the laws. That in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to compel the attendance of witnesses in his behalf. That no person shall be held to answer for a criminal offence without due process of law; and no person for the same offence shall be twice put in jeopardy of punishment, nor shall be compelled in any criminal case to be a witness against himself. That all persons shall before conviction be bailable by sufficient sureties, except for capital offences. That no law impairing the obligation of contracts shall be enacted. That no person shall be imprisoned for debt. That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the governor, with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist. That no ex post facto law or bill of attainder shall be enacted. That no law granting a title of nobility shall be enacted, and no person holding any office of profit or trust in said islands shall, without the consent of the Congress of the United States, accept any present, emolument, office or title of any kind whatever from any king, queen, prince or foreign State. That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. That the right to be secure against unreasonable searches and seizures shall not be violated. That neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in said islands. That no law shall be passed abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances. That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. That no money shall be paid out of the treasury except in pursuance of an appropriation by law. That the rule of taxation in said islands shall be uniform. That no private or local bill which may be enacted into law shall embrace more than one subject, and that subject shall be expressed in the title of the bill. That no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. That all money collected on any tax levied or assessed for a special purpose shall be treated as a special fund in the treasury and paid out for such purpose only.         SEC. 9. That the Supreme Court and the courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided, and such additional jurisdiction as shall hereafter be prescribed by the government of said islands, subject to the power of said Government to change the practice and method of procedure. The municipal courts of said islands shall possess and exercise jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration and amendment as may be hereafter enacted by law; and the chief justice and associate justices of the Supreme Court shall hereafter be appointed by the President, by and with the advice and consent of the Senate, and shall receive the compensation heretofore prescribed by the commission until otherwise provided by Congress. The judges of the court of first instance shall be appointed by the civil governor, by and with the advice and consent of the Philippine Commission: Provided, That the admiralty jurisdiction of the Supreme Court and courts of first instance shall not be changed except by act of Congress. SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right or privilege of the United States is involved, or in causes in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified or affirmed by said Supreme Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the Circuit Courts of the United States. The act just quoted became a law before the final conviction of the accused in the Supreme Court of the islands. It is contended by the Government that that part of the law under immediate consideration, which provides that no person, for the same offense, shall be twice put in jeopardy, must be construed in view of the system of laws prevailing in the islands before the same were ceded to the United States, and that the purpose of Congress was to make effectual the jurisprudence of the islands as known and established before American occupation, and that the provision against double jeopardy must be read in the light of the understanding of that expression in the civil law, or rather the Spanish law as it was then in force. The citations in the brief of the learned counsel for the Government seem to establish that under the Spanish law, as theretofore administered, one who had been convicted by a judgment of the court of last resort could not again be prosecuted for the same offense. We notice some of these provisions: In Spanish law the doctrine found expression in the Fuero Real (A.D. 1255) and the Siete Partidas (A.D. 1263). After a man, accused of any crime, has been acquitted by the court, no one can afterwards accuse him of the same offence (except in certain specified cases). Fuero Real, lib. iv, tit. xxi, 1, 13. If a man is acquitted by a valid judgment of any offence of which he has been accused, no other person can afterwards accuse him of the offence (except in certain cases). Siete Partidas, Part VII, tit. i, l. xii. In the encyclopedia of Spanish law, published by Don Lorenzo Arrazola in 1848, it is said, in considering the persons who may be accused of crime: It is another of the general exceptions that a person cannot be accused who has formerly been accused and adjudged of the same crime, since the most essential effect of all judicial decisions upon which execution can issue is to constitute unalterable law. Tomo I, pag. 511. Under that system of law it seems that a person was not regarded as being in jeopardy in the legal sense until there had been a final judgment in the court of last resort. The lower courts were deemed examining courts, having preliminary jurisdiction, and the accused was not finally convicted or acquitted until the case had been passed upon in the audiencia, or Supreme Court, whose judgment was subject to review in the Supreme Court at Madrid for errors of law, with power to grant a new trial. The trial was regarded as one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law. The change introduced under military order No. 58, as amended by act 194 of the commission, made the judgment of the court of first instance final, in cases other than capital, whether the accused be convicted or acquitted, unless an appeal was prosecuted by the Government or the accused in the manner pointed out. In order to determine what Congress meant in the language used in the act under consideration, No person for the same offence shall be twice put in jeopardy of punishment, we must look to the origin and source of the expression and the judicial construction put upon it before the enactment in question was passed. A consideration of the events preceding this regulation makes evident the intention of Congress to carry some at least of the essential principles of American constitutional jurisprudence to these islands and to engraft them upon the law of this people, newly subject to our jurisdiction. That it was the intention of the President in the instructions to the Philippine Commission to adopt a well-known part of the fundamental law of the United States, and to give much of the beneficent protection of the bill of rights to the people of the Philippine Islands, is not left to inference, for in his instructions, dated April 7, 1900, (see Public Laws and Resolutions of Philippine Com. 6-9,) he says: In all the forms of government and administrative provisions which they are authorized to prescribe, the commission should bear in mind that the government which they are establishing is designed not for our satisfaction or for the expression of our theoretical views, but for the happiness, peace and prosperity of the people of the Philippine Islands, and the measures adopted should be made to conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government; But he was careful to add: At the same time the commission should bear in mind, and the people of the islands should be made plainly to understand, that there are certain great principles of government which have been made the basis of our governmental system, which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we have found to be essential to the preservation of these great principles of liberty and law, and that these principles and these rules of government must be established and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enlightened thought of the Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command universal assent. Upon every division and branch of the government of the Philippines, therefore, must be imposed these inviolable rules: That no person shall be deprived of life, liberty or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence; that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offence or be compelled in any criminal case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that no bill of attainer or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the government for a redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed. These words are not strange to the American lawyer or student of constitutional history. They are the familiar language of the Bill of Rights, slightly changed in form, but not in substance, as found in the first nine amendments to the Constitution of the United States, with the omission of the provision preserving the right to trial by jury and the right of the people to bear arms, and adding the prohibition of the Thirteenth Amendment against slavery or involuntary servitude except as a punishment for crime, and that of Art. 1, § 9, to the passage of bills of attainder and ex post facto laws. These principles were not taken from the Spanish law; they were carefully collated from our own Constitution, and embody almost verbatim the safeguards of that instrument for the protection of life and liberty. When Congress came to pass the act of July 1, 1902, it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In view of the expressed declaration of the President, followed by the action of Congress, both adopting, with little alteration, the provisions of the Bill of Rights, there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our Government which the President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the islands had not theretofore enjoyed their benefit. How can it be successfully maintained that these expressions of fundamental rights, which have been the subject of frequent adjudication in the courts of this country, and the maintenance of which has been ever deemed essential to our Government, could be used by Congress in any other sense than that which has been placed upon them in construing the instrument from which they were taken? It is a well-settled rule of construction that language used in a statute which has a settled and well-known meaning, sanctioned by judicial decision, is presumed to be used in that sense by the legislative body. The Abbotsford, 98 U.S. 440. It is not necessary to determine in this case whether the jeopardy provision in the Bill of Rights would have become part of the law of the islands without Congressional legislation. The power of Congress to make rules and regulations for territory incorporated in or owned by the United States is settled by an unbroken line of decisions of this court and is no longer open to question. American Ins. Co. v. Canter, 1 Pet. 511; Murphy v. Ramsey, 114 U.S. 15; Mormon Church v. United States, 136 U.S. 1, 42, 43; Downes v. Bidwell, 182 U.S. 244; Hawaii v. Mankichi, 190 U.S. 197. This case does not call for a discussion of the limitations of such power, nor require determination of the question whether the jeopardy clause became the law of the islands after the ratification of the treaty without Congressional action, as the act of Congress made it the law of these possessions when the accused was tried and convicted. It is argued that in the act of July 1, 1902, Congress recognized the jurisdiction of the Philippine courts in section 9 as follows: SEC. 9. That the Supreme Court and the courts of first instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided, and such additional jurisdiction as shall hereafter be prescribed by the government of said islands, subject to the power of said government to change the practice and method of procedure. The argument is, that Congress intended to leave the right of appeal as provided by military order, No. 58, as amended by the commission, in full force. But Congress, in section 5, had already specifically provided that no person should be put twice in jeopardy of punishment for the same offense. While section 9 recognizes the established jurisdiction of the courts of the islands, it was not intended to repeal the specific guaranty of section 5, which is direct legislation pertaining to the particular subject. It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. In re Rouse, Hazard & Co., 91 Fed. Rep. 96, 100, and cases therein cited; Townsend v. Little, 109 U.S. 504, 512. In ascertaining the meaning of the phrase taken from the Bill of Rights it must be construed with reference to the common law from which it was taken. 1 Kent, Com. 336. United States v. Wong Kim Ark, 169 U.S. 649, in which this court said: In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 144 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 624 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent's Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. At the common law, protection from second jeopardy for the same offense clearly included immunity from second prosecution where the court having jurisdiction had acquitted the accused of the offense. The rule is thus stated by Hawkins in his Pleas of the Crown, quoted by Mr. Justice Story in United States v. Gibert et al., 2 Sumner, 19, 39: The plea (says he) of autre fois acquit is grounded on this maxim, that a man shall not be brought into danger of his life for one and the same offence more than once. From whence it is generally taken by all our books, as an undoubted consequence, that where a man is once found not guilty, on an indictment or appeal, free from error, and well commenced before any court, which hath jurisdiction of the cause, he may by the common law, in all cases, plead such acquittal in bar of any subsequent indictment or appeal for the same crime.",Appellate.
+245,102428,1,1,"Dominion over navigable waters and property in the soil under them are so identified with the sovereign power of government that a presumption against their separation from sovereignty must be indulged, in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself. See Massachusetts v. New York, 271 U.S. 65, 89. For that reason, upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. But if the waters are not navigable in fact, the title of the United States to land underlying them remains unaffected by the creation of the new State. See United States v. Utah, supra, 75; Oklahoma v. Texas, supra, 583, 591. Since the effect upon the title to such lands is the result of federal action in admitting a state to the Union, the question, whether the waters within the State under which the lands lie are navigable or non-navigable, is a federal, not a local one. It is, therefore, to be determined according to the law and usages recognized and applied in the federal courts, even though, as in the present case, the waters are not capable of use for navigation in interstate or foreign commerce. United States v. Holt State Bank, 270 U.S. 49, 55, 56; United States v. Utah, supra, 75; Brewer-Elliott Oil Co. v. United States, 260 U.S. 77, 87. The Special Master based his conclusion that the waters within the meander line boundary were not navigable in fact on the date of the admission of Oregon to the Union, or afterward, on his finding of fact that: neither trade nor travel did then or at any time since has or could or can move over said Divisions, or any of them, in their natural or ordinary conditions according to the customary modes of trade or travel over water; nor was any of them on February 14, 1859, nor has any of them since been used or susceptible of being used in the natural or ordinary condition of any of them as permanent or other highways or channels for useful or other commerce. It is not denied that this finding embodies the appropriate tests of navigability as laid down by the decisions of this Court. See United States v. Holt State Bank, supra, 56; United States v. Utah, supra, 76; Brewer-Elliott Oil Co. v. United States, supra, 86; Oklahoma v. Texas, supra, 586; Economy Light & Power Co. v. United States, 256 U.S. 113, 123; United States v. Rio Grande Irrigation Co., 174 U.S. 690, 698; The Daniel Ball, 10 Wall. 557, 563. The only attack upon it is that it is not adequately supported by the evidence. The finding, as the Master's report shows in detail, is rested upon his observations, made in the course of a personal inspection of the disputed area, and a careful consideration of the voluminous testimony of one hundred and forty-three witnesses. He made subsidiary findings with respect to (1) the physical condition, present and past, of the several bodies of water with respect to their depth, their channels or waterways capable of use in navigation, and the presence within them of vegetation, all of which affect their use and the access to them for purposes of navigation, and (2) their actual use, past and present, with special reference to (a) trapping of fur-bearing animals and (b) boating. Physical Condition: The Special Master inspected Lake Malheur Reservation on or about November 1, 1931, accompanied by counsel and engineers representing the parties. He found that the entire area was then dry, and showed no signs in the soil of ever having been under water, except that water one to two inches in depth was found in Harney Lake, and about 400 acres in Lake Malheur was covered by water of negligible depth, and was surrounded by about 1,000 acres of mud. This 1,400 acre area lay in the more southerly part of the lake. The surface elevation above sea level of the 1,400 acres varied from 4,090 to 4,092 feet, which was below the average elevation of the meander line, fixed in the findings at 4,093 feet. These data as to the condition of the area then, which are not directly challenged and are abundantly supported by the testimony, indicate clearly enough that all five divisions are shallow bodies of water which, with the exception of Lake Malheur, disappear completely or become negligible during a dry season. The five divisions are shown to lie in a flat plateau and their basins or beds to be so shallow and unprotected by banks that variations in the amount of water flowing into them produce large variations in the area covered by water, but relatively slight variations in depth. The entire area is shown to be an evaporation pan for the Harney County water basin, with an average annual evaporation of forty inches. The Master found that, except in years of abundant rainfall and favorable run-off, the water is not available to maintain an average water surface elevation of much above 4,093 feet. Contour maps of Lake Malheur, where conditions admittedly are the most favorable for navigation, show that nearly half its area, with water surface standing at 4,093 feet, would be covered with water two feet or less in depth, and less than one-fourth of its area with water between three and four feet in depth. [2] The areas which would be covered by water of depth sufficient to float boats are shown not to be continuous enough to afford channels or waterways capable of use in navigation. At a surface elevation of 4,093 feet the water is so shallow for long distances from the meander line as to preclude passage over it by boats, and with the water reduced to lower levels by seasonal evaporation the same area becomes mud or dry land. With a reduction of only one foot in water surface elevation, approximately 11,716 acres, otherwise covered by water, becomes mud or dry land, and other marked changes in the distribution of depths are produced. With the reduction in water surface attending the usual dry season of the summer, much of the area is made up of small lakes or ponds, separated by mud or dry land. There has been no survey of Harney Lake, but contour maps of the other divisions show similar conditions, though less favorable to navigability. The evidence establishes that Harney Lake is even more shallow and is without banks on its westerly end. Its waters are alkaline, and almost without vegetation. Its water area at the time of trial was approximately 2,000 acres, having a depth of from one to two inches. The depths have been variable, but the lake has not been shown at any time to have had a depth exceeding three feet. The evidence establishes that it has no stable or constant stand of water, and that large variations in the water area occur with seasonal and climatic changes. All the other divisions are shown to be covered in substantial measure by tules, which ordinarily grow only in depths of five feet or less, and to be filled in the shallower portions with growths of vegetation of a character and extent such as to make navigation difficult, even though there were channels or waterways otherwise capable of use for that purpose. The presence of dead sagebrush and greasewood in all three lakes, in considerable areas generally covered by water, indicates that the land has been dry for substantial periods. Scientific and historical evidence in great volume supports the conclusion that the physical condition of the bodies of water within the area has not varied substantially, so as to affect the possibility of their use in navigation, since the admission of Oregon to the Union. This is established by early maps and reports; a study of tree rings, indicating past climatic conditions, particularly the amount of annual rainfall; and the presence in all divisions, except Harney Lake, of underlying beds of peat varying from twelve to thirty inches in depth and tending to establish shallow water conditions, and the presence of vegetation, over a long period. The conclusion must be that at the time of admission to statehood the bodies of water within the meander line were shallow, with average surface water not much above 4,093 feet, with the water of all except Harney Lake substantially filled with tules and other types of water vegetation, so as to give them largely the character of swamps, with irregularly located but connected areas of shallow open water of variable depths. The conclusion of the Special Master, that only under exceptional conditions does the water surface rise above 4,093 feet, is challenged by the State. The finding is based in part upon an elaborate study and report of water conditions in the Harney County water basin, prepared by Jessup, a Government engineer, showing that in order to maintain a mean average elevation of this lake surface [Lake Malheur] much above 4,093 feet would require more water than has ever been available. In support of Oregon's exception to the Master's finding, it relies upon two independent private surveys, the results of which did not differ materially from those tendered by the Government, and the evidence of numerous witnesses who testified that at one time or another during the past 45 years they had seen the water at points which, if their estimates and recollections are correct, would establish a water surface elevation above 4,093 feet. Their testimony, aside from its often vague and untrustworthy character because based on estimates and unaided recollections over long periods of time, as well as that of the surveys referred to, tended at most to show that in exceptional conditions of flood the water surface rose somewhat above the elevation of the meander line. There is abundant scientific evidence, and the testimony of contemporary observers, that for considerable parts of each year, and except in unusual conditions of flood, the water falls substantially below that elevation. There is no convincing evidence that the Special Master erred in his conclusion that the mean water surface elevation is not much above that point. The Master also found against the contention of Oregon, set up by its amended answer, that the water surface elevation had been materially lessened by diversion of water from the Silvies and Donner und Blitzen rivers, for purposes of irrigation. The record affords no substantial support for this contention. The voluminous scientific evidence must be accepted as establishing that any diversion, which could reasonably be assumed to take place by reason of irrigation, is too small in comparison with the area affected to produce any variation in depth of water sufficient to affect navigability. At a surface elevation of 4,092 feet the three lakes are connected and the flow of water required to raise water surface an additional foot, when allowance is made for increased evaporation, would considerably exceed any estimated amount of water artificially diverted. Nor does the evidence support the contention of Oregon that the navigability of Lake Malheur and Mud Lake is affected by the breaking of a channel through the Sand Reef, and the resulting connection with Harney Lake, which is said materially to have lowered the surface of the waters in the two upper lakes. The Special Master found that the gap, about 45 feet wide, which was broken through the top of Sand Reef by flood water in 1881, has had no such effect. In this he is supported by the scientific evidence based upon the contour maps of the region, and the annual inflow of water into Lake Malheur, and the outflow through the Sand Reef to Harney Lake. There is no outflow in some years. The evidence shows that with the Sand Reef closed the depth of water in Malheur and Mud Lakes would be increased by only a few tenths of a foot. Trapping. The State places much reliance on the large amount of testimony relating to the trapping of furbearing animals, principally muskrats, in the contested area. The evidence shows that, at times subsequent to 1890, a large number of animals were trapped in the tule areas, some in fall and spring, but principally in the winter months. Most of this evidence has no bearing on navigability, for with a few exceptions, the trappers appear to have waded or walked. See Toledo Liberal Shooting Co. v. Erie Shooting Club, 90 Fed. 680, 682 (C.C.A. 6th). Before 1908 only three trappers are shown to have used boats. Later one trapper is shown to have used a rowboat and another to have used both a rowboat and a motor boat. Of the four witnesses who had used boats in connection with trapping, three referred to use of homemade boats of three or four to six inches draft, one in the fall of 1833 and following years, another in 1894-1895, and another subsequent to 1909. All wore gummed boots and found it necessary, in the use of the boats, to get out and pull them over shallow points in the lake where the depths were from one to four inches. Another, who used a boat in which he had installed a small motor, stated that the propeller sometimes struck bottom, when it would be necessary to pole the boat off, and that it was often stalled by the tangling of the weedless propeller in the vegetation of the lake. Boating. The Special Master found that the boating which took place in the area involved had no commercial aspects and was of such a character as to be no indication of navigability; that it was only such as might reasonably be expected to occur in a swampy area of the character and magnitude described. The issue of navigability was chiefly concerned with Lake Malheur, but the findings were made with respect to the entire area. Numerous witnesses who had lived in the vicinity for many years had never used a boat and had never, or rarely, seen one on the lake. Most of the evidence of boating related to the use of boats by trappers, to which reference has already been made, and by duck hunters in the spring and fall of the year. The boats were all of light draft, those most in use being canvas canoes or homemade rowboats, drawing between one and six inches of water. The record is replete with evidence showing that many difficulties were customarily encountered in the use of boats. It was usual to drag them many yards, sometimes several hundred, from the fast land before they would float. Once embarked they encountered tules, often six feet or more in height, and much other water vegetation, impenetrable at many points, but through which there was a labyrinth of channels leading to no definite or certain destination. Hunters, in many instances, found it necessary to flag or otherwise mark the course in order to insure a convenient and safe route for return. The boats were often propelled by poling them through the tules and over the shallow places, or by getting out and pulling them. Only four motor boats appear ever to have been used, and then only to a very limited extent, when conditions were favorable, in the more open water in the southeasterly part of Lake Malheur. This could ordinarily be reached by motor boat only by passing through a considerable distance of relatively shallow water in the region of the Blitzen River. One operator of a motor boat was often marooned by shallow water and took with him a small canoe as a means of proceeding when the motor boat was grounded. He had never found the boat useful because of the weeds and the shallowness of the water. The others had the same difficulties. Two stated that they could only use the boats during high water in spring and early summer. One of them, the Reserve Protector, a resident since 1909, had patrolled Lake Malheur in his boat in high water, but the greater portion of his patrolling was not by boat. The fourth person who had used a motor boat had often found it necessary to get out and pull the boat over shoals in one to four inches of water. The evidence of any use of boats in the other divisions was much more meagre and still less indicative of the possibility of navigation. There is a single instance of bringing a small quantity of hay by rowboat from one of the small islands in Lake Malheur, but there is no other evidence of transportation of any commodity, beyond that already indicated. The evidence, taken as a whole, clearly establishes the flat topography of the disputed area, the shallow water without defined banks, ice-bound from three to four months of the year, the separation of areas covered by water of sufficient depth to float boats, the presence of tules and other forms of water vegetation, a dry season every year, and frequent dry years during which Mud and Harney Lakes are almost entirely without water, and Lake Malheur is reduced to a relatively few acres of disconnected ponds surrounded by mud. These conditions preclude the use for navigation of the area in question, in its natural and ordinary condition, according to the customary modes of trade or travel over water, and establish an absence of that capacity for general and common usefulness for purposes of trade and commerce which is essential to navigability. See United States v. Rio Grande Irrigation Co., supra, 698. At most the evidence shows such an occasional use of boats, sporadic and ineffective, as has been observed on lakes, streams or ponds large enough to float a boat, but which nevertheless were held to lack navigable capacity. See United States v. Rio Grande Irrigation Co., supra, 699; The Montello, 20 Wall. 430, 442; Leovy v. United States, 177 U.S. 621, 627, 633; North American Dredging Co. v. Mintzer, 245 Fed. 297 (C.C.A. 9th); Toledo Liberal Shooting Co. v. Erie Shooting Club, supra, 682; Harrison v. Fite, 148 Fed. 781, 786 (C.C.A. 8th). It is not without significance that the disputed area has been treated as non-navigable both by the Secretary of the Interior and the Oregon courts. The Secretary, in 19 L.D. 439, December 3, 1894, described Lake Malheur as non-navigable, and in 16 L.D. 256, March 3, 1893, and in 30 L.D. 521, March 11, 1901, as little more than a swamp or marsh, and again as a vast marsh or tule swamp with comparatively little open water. The Oregon Supreme Court, in cases involving the correctness of the present or previous meander lines, has repeatedly recognized that Lake Malheur is non-navigable. See French-Glenn Live Stock Co. v. Springer, 35 Ore. 312, 323; 58 Pac. 102 (1899), 185 U.S. 47, 53; Cawlfield v. Smyth, 69 Ore. 41, 42; 138 Pac. 227 (1914); Bailey v. Malheur Irrigation Co., 36 Ore. 54, 55; 57 Pac. 910 (1899); In re Rights to Use of Waters of Silvies River, 115 Ore. 27, 34; 237 Pac. 322 (1925).",Navigability.
+246,102428,1,2,"Oregon contends that the State has never adopted the rule of Hardin v. Jordan, supra , and that in any case the rule has never been applied by this Court and, further, is not applicable to lakes the size of Malheur and Harney. See Stewart v. Turney, 237 N.Y. 117, 123; 142 N.E. 437; Granger v. Canandaigua, 257 N.Y. 126, 130; 177 N.E. 394; Richardson v. Sims, 118 Miss. 728; 80 So. 4; Boardman v. Scott, 102 Ga. 404, 406-419; 30 S.E. 982. But if applied, and the upland proprietors whose grants are bounded by the meander line are held to take to the center of the lakes, then it is insisted that the United States, which must prevail upon the strength of its own title rather than the weakness of that of the State, cannot maintain the present suit to quiet title with respect to any part of the beds of the lakes thus shown to belong to the upland proprietors. A bill to quiet title may not be defeated by showing that the plaintiff's interest, otherwise sufficient to support the bill, is subject to possibly superior rights in third persons not parties to the suit. Van Wyck v. Knevals, 106 U.S. 360, 368, 369; Lane v. Watts, 234 U.S. 525, 541; 235 U.S. 17, 23; see also Gridley v. Wynant, 23 How. 500, 503; Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 223, 234. It is enough that the interest asserted by the plaintiff in possession of land is superior to that of those who are parties defendant. Before Oregon was admitted to statehood, the United States is shown to have acquired title which it has never in terms conveyed away. Its possession and claim of title have ever since continued. The Executive Order setting aside the area in question as a bird reservation was an assertion of title and possession. Following the Order, as the Master found, the United States, through representatives of the Department of Agriculture, particularly a resident protector or warden, has taken active control of all the lands within the meander line. In the exercise of that control it has excluded hunters, erected posts marking the limits of the reservation, posted notices advising all persons of the existence of the reservation and warning them to refrain from hunting on it. This possession of the United States, under color and claim of title, is not shown to have been disputed or interfered with. As it is sufficient to preclude any action at law in the nature of ejectment, it is an adequate basis for relief in equity to remove the cloud created by the assertion of any inferior title of the State. Wehrman v. Conklin, 155 U.S. 314, 325; Allen v. Hanks, 136 U.S. 300, 311; see Sharon v. Tucker, 144 U.S. 533, 543-548; Lancaster v. Kathleen Oil Co., 241 U.S. 551, 555. There is no course of legal procedure by which a title to land can be adjudicated as good against all the world. It is therefore unnecessary to determine whether the rule of Hardin v. Jordan, supra , applies to grants of upland fronting on Lake Malheur and Harney Lake, or what interests, if any, have been acquired in the disputed area by any of the upland owners, other than Oregon. The United States is entitled to relief so far as it is able to show that Oregon is without any right or title on the basis of which it would be entitled to disturb the possession of the United States. III. Oregon's Claim of Title to the Lake Beds in Consequence of Grants of Uplands by the United States. This claim is based upon the assumption, which for present purposes we also make, that the rule of Hardin v. Jordan, supra , does not obtain in Oregon, and that accordingly the ownership of upland proprietors does not extend within the meander line boundary, and also upon the statute of Oregon effective February 25, 1921, c. 280, Laws of 1921. This legislation declares that lakes within the State which have been meandered by United States surveys are navigable public waters of the State, and that the title to the bed and land thereunder, including the shore or space between ordinary high and low water marks not previously granted by the State is hereby declared to be in the State of Oregon, and the State of Oregon hereby asserts and declares its sovereignty over the same and its ownership thereof. The contention is that, upon grant of the uplands by the United States, whether to the State or others, title to the adjacent lake beds vested in the State by operation of the statute. It is insisted that after statehood local law controls the disposition of the title to lands retained by the United States underlying non-navigable waters within the State, and that the effect, upon the title to such lands, of the conveyances of the adjacent upland by the United States is to be determined by reference to state laws. In support of this proposition, reliance is placed upon language in the opinion in Hardin v. Jordan, supra, 381-384, which, however, refers in part to conveyances of uplands bounded on navigable waters (tide water), and upon the decisions of certain state courts applying the rule contended for to lands underlying non-navigable waters. See Fuller v. Shed, 161 Ill. 462, 494; 44 N.E. 286; Hammond v. Shepard, 186 Ill. 235, 241; 57 N.E. 867; Wilton v. Van-Hessen, 249 Ill. 182; 94 N.E. 134; Iowa v. Jones, 143 Iowa 398, 402; 122 N.W. 241; Lamprey v. State, 52 Minn. 181, 192; 53 N.W. 1139; McBride v. Whitaker, 65 Neb. 137, 154; 90 N.W. 966; Ne-pee-Nauk Club v. Wilson, 96 Wis. 290, 295; 71 N.W. 661; compare Whitney v. Detroit Lumber Co., 78 Wis. 240, 246; 47 N.W. 425. It is true, as was specifically pointed out in Oklahoma v. Texas, supra, 594, 595, that the disposition of such lands is a matter of the intention of the grantor, the United States, and if its intention be not otherwise shown it will be taken to have assented that its conveyance should be construed and given effect in this particular according to the law of the state in which the land lies. This was the effect of the decisions in Hardin v. Jordan, supra ; Mitchell v. Smale, 140 U.S. 406; and Kean v. Calumet Canal Co., 190 U.S. 452, in which conveyances bounded upon the waters of a non-navigable lake were, when construed in accordance with local law, held impliedly to convey to the middle of the lake. The rule that title to lands underlying navigable waters presumptively passes to the State upon admission to the Union has already been noted. Massachusetts v. New York, supra, 89; see Scott v. Lattig, supra, 242, 243. But in no case has this Court held that a state could deprive the United States of its title to land under non-navigable waters without its consent, or that a grant of uplands to private individuals, which does not in terms or by implication include the adjacent land under water, nevertheless operates to pass it to the State. Whether, on any theory, such a result could be upheld was a question expressly reserved in Hardin v. Shedd, 190 U.S. 508, 519; Whitaker v. McBride, 197 U.S. 510, 515; Marshall Dental Co. v. Iowa, 226 U.S. 460, 462. In none of these cases were the parties necessary for the determination of that question before the Court. The laws of the United States alone control the disposition of title to its lands. The States are powerless to place any limitation or restriction on that control. Wilcox v. Jackson, 13 Pet. 498, 516, 517; Gibson v. Chouteau, 13 Wall. 92, 99; see Brewer-Elliott Oil Co. v. United States, supra, 88; United States v. Utah, supra, 75. The construction of grants by the United States is a federal not a state question, Packer v. Bird, 137 U.S. 661, 669, 670; French-Glenn Live Stock Co. v. Springer, 185 U.S. 47, 54; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 196, and involves the consideration of state questions only insofar as it may be determined as a matter of federal law that the United States has impliedly adopted and assented to a state rule of construction as applicable to its conveyances. See Oklahoma v. Texas, supra, 594, 595; Utah Power & Light Co. v. United States, 243 U.S. 389, 404. In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords an obvious guide in determining what impliedly passes to the grantee as an incident to land expressly granted. But no such question is presented here, for there is no basis for implying any intention to convey title to the State. The State, in making its present contention, does not claim as a grantee designated or named in any grant of the United States. It points to no rule ever recognized or declared by the courts of the State that a grant to individual upland proprietors impliedly grants to the State the adjacent land under water. [3] The only support for its claim is the statute of 1921, adopted subsequent to every grant of the United States involved in the present case. The case is not one of the reasonable construction of grants of the United States, but the attempted forfeiture to the State by legislative fiat of lands which, so far as they have not passed to the individual upland proprietors, remain the property of the United States. Such action by the State can no more affect the title of the United States than can the similar legislative pronouncements that streams within a State are navigable which this Court has found to be non-navigable. See Oklahoma v. Texas, supra ; United States v. Utah, supra, 75; United States v. Holt State Bank, supra, 55, 56. The Master correctly found that there were no facts or circumstances to establish, as matter of fact, any intent on the part of the United States to abandon or surrender its claim to any part of the area within the meander line. We accordingly accept the findings and determination of the Special Master, to which the Government does not except, as to the title and interest of the State of Oregon in Mud Lake and in Division B of the Narrows, and conclude that the State has no right, title or interest in any part of the remainder of the area, which is superior to that of the United States. The United States is entitled to a decree in conformity with this opinion, and also with the decree recommended by the Special Master so far as it is not inconsistent with this opinion, quieting its title and possession, as against the State of Oregon, to such remaining area within the meander line boundary of the five divisions. The parties, or either of them, if so advised, may, within thirty days, submit the form of decree to carry this opinion into effect, failing which the Court will prepare and enter the decree. It is so ordered.",Right of the United States to Maintain the Suit.
+247,108014,2,2,"The drop in commodity prices during the depression years destroyed the equilibrium of the 1920's and utter chaos ensued. Congress, in an effort to restore order to the market and boost the purchasing power of farmers, enacted the licensing provisions of the Agricultural Adjustment Act, 48 Stat. 31, 35. Under § 8 (3) the Secretary of Agriculture was empowered [t]o issue licenses permitting processors, associations of producers, and others to engage in the handling, in the current of interstate or foreign commerce, of any agricultural commodity or product thereof, or any competing commodity or product thereof. Such licenses shall be subject to such terms and conditions, not in conflict with existing Acts of Congress or regulations pursuant thereto, as may be necessary to eliminate unfair practices or charges that prevent or tend to prevent the effectuation of the declared policy and the restoration of normal economic conditions in the marketing of such commodities or products and the financing thereof. The Secretary of Agriculture may suspend or revoke any such license, after due notice and opportunity for hearing, for violations of the terms or conditions thereof. . . . Under the licensing system base-rating plans not unlike the private arrangements that obtained in the 1920's were adopted. [6] Producers were assigned bases which fixed the percent of their output that they would be permitted to sell at the Class I price that was paid for fluid milk. [7] The viability of the licensing scheme was jeopardized, however, by judicial decisions disapproving a similarly broad delegation of power under the National Industrial Recovery Act provisions, 48 Stat. 195. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). With its agricultural marketing program resting on quicksand, Congress moved swiftly to eliminate the defect of overbroad delegation and to shore up the void in the agricultural marketing provisions. Section 8 (3) of the 1933 Act was amended in 1935 and the pertinent language has been carried forward without significant change into § 8c of the present Act. Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, as amended, 7 U. S. C. § 608c (1964 ed. and Supp. IV). [8]",the first federal program
+248,108014,2,3,"The present system, which differs little in substance from the scheme conceived in 1937 for regulating the Boston market, [9] provides for a uniform market price payable to all producers by all handlers. [10] Prices are established for Class I and Class II uses. The total volume of milk channeled into the market in each category is multiplied by the appropriate coefficient price and the two results are totaled and then divided by the total number of pounds sold. The result represents the average value of milk sold in the marketing area and is the basic uniform price. Were all producers to receive this price they would share on an equal basis the profits of Class I marketing and assume equally the costs of disposing of the economic surplus in the Class II market. The actual price to the producer is, however, the blended price which is computed by adding and subtracting certain special differentials provided for by statute and order. See 7 CFR § 1001.64 (1969). The deduction for differential payments withheld for the benefit of nearby producers reduces the uniform blended price to those producers ineligible to collect this particular adjustment. [11] The provision is contained in § 1001.72 of the order and provides:  In making the payments to producers . . . each handler shall add any applicable farm location differential specified in this section. (a) With respect to milk received from a producer whose farm is located within any of the places specified in this paragraph, the differential shall be 46 cents per hundredweight, unless the addition of 46 cents gives a result greater than the Class I price determined under §§ 1001.60, 1001.62, and 1001.63 which is effective at the plant at which the milk is received. In that event there shall be added a rate which will produce that price. A differential of 23¢ is provided for deliveries from farms in intermediate nearby zones. § 1001.72 (b). The foregoing provisions appear in the so-called 1964 Massachusetts-Rhode Island Order, which consolidated into one region the four sub-markets which were previously regulated separately under the so-called four New England orders: the 1951 Boston order which carried forward the order adopted for the Boston area in 1937; the Springfield order promulgated in 1949; and the Southeastern New England order of 1958. Each order included a provision for a nearby differential payment to farmers within a stated radius of a designated market center. For example the differential under the Boston order was payable to farmers located within a 40-mile radius of the State House in Boston; a slightly lower differential was paid to farmers within an 80-mile radius. Under the 1964 order there is no central point for the computation of the radius for payment of the differential; the Secretary has retained the differential provisions as they appeared in the previous four orders. Farmers who would have been entitled to the differential under any one of the previous four marketing regulations continue to receive those payments under the present order. These nearby farmers are eligible for the differential on any shipments within the New England marketing area, even though their milk may actually be used outside the radius of their particular nearby zone.",the present regulatory scheme
+249,108014,1,2,"The foundation of the statutory scheme is to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments. The question before the Court, stated most simply, is whether payment of farm location differentials, set forth above, is a permissible adjustment under § 8c (5) (B) to the general requirement of uniformity of price. [12] The Secretary has in the past labeled the nearby differential a location differential and defended its inclusion in his orders on that ground. The justification and argument are now, however, pitched in a different key. The Government has apparently abandoned all but one of the numerous theories advanced below, and pressed most vigorously in the Blair v. Freeman litigation (125 U. S. App. D. C. 207, 370 F. 2d 229 (1966)), and it now stresses the provision in § 8c (5) (B) for volume, market, and production differentials customarily applied by the handlers subject to such order. While the proper resolution of the issue is by no means self-evident, we are persuaded that market . . . differentials customarily applied contemplates cost adjustments. The plain thrust of the federal statute was to remove ruinous and self-defeating competition among the producers and permit all farmers to share the benefits of fluid milk profits according to the value of goods produced and services rendered. The Government's proposed reading of the Act, bottomed, as it is, on the historical payment of a premium to nearby farmers during the monopolistic era of the cooperative pools, would come to perpetuate economic distortion and freeze the milk industry into the competitive structure that prevailed during the 1920's. Without the benefit of government muscle to eliminate crippling price warfare in the summer months, neither nearby nor country producers could share in the monopoly-type profits that accrue from fluid milk sales. Absent regulation only the handlers, if anyone, would stand to benefit from the fluid monopoly. While we cannot project what would be the case today if a free market prevailed, we might well anticipate that the nearby producers' winter advantages would be negligible in view of reduced transportation costs and more reliable refrigeration. Thus even in winter handlers might be free to play nearby and outlying farmers against each other since handlers would be free of the leverage exercised by the nearby cooperatives during the 1920's. Nearby producers now seek the best of both worlds. Having achieved the security that comes with regulation, they seek under a regulatory umbrella to appropriate monopoly profits that were never secure in the unregulated market. We are reluctant to attribute such intent to Congress and, simply in the name of administrative expertise, to follow a path not marked by the language of the statute. Indeed, such signposts as may be discerned from the legislative history point in a very different direction. The legislative history strongly suggests that market differentials, as well as all the other differentials, contemplated particular understood economic adjustments. The House Report, in discussing the allowable adjustments characterizes the market differential as a payment over and above the transportation costs, i. e., a location differential, for delivery to the primary market. [13] Thus farmers would share with handlers the savings from bypassing country-station processing and handling the milk only at the city plant. The significance of the legislative history emerges upon study of the subsequent administrative practice. The original Boston order obscures the market differential payment by providing in place of a labeled adjustment a two-price structure which allowed an additional 18¢ per cwt. for city-delivered milk over and above the costs of transporting the milk from the country plant. However, the testimony of Mr. Aplin for the Market Administrator erases any doubt that those responsible for administering the Act fully understood the meaning of the Committee's explanation of market differential. [14] Subsequent orders have combined the country station handling adjustment, properly the market differential, and the location-transportation differential into the so-called zone differential. [15] The statute before us does not contain a mandate phrased in broad and permissive terms. Congress has spoken with particularity and provided specifically enumerated differentials, which negatives the conclusion that it was thinking only in terms of historical considerations. The prefatory discussion in the House Report emphasizes the congressional purpose to confine the boundaries of the Secretary's delegated authority. [16] In these circumstances an administrator does not have broad dispensing power. See Addison v. Holly Hill Co., 322 U. S. 607, 617 (1944). The congressional purpose is further illumined by the character of the other statutory differentials for volume, grade or quality, location, and production, [17] all of which compensate or reward the producer for providing an economic service of benefit to the handler. [18] The general language of the committee report indicating that Congress intended to carry forward the basic regulatory approach adopted under the 1933 Act, following the precedent of the 1920's, is stressed by the dissent to this opinion. This committee language, it is argued, reinforces the continuity connotations of the customarily applied language, a thrust that is not blunted by any specific language indicating a legislative purpose to treat all farmers equally. Legislative silence is a poor beacon to follow in discerning the proper statutory route. For here the light illumines two different roads. If nearby payments had the notoriety and significance in the milk distribution industry attributed to them by the dissent, Congress could have given its blessing by carving out another specific exception to the uniform price requirement. In an Act whose very purpose was to avoid the infirmity of overbroad delegation and to set forth with particularity the details for a comprehensive regulatory scheme, it would have been a simple matter to include in a list of enumerated differentials, nearby payments, or at least allude to them in the report of the draftsmen. It is clear that Congress was not conferring untrammeled discretion on the Secretary and authorizing him to proceed in a vacuum. This was the very evil condemned by the courts that the 1935 amendments sought to eradicate. [19] It would be perverse to assume that congressional drafters, in eliminating ambiguity from the old Act, [20] were careless in listing their exceptions and selecting the illustrations from the committee report from which their words would ultimately derive content. [21] We consider our conclusions in no way undermined by the colloquy on the floor between Senator Copeland and Senator Murphy upon which the dissent places such emphasis. A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report in this instance. There is no indication, however, that the question of nearby differentials and the meaning of market . . . differentials customarily applied were precisely considered in the floor dialogue. The exchange is not only brief but also inconclusive as to meaning. [22] Indeed, Senator Murphy apparently acquiesced in Senator Copeland's implied criticism of the statute for providing uniform prices for distant and nearby producers within the marketing region. When Senator Copeland pursued his inquiry, asking whether the Act recognized the higher cost for taxes on nearby lands, Senator Murphy merely recited the differential provisions of the Act and suggested that they adopt the present practice of business, but conspicuously lacking is an affirmative statement that any specific differential covered these costs. This is not impressive legislative history especially in light of Senator Murphy's earlier agreement with Senator Copeland's statement that [t]he provisions of the equalization . . . provide that a producer who is producing his milk on farms near to cities would receive the same price for his product as a farmer who produces his milk, say, 40 or 50 miles away from the same community, and the specific business illustrations of the House Report.",the statutory scheme
+250,108014,1,3,"While market differentials customarily applied need not be restricted to the sole illustration in the House Report, that illustration, taken in conjunction with the discussion of all the statutory differentials, suggests that the permissible adjustments are limited to compensation for rendering an economic service. [23] The challenged nearby differentials do not fall into this category. [24] Nor has the Secretary advanced any economic justification for these differential payments. It is plain from the administrative record that the nearby differential was included in the original Boston order as a recognition of the favored position of nearby producers in the fluid market and as an inducement to nearby farmers to approve the Secretary's order. (J. A. 237. [25] ) The only sense in which the handler may be said to gain economically is by virtue of the elimination of the nearby producer as a potential competitor. While this factor is mentioned in the findings accompanying the 1937 order, it has not been emphasized in the 1964 findings and the testimony at the 1963 hearings suggests that support in the record is indeed scant. That entry of the nearbys into the distribution market would bring unwanted competition, is irrelevant if it does not jeopardize market stability. We think the analysis of the court below was correct: if there is any economic benefit here, producers should receive their compensation directly from the handlers and not out of the marketwide pool. 131 U. S. App. D. C., at 114, 402 F. 2d, at 665. While petitioner nearby farmers do not concede so readily the absence of economic foundation for the differential, no justifications are advanced that find any substantial support in the record. The allusion to the evenness of production on nearby farms would not justify the exclusive payment of this differential to nearby farmers. If the Secretary intended a production differential, all producers who qualify would be eligible. Some amici and petitioners point to higher taxes on nearby lands and opportunity costs as reason for retaining the differential. These are, admittedly, additional costs of nearby production, but they are of no concern to handlers who seek only to obtain reliably milk at the cheapest price. See Kessel, Economic Effects of Federal Regulation of Milk Markets, 10 J. Law & Econ. 51 (1967). This Court has been slow to attribute to Congress an intent to compensate for inefficient allocation of economic resources. Cf. West Ohio Gas Co. v. Comm'n, 294 U. S. 63, 72 (1935). While petitioners argue that the differential is a necessary inducement to keep the nearby farmers in business, the record does not reveal that the Secretary acted out of concern that the nearby farmers would quit the market, nor is there any evidence demonstrating the present necessity for nearby producers. In an era where efficient transportation is available this may be of nominal concern. At most this may have been an unspoken consideration in 1937. [26] Since the Secretary made no findings to that effect, the Court need not consider whether they would justify payment of the nearby differential in view of the legislative history indicating that the statute contemplates adjustments primarily for economic costs to handlers that are absorbed or reduced by the producers. Further if the representations of respondents are correct—and they are not without support in the record—it appears that the elimination of the 40-mile zone nearby differential payments of 46¢, even with the suspension of the intermediate differential payments of 23¢, would result in a higher uniform price to those farmers now receiving the 23¢ differential. [27]",scope of market differential
+251,108014,1,4,"Our holding does not represent a departure from this Court's precedents. No opinion of this Court has ever explicitly approved the nearby differential. Reliance on United States v. Rock Royal Co-op., 307 U. S. 533 (1939), is misplaced. This Court's refusal to invalidate the payment of a nearby differential to farmers in certain counties named in the New York order must be taken in the context of that action which was initiated by the Government against handlers who refused to obey the regulations. That decision did not repudiate the District Court's finding that the provision was discriminatory as between producers. Id., at 567. The narrow reach of our Rock Royal holding was recognized in Stark v. Wickard, 321 U. S. 288 (1944), where we noted that Rock Royal held the handlers without standing to object to the operation of the producer settlement fund, id., at 308, except as it affected handlers. The Court in Rock Royal went on to reject Rock Royal's contention that the payments placed those handlers without customers in the nearby counties at a competitive disadvantage. Our attention is also drawn to the First Circuit's decision in Green Valley Creamery v. United States, 108 F. 2d 342 (1939). As in Rock Royal, supra, the parties did not have standing to raise the invalidity of the nearby differential. To the extent the First Circuit's view is contrary to our present holding, we disapprove it.",prior decisions
+252,108014,1,5,"While this Court has announced that it will accord great weight to a departmental construction of its own enabling legislation, especially a contemporaneous construction, see Udall v. Tallman, 380 U. S. 1, 16 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396, 408 (1961); it is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in committee hearings. See Power Reactor Co. v. Electricians, supra ; United States v. American Trucking Assns., 310 U. S. 534, 539 (1940). In such circumstances, absent any indication that Congress differed with the responsible department, a court should resolve any ambiguity in favor of the administrative construction, if such construction enhances the general purposes and policies underlying the legislation. See American Power & Light Co. v. SEC, 329 U. S. 90, 112-114 (1946). The Court may not, however, abdicate its ultimate responsibility to construe the language employed by Congress. Those props that serve to support a disputable administrative construction are absent here. There is no suggestion in the findings, nor have the parties explained, how the present differential contributes to the broad, general purpose of eliminating crippling competition. Nor in the present case has the Court's attention been drawn to any hearings that suggest that Congress acted with the particular administrative construction before it in either 1935 or 1937. And if those administrators who participated in drafting the 1935 Act understood market differentials to encompass the farm location differential, they obviously failed to communicate their understanding to the drafters of the committee report. It is also evident that the 1937 re-enactment of the 1935 amendments was routine and did not follow a comprehensive review of the issues that had been explored in detail by the 1935 draftsmen who wrote the committee reports. [28] It is true that a report from the Federal Trade Commission set forth the computations employed under the 1936 Boston order which apparently provided for a nearby differential. [29] But the stark figures, set forth in the appendix to the report without explication, can hardly be said to have given the administrative construction the notoriety that this Court found persuasive in Udall v. Tallman, 380 U. S., at 18. In Udall the Court was impressed by the fact that the Secretary's interpretation had been a matter of public record and discussion. Id., at 17. Even despite active congressional involvement in reviewing certain administrative action in connection with particular leases, the Court noted that it would not attribute ratification to Congress. Udall v. Tallman, supra . Nor can petitioners put flesh on this argument by citing § 4 of the 1937 re-enactment, 50 Stat. 249, [30] and the committee report, H. R. Rep. No. 468, 75th Cong., 1st Sess., 4 (1937), which merely states in the language of the Act that § 4 purports to ratify, legalize, and confirm all action taken pursuant to the agreement and order provisions under the 1935 statute. [31]",significance of departmental construction
+253,108014,1,6,"Petitioners allude to the fact that the orders in question have been specifically approved by the farmers concerned as required by §§ 8c (9) (B) (i) and (ii) of the Act. [32] While the contention is adumbrated, the argument appears to run as follows: since provision is made for approval of orders by the regulated subjects, the Secretary's discretion should be generously interpreted. If provision for such approval could ever legitimize a regulation not authorized by statute, the provision has no significance in the case before us, in light of the considerations already discussed. It is the Secretary, not the farmers, who is responsible for administering the statute and initiating orders. [33]",relevance of producer approval
+254,108014,1,7,"Although the Secretary does not press the point, the private petitioners argue that this Court should at the very least reverse for a trial on the merits or alternatively reverse with instructions to remand to the Secretary for further consideration. This is not a case where a department has acted without a formal record. In such instances a trial might be appropriate to afford the department an opportunity to develop those facts which underpin its action. When action is taken on a record the department cannot then present testimony in court to remedy the gaps in the record, any more than arguments of counsel on review can substitute for an agency's failure to make findings or give reasons. A remand to the Secretary is inappropriate in the absence of a request by the Government. Counsel for the Department has advanced no new theory for sustaining the order. Cf. SEC v. Chenery Corp., 318 U. S. 80, 92 (1943). Unlike Addison v. Holly Hill Co., 322 U. S. 607 (1944), we do not have before us a definition in a regulation that is necessary to give meaning and content to the administrative scheme. Nor does our decision have the effect of engrafting a definition on a particular statutory term, a function that should, in the first instance, be left to the appropriate administrative body. The 1964 order, moreover, expressly provides for severance of any provision that is found invalid. See 7 CFR § 1001.96.",propriety of summary judgment
+255,108014,1,8,"Petitioner farmers' last line of retreat is their contention that they are entitled to escrow monies that have been accruing since the District Court's entry of the order granting the respondent's motion for a preliminary injunction. The court below struck an equitable balance in awarding to petitioners, nearby farmers, all escrow monies collected prior to the entry of final judgment by the District Court. This is a fair solution, and one this Court will not disturb. Petitioners have been on notice since Blair v. Freeman, 125 U. S. App. D. C. 207, 370 F. 2d 229 (1966), that nearby differentials were bottomed on a shaky statutory premise. Lest losing parties be encouraged to prolong litigation by frivolous appeals in order to reap a windfall, we think respondents deserve the fruits of their victory as of the date of final judgment at trial. The judgment below is Affirmed. THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.",disposition of the escrow fund
+256,110017,1,2,"The constitutional authority of Congress to establish uniform Laws on the subject of Bankruptcies throughout the United States [7] would clearly encompass a federal statute defining the mortgagee's interest in the rents and profits earned by property in a bankrupt estate. But Congress has not chosen to exercise its power to fashion any such rule. The Bankruptcy Act does include provisions invalidating certain security interests as fraudulent, or as improper preferences over general creditors. [8] Apart from these provisions, however, Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law. [9] Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Uniform treatment of property interests by both state and federal courts within a State serves to reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving a windfall merely by reason of the happenstance of bankruptcy. Lewis v. Manufacturers National Bank, 364 U. S. 603, 609. The justifications for application of state law are not limited to ownership interests; they apply with equal force to security interests, including the interest of a mortgagee in rents earned by mortgaged property. [10] The minority of courts which have rejected state law have not done so because of any congressional command, or because their approach serves any identifiable federal interest. Rather, they have adopted a uniform federal approach to the question of the mortgagee's interest in rents and profits because of their perception of the demands of equity. The equity powers of the bankruptcy court play an important part in the administration of bankrupt estates in countless situations in which the judge is required to deal with particular, individualized problems. But undefined considerations of equity provide no basis for adoption of a uniform federal rule affording mortgagees an automatic interest in the rents as soon as the mortgagor is declared bankrupt. In support of their rule, the Third and Seventh Circuits have emphasized that while the mortgagee may pursue various state-law remedies prior to bankruptcy, the adjudication leaves the mortgagee only such remedies as may be found in a court of bankruptcy in the equitable administration of the bankrupt's assets. Bindseil v. Liberty Trust Co., 248 F. 112, 114 (CA3 1917). [11] It does not follow, however, that equitable administration requires that all mortgagees be afforded an automatic security interest in rents and profits when state law would deny such an automatic benefit and require the mortgagee to take some affirmative action before his rights are recognized. What does follow is that the federal bankruptcy court should take whatever steps are necessary to ensure that the mortgagee is afforded in federal bankruptcy court the same protection he would have under state law if no bankruptcy had ensued. This is the majority view, which we adopt today. The rule of the Third and Seventh Circuits, at least in some circumstances, affords the mortgagee rights that are not his as a matter of state law. The rule we adopt avoids this inequity because it looks to state law to define the security interest of the mortgagee. At the same time, our decision avoids the opposite inequity of depriving a mortgagee of his state-law security interest when bankruptcy intervenes. For while it is argued that bankruptcy may impair or delay the mortgagee's exercise of his right to foreclosure, and thus his acquisition of a security interest in rents according to the law of many States, a bankruptcy judge familiar with local practice should be able to avoid this potential loss by sequestering rents or authorizing immediate state-law foreclosures. Even though a federal judge may temporarily delay entry of such an order, the loss of rents to the mortgagee normally should be no greater than if he had been proceeding in a state court: for if there is a reason that persuades a federal judge to delay, presumably the same reason would also persuade a state judge to withhold foreclosure temporarily. The essential point is that in a properly administered scheme in which the basic federal rule is that state law governs, the primary reason why any holder of a mortgage may fail to collect rent immediately after default must stem from state law.",We agree with the majority view.
+257,108153,2,1,"The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the Constitution and laws of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. This second element requires that the plaintiff show that the defendant acted under color of law. [4] As noted earlier we read both counts of petitioner's complaint to allege discrimination based on race in violation of petitioner's equal protection rights. [5] Few principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation. [6] Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes. The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U. S. 167 (1961); see United States v. Classic, 313 U. S. 299, 326 (1941); Screws v. United States, 325 U. S. 91, 107-111 (1945); Williams v. United States, 341 U. S. 97, 99-100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. Private persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of the statute. To act `under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents, United States v. Price, 383 U. S. 787, 794 (1966). [7]",conspiracies between public officials and private personsgoverning principles
+258,108153,2,2,"We now proceed to consider whether the District Court erred in granting summary judgment on the conspiracy count. In granting respondent's motion, the District Court simply stated that there was no evidence in the complaint or in the affidavits and other papers from which a `reasonably-minded person' might draw an inference of conspiracy, 252 F. Supp., at 144, aff'd, 409 F. 2d, at 126-127. Our own scrutiny of the factual allegations of petitioner's complaint, as well as the material found in the affidavits and depositions presented by Kress to the District Court, however, convinces us that summary judgment was improper here, for we think respondent failed to carry its burden of showing the absence of any genuine issue of fact. Before explaining why this is so, it is useful to state the factual arguments, made by the parties concerning summary judgment, and the reasoning of the courts below. In moving for summary judgment, Kress argued that uncontested facts established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police, [8] and that (b) he had, by a prearranged tacit signal, [9] ordered the food counter supervisor to see that Miss Adickes was refused service only because he was fearful of a riot in the store by customers angered at seeing a mixed group of whites and blacks eating together. [10] Kress also relied on affidavits from the Hattiesburg chief of police, [11] and the two arresting officers, [12] to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner's own deposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her contention that there was an arrangement between Kress and the police. Petitioner, in opposing summary judgment, pointed out that respondent had failed in its moving papers to dispute the allegation in petitioner's complaint, a statement at her deposition, [13] and an unsworn statement by a Kress employee, [14] all to the effect that there was a policeman in the store at the time of the refusal to serve her, and that this was the policeman who subsequently arrested her. Petitioner argued that although she had no knowledge of an agreement between Kress and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses. Further, she submitted an affidavit specifically disputing the manager's assertion that the situation in the store at the time of the refusal was explosive, thus creating an issue of fact as to what his motives might have been in ordering the refusal of service. We think that on the basis of this record, it was error to grant summary judgment. As the moving party, respondent had the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party. [15] Respondent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served. It is true that Mr. Powell, the store manager, claimed in his deposition that he had not seen or communicated with a policeman prior to his tacit signal to Miss Baggett, the supervisor of the food counter. But respondent did not submit any affidavits from Miss Baggett, [16] or from Miss Freeman, [17] the waitress who actually refused petitioner service, either of whom might well have seen and communicated with a policeman in the store. Further, we find it particularly noteworthy that the two officers involved in the arrest each failed in his affidavit to foreclose the possibility (1) that he was in the store while petitioner was there; and (2) that, upon seeing petitioner with Negroes, he communicated his disapproval to a Kress employee, thereby influencing the decision not to serve petitioner. Given these unexplained gaps in the materials submitted by respondent, we conclude that respondent failed to fulfill its initial burden of demonstrating what is a critical element in this aspect of the case—that there was no policeman in the store. If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a meeting of the minds and thus reached an understanding that petitioner should be refused service. Because [o]n summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion, United States v. Diebold, Inc., 369 U. S. 654, 655 (1962), we think respondent's failure to show there was no policeman in the store requires reversal. Pointing to Rule 56 (e), as amended in 1963, [18] respondent argues that it was incumbent on petitioner to come forward with an affidavit properly asserting the presence of the policeman in the store, if she were to rely on that fact to avoid summary judgment. Respondent notes in this regard that none of the materials upon which petitioner relied met the requirements of Rule 56 (e). [19] This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56 (c) to show initially the absence of a genuine issue concerning any material fact. [20] The Advisory Committee note on the amendment states that the changes were not designed to affect the ordinary standards applicable to the summary judgment. And, in a comment directed specifically to a contention like respondent's the Committee stated that [w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.  [21] Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits. [22] If respondent had met its initial burden by, for example, submitting affidavits from the policemen denying their presence in the store at the time in question, Rule 56 (e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint. To have avoided conceding this fact for purposes of summary judgment, petitioner would have had to come forward with either (1) the affidavit of someone who saw the policeman in the store or (2) an affidavit under Rule 56 (f) explaining why at that time it was impractical to do so. Even though not essential here to defeat respondent's motion, the submission of such an affidavit would have been the preferable course for petitioner's counsel to have followed. As one commentator has said: It has always been perilous for the opposing party neither to proffer any countering evidentiary materials nor file a 56 (f) affidavit. And the peril rightly continues [after the amendment to Rule 56 (e)]. Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required. 6 J. Moore, Federal Practice ¶ 56.22 [2], pp. 2824-2825 (2d ed. 1966).",summary judgment
+259,108153,2,1,"We are first confronted with the issue of whether a custom for purposes of § 1983 must have the force of law, or whether, as argued in dissent, no state involvement is required. Although this Court has never explicitly decided this question, we do not interpret the statute against an amorphous backdrop. What is now 42 U. S. C. § 1983 came into existence as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The Chairman of the House Select Committee which drafted this legislation described [24] § 1 as modeled after § 2 of the Civil Rights Act of 1866—a criminal provision that also contained language that forbade certain acts by any person under color of any law, statute, ordinance, regulation, or custom, 14 Stat. 27. In the Civil Rights Cases, 109 U. S. 3, 16 (1883), the Court said of this 1866 statute: This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. (Emphasis added.) Moreover, after an exhaustive examination of the legislative history of the 1866 Act, both the majority and dissenting opinions [25] in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), concluded that § 2 of the 1866 Civil Rights Act was intended to be limited to deprivations perpetrated `under color of law. '  [26] (Emphasis added.) Quite apart from this Court's construction of the identical under color of provision of § 2 of the 1866 Act, the legislative history of § 1 of the 1871 Act, the lineal ancestor of § 1983, also indicates that the provision in question here was intended to encompass only conduct supported by state action. That such a limitation was intended for § 1 can be seen from an examination of the statements and actions of both the supporters and opponents of the Ku Klux Klan Act. In first reporting the Committee's recommendations to the House, Representative Shellabarger, the Chairman of the House Select Committee which drafted the Ku Klux Klan Act, said that § 1 was  in its terms carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights. [27] (Emphasis added.) Senator Edmunds, Chairman of the Senate Committee on the Judiciary, and also a supporter of the bill, said of this provision: The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which have since become a part of the Constitution. [28] (Emphasis added.) Thus, in each House, the leader of those favoring the bill expressly stated his understanding that § 1 was limited to deprivations of rights done under color of law. That Congress intended to limit the scope of § 1 to actions taken under color of law is further seen by contrasting its legislative history with that of other sections of the same Act. On the one hand, there was comparatively little debate over § 1 of the Ku Klux Klan Act, and it was eventually enacted in form identical to that in which it was introduced in the House. [29] Its history thus stands in sharp contrast to that of other sections of the Act. [30] For example, § 2 of the 1871 Act, [31] a provision aimed at private conspiracies with no under color of law requirement, created a great storm of controversy, in part because it was thought to encompass private conduct. Senator Thurman, for example, one of the leaders of the opposition to the Act, although objecting to § 1 on other grounds, admitted its constitutionality [32] and characterized it as refer[ring] to a deprivation under color of law, either statute law or `custom or usage' which has become common law.  [33] (Emphasis added.) This same Senator insisted vociferously on the absence of congressional power under § 5 of the Fourteenth Amendment to penalize a conspiracy of private individuals to violate state law. [34] The comparative lack of controversy concerning § 1, in the context of the heated debate over the other provisions, suggests that the opponents of the Act, with minor exceptions, like its proponents understood § 1 to be limited to conduct under color of law. In addition to the legislative history, there exists an unbroken line of decisions, extending back many years, in which this Court has declared that action under color of law  is a predicate for a cause of action under § 1983, [35] or its criminal counterpart, 18 U. S. C. § 242. [36] Moreover, with the possible exception of an exceedingly opaque district court opinion, [37] every lower court opinion of which we are aware that has considered the issue, has concluded that a custom or usage for purposes of § 1983 requires state involvement and is not simply a practice that reflects longstanding social habits, generally observed by the people in a locality. [38] Finally, the language of the statute itself points in the same direction for it expressly requires that the custom or usage be that of any State,  not simply of the people living in a state. In sum, against this background, we think it clear that a custom, or usage, of [a] State for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials. Congress included customs and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of state officials in some areas of the post-bellum South. As Representative Garfield said: [E]ven where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. [39] Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a custom or usage with the force of law. This interpretation of custom recognizes that settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. If authority be needed for this truism, it can be found in Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362 (1940), where the Court held that although a statutory provision suggested a different note, the law in Tennessee as established by longstanding practice of state officials was that railroads and public utilities were taxed at full cash value. What Justice Frankfurter wrote there seems equally apt here: It would be a narrow conception of jurisprudence to confine the notion of `laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text. Id., at 369. And in circumstances more closely analogous to the case at hand, the statements of the chief of police and mayor of New Orleans, as interpreted by the Court in Lombard v. Louisiana, 373 U. S. 267 (1963), could well have been taken by restaurant proprietors as articulating a custom having the force of law. Cf. Garner v. Louisiana, 368 U. S. 157, 176-185 (DOUGLAS, J., concurring) (1961); Wright v. Georgia, 373 U. S. 284 (1963); Baldwin v. Morgan, 287 F. 2d 750, 754 (C. A. 5th Cir. 1961).",custom or usage
+260,108153,2,2,"For petitioner to recover under the substantive count of her complaint, she must show a deprivation of a right guaranteed to her by the Equal Protection Clause of the Fourteenth Amendment. Since the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States, Shelley v. Kraemer, 334 U. S. 1, 13 (1948), we must decide, for purposes of this case, the following state action issue: Is there sufficient state action to prove a violation of petitioner's Fourteenth Amendment rights if she shows that Kress refused her service because of a state-enforced custom compelling segregation of the races in Hattiesburg restaurants? In analyzing this problem, it is useful to state two polar propositions, each of which is easily identified and resolved. On the one hand, the Fourteenth Amendment plainly prohibits a State itself from discriminating because of race. On the other hand, § 1 of the Fourteenth Amendment does not forbid a private party, not acting against a backdrop of state compulsion or involvement, to discriminate on the basis of race in his personal affairs as an expression of his own personal predilections. As was said in Shelley v. Kraemer, supra , § 1 of [t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful. 334 U. S., at 13. At what point between these two extremes a State's involvement in the refusal becomes sufficient to make the private refusal to serve a violation of the Fourteenth Amendment, is far from clear under our case law. If a State had a law requiring a private person to refuse service because of race, it is clear beyond dispute that the law would violate the Fourteenth Amendment and could be declared invalid and enjoined from enforcement. Nor can a State enforce such a law requiring discrimination through either convictions of proprietors who refuse to discriminate, or trespass prosecutions of patrons who, after being denied service pursuant to such a law, refuse to honor a request to leave the premises. [40] The question most relevant for this case, however, is a slightly different one. It is whether the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment. Although this Court has not explicitly decided the Fourteenth Amendment state action issue implicit in this question, underlying the Court's decisions in the sit-in cases is the notion that a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act. As the Court said in Peterson v. City of Greenville, 373 U. S. 244, 248 (1963): When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby `to a significant extent' has `become involved' in it. Moreover, there is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth Amendment. In Baldwin v. Morgan, supra , the Fifth Circuit held that [t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state. The Court then went on to say: As we have pointed out above the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so.  Id., at 755-756 (emphasis added). We think the same principle governs here. For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law. Without deciding whether less substantial involvement of a State might satisfy the state action requirement of the Fourteenth Amendment, we conclude that petitioner would show an abridgment of her equal protection right, if she proves that Kress refused her service because of a state-enforced custom of segregating the races in public restaurants.",state action14th amendment violation
+261,108153,2,3,"For purposes of remand, we consider it appropriate to make three additional points. First, the District Court's pretrial opinion seems to suggest that the exclusive means available to petitioner for demonstrating that state enforcement of the custom relevant here would be by showing that the State used its criminal trespass statute for this purpose. We disagree with the District Court's implicit assumption that a custom can have the force of law only if it is enforced by a state statute. [41] Any such limitation is too restrictive, for a state official might act to give a custom the force of law in a variety of ways, at least two examples of which are suggested by the record here. For one thing, petitioner may be able to show that the police subjected her to false arrest for vagrancy for the purpose of harassing and punishing her for attempting to eat with black people. [42] Alternatively, it might be shown on remand that the Hattiesburg police would intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants. [43] Second, we think the District Court was wrong in ruling that the only proof relevant to showing a custom in this case was that demonstrating a specific practice of not serving white persons who were in the company of black persons in public restaurants. As Judge Waterman pointed out in his dissent below, petitioner could not possibly prove a long and unvarying habit of serving only the black persons in a mixed party of whites and blacks for the simple reason that it was only after the Civil Rights Act of 1964 became law that Afro-Americans had an opportunity to be served in Mississippi `white' restaurants at all, 409 F. 2d, at 128. Like Judge Waterman we think the District Court viewed the matter too narrowly, for under petitioner's complaint the relevant inquiry is whether at the time of the episode in question there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. Such a custom, of course, would perforce encompass the particular kind of refusal to serve challenged in this case. Third, both the District Court and the majority opinion in the Court of Appeals suggested that petitioner would have to show that the relevant custom existed throughout the State, and that proof that it had the force of law in Hattiesburg—a political subdivision of the State—was insufficient. This too we think was error. In the same way that a law whose source is a town ordinance can offend the Fourteenth Amendment even though it has less than state-wide application, so too can a custom with the force of law in a political subdivision of a State offend the Fourteenth Amendment even though it lacks state-wide application. In summary, if petitioner can show (1) the existence of a state-enforced custom of segregating the races in public eating places in Hattiesburg at the time of the incident in question; and (2) that Kress' refusal to serve her was motivated by that state-enforced custom, she will have made out a claim under § 1983. [44] For the foregoing reasons we think petitioner is entitled to a new trial on the substantive count of her complaint. The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL took no part in the decision of this case.",three additional points
+262,108136,1,1,"Section 4009 was a response to public and congressional concern with use of mail facilities to distribute unsolicited advertisements that recipients found to be offensive because of their lewd and salacious character. Such mail was found to be pressed upon minors as well as adults who did not seek and did not want it. Use of mailing lists of youth organizations was part of the mode of doing business. At the congressional hearings it developed that complaints to the Postmaster General had increased from 50,000 to 250,000 annually. The legislative history, including testimony of child psychology specialists and psychiatrists before the House Committee on the Post Office and the Civil Service, reflected concern over the impact of the materials on the development of children. A declared objective of Congress was to protect minors and the privacy of homes from such material and to place the judgment of what constitutes an offensive invasion of those interests in the hands of the addressee. To accomplish these objectives Congress provided in subsection (a) that the mailer is subject to an order to refrain from further mailings of such materials to designated addressees. Subsection (b) states that the Postmaster General shall direct the sender to refrain from further mailings to the named addressees. Subsection (c) in describing the Postmaster's order states that it shall expressly prohibit the sender . . . from making any further mailings to the designated addressees. . . . Subsection (c) also requires the sender to delete the addressee's name from all mailing lists and prohibits the sale, transfer, and exchange of lists bearing the addressee's name. There are three plausible constructions of the statute, with respect to the scope of the prohibitory order. The order could prohibit all future mailings to the addressees, all future mailings of advertising material to the addressees, or all future mailings of similar materials. The seeming internal statutory inconsistency is undoubtedly a residue of the language of the section as it was initially proposed. The section as originally reported by the House Committee prohibited further mailings of such pandering advertisements, § 4009 (a), further mailings of such matter, § 4009 (b), and any further mailings of pandering advertisements, § 4009 (c). H. R. Rep. No. 722, 90th Cong., 1st Sess., 125 (1967). The section required the Postmaster General to make a determination whether the particular piece of mail came within the proscribed class of pandering advertisements, as that term is used in the Ginzburg case. Id., at 69. The section was subsequently amended by the House of Representatives to eliminate from the Post Office any censorship function. Congressman Waldie, who proposed the amendment, envisioned a minimal role for the Post Office. The amendment was intended to remove the right of the Government to involve itself in any determination of the content and nature of these objectionable materials . . . . 113 Cong. Rec. 28660 (1967). The only determination left for the Postmaster General is whether or not the mailer has removed the addressee's name from the mailing list. Statements by the proponents of the legislation in both the House and Senate manifested an intent to prohibit all further mailings from the sender. In describing the effect of his proposed amendment Congressman Waldie stated: So I have said in my amendment that if you receive literature in your household that you consider objectionable. . . you can inform the Postmaster General to have your name stricken from that mailer's mailing list. 113 Cong. Rec. 28660. The Senate Committee Report on the bill contained similar language: If a person receives an advertisement which . . . he . . . believes to be erotically arousing . . . he may notify the Postmaster General of his determination. The Postmaster General is then required to issue an order to the sender directing him to refrain from sending any further mailings of any kind to such person. S. Rep. No. 801, 90th Cong., 1st Sess., 38. Senator Monroney, a major proponent of the legislation in the Senate, described the bill as follows: With respect to the test contained in the bill, if the addressee declared it to be erotically arousing or sexually provocative, the Postmaster General would have to notify the sender to send no more mail to that address . . . . 113 Cong. Rec. 34231 (1967). [3] The legislative history of subsection (a) thus supports an interpretation that prohibits all future mailings independent of any objective test. This reading is consistent with the provisions of related subsections in the section. Subsection (c) provides that the Postmaster General shall also direct the sender and his agents or assigns to delete immediately the names of the designated addressees from all mailing lists owned or controlled by the sender or his agents or assigns and, further, shall prohibit the sender and his agents or assigns from the sale, rental, exchange, or other transaction involving mailing lists bearing the names of the designated addressees. 39 U. S. C. § 4009 (c) (1964 ed., Supp. IV). It would be anomalous to read the statute to affect only similar material or advertisements and yet require the Postmaster General to order the sender to remove the addressee's name from all mailing lists in his actual or constructive possession. The section was intended to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender. See n. 6, infra. The impact of this aspect of the statute is on the mailer, not the mail. The interpretation of the statute that most completely effectuates that intent is one that prohibits any further mailings. Limiting the prohibitory order to similar materials or advertisements is open to at least two criticisms: (a) it would expose the householder to further burdens of scrutinizing the mail for objectionable material and possible harassment, and (b) it would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship. [4] It is difficult to see how the Postmaster General could decide whether the materials were similar or possessing touting or pandering characteristics without an evaluation suspiciously like censorship. Additionally, such an interpretation would be incompatible with the unequivocal language in subsection (c).",background and congressional objectives
+263,108136,1,2,"The essence of appellants' argument is that the statute violates their constitutional right to communicate. One sentence in appellants' brief perhaps characterizes their entire position: The freedom to communicate orally and by the written word and, indeed, in every manner whatsoever is imperative to a free and sane society. Brief for Appellants 15. Without doubt the public postal system is an indispensable adjunct of every civilized society and communication is imperative to a healthy social order. But the right of every person to be let alone must be placed in the scales with the right of others to communicate. In today's complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider. Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry in itself have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. It places no strain on the doctrine of judicial notice to observe that whether measured by pieces or pounds, Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And all too often it is matter he finds offensive. In Martin v. Struthers, 319 U. S. 141 (1943), MR. JUSTICE BLACK, for the Court, while supporting the [f]reedom to distribute information to every citizen, id., at 146, acknowledged a limitation in terms of leaving with the homeowner himself the power to decide whether distributors of literature may lawfully call at a home. Id., at 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer's right to communicate must stop at the mailbox of an unreceptive addressee. The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra ; cf. Hall v. Commonwealth, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed, 335 U. S. 875 (1948). In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer. To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word or pictures a different or more preferred status because they are sent by mail. The ancient concept that a man's home is his castle into which not even the king may enter has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another. See Camara v. Municipal Court, 387 U. S. 523 (1967). Both the absoluteness of the citizen's right under § 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents —or indeed the text of the language touting the merchandise. Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a governmental official. In effect, Congress has erected a wall—or more accurately permits a citizen to erect a wall—that no advertiser may penetrate without his acquiescence. The continuing operative effect of a mailing ban once imposed presents no constitutional obstacles; the citizen cannot be put to the burden of determining on repeated occasions whether the offending mailer has altered its material so as to make it acceptable. Nor should the householder have to risk that offensive material come into the hands of his children before it can be stopped. We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even good ideas on an unwilling recipient. That we are often captives outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. See Public Utilities Comm'n v. Pollak, 343 U. S. 451 (1952). The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain. The statutory scheme at issue accords to the sender an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked. Anderson Nat. Bank v. Luckett, 321 U. S. 233, 246 (1944). It thus comports with the Due Process Clause of the Fifth Amendment. The statutory scheme accomplishes this by providing that the Postmaster General shall issue a prohibitory order to the sender on the request of the complaining addressee. Only if the sender violates the terms of the order is the Postmaster General authorized to serve a complaint on the sender, who is then allowed 15 days to respond. The sender can then secure an administrative hearing. [5] The sender may question whether the initial material mailed to the addressee was an advertisement and whether he sent any subsequent mailings. If the Postmaster General thereafter determines that the prohibitory order has been violated, he is authorized to request the Attorney General to make application in a United States District Court for a compliance order; [6] a second hearing is required if an order is to be entered. The only administrative action not preceded by a full hearing is the initial issuance of the prohibitory order. Since the sender risks no immediate sanction by failing to comply with that order—it is only a predicate for later steps—it cannot be said that this aspect of the procedure denies due process. It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U. S. 393, 396 (1934). The appellants also contend that the requirement that the sender remove the addressee's name from all mailing lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressees from the lists and cease all mailings to those persons. Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of the names are prohibitive. We agree with the conclusion of the District Court that the burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when in the context presently before this Court it is being applied to commercial enterprises. 300 F. Supp., at 1041. See California State Auto Ins. Bureau v. Maloney, 341 U. S. 105 (1951). There is no merit to the appellants' allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff, 344 U. S. 174, 176 (1952). Here the appellants know precisely what they must do on receipt of a prohibitory order. The complainants' names must be removed from the sender's mailing lists and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation. For the reasons stated, the judgment appealed from is affirmed. It is so ordered.",first amendment contentions
+264,108586,1,3,"The essential charge of the indictment and the theory on which the case was tried was that the [Pipefitters] Fund, although formally set up as an entity independent of Local 562, was in fact a union fund, controlled by the union, contributions to which were assessed by the union as part of its dues structure, collected from non-members in lieu of dues, and expended, when deemed necessary, for union purposes and the personal use of the directors of the Fund. Brief for the United States 23 (emphasis added). See also Brief for the United States in Opposition to the Petition for Certiorari 11-12. [45] This was indeed, as we shall shortly see, the theory on which the indictment was drawn, the jury was instructed, and petitioners' convictions were affirmed. It is also the construction of § 610 that we have rejected in favor of the Government's narrower construction that the prerequisite for a permissible political fund is simply that it not be financed by actual or effective dues or assessments. See supra, at 413-414. On the other hand, we find that the indictment may be read to allege not only that the Pipefitters fund was a union fund, controlled by the union, but that contributions to [it] were assessed by the union as part of its dues structure, [and were] collected from non-members in lieu of dues . . . . For reasons that follow, however, we do not now construe the indictment as making this essential allegation, but leave that question open for determination on remand. We hold now only that the jury instructions failed to require proof of the essential element for conviction, and hence reverse the judgment below. First. Petitioners moved before trial to dismiss the indictment on the following ground, App. 28: The gist of the indictment is to allege that Section 610 . . . prohibits labor unions from forming parallel political organizations which receive voluntary contributions from the members of the union to be contributed and expended in Federal elections. Congress intended such political organizations to be legally authorized. Thus, the indictment fails to state an offense . . . . Petitioners also moved for a bill of particulars, id., at 30: whether it is the government's position and theory of the case that the mere fact that the [Pipefitters fund] was established, maintained, and administered by members, officers, employees, agents, foremen and shop [stewards] of Local 562 is, in and of itself, sufficient to make said Fund, under the law, a Fund of Local 562[;] . . . whether or not it is the government's position that Section 610 . . . prohibits the members, officers, employees, agents, foremen and shop [stewards] of a union from establishing any political organization or fund for the purpose of making contributions and expenditures in connection with [federal] elections . . . [;] . . . whether it is the government's position and theory of the case that the alleged `regular and systematic collection, receipt, and expenditures of money obtained from working members of Local 562 and from working members of other labor organizations employed under jurisdiction of the defendant Local 562' were voluntary or involuntary collections and contributions. [46] In a memorandum in opposition to the motion to dismiss, the Government acknowledged petitioners' argument that the indictment is defective in that it does not allege that the funds involved were not voluntary and took the position that [p]roof of the offense charged here does not depend upon whether the funds were volunteered or not by union members. The issue is whether these funds were the general funds of Local 562, id., at 56, which the indictment, in the Government's view, impliedly charged in alleging that petitioners  `unlawfully, wilfully and knowingly did conspire and agree with each other . . . to violate Section 610 . . . .'  Id., at 54. The trial court overruled each of petitioners' motions without opinion. On appeal the Court of Appeals adopted the Government's theory of the case. First, it ruled that by implication [t]he gist of the government's claim as reflected by the indictment is that the money in the fund is in truth and in fact money belonging to Local 562. 434 F. 2d, at 1120. [47] The court then held, ibid.: The failure of the indictment to allege that the payments to the fund were involuntary is not fatal. . . . If [the allegation that the money in the fund is in fact Union money] is established by the evidence, the issue of whether the payment to the fund is voluntary or involuntary is not controlling. Of course as observed by the [trial] court in its instructions, the issue of whether the payments to the fund were voluntary is relevant and material on the issue of whether the fund is the property of Local 562. Other considerations such as the intention of the donors as to ownership and control of the fund also bear upon the issue. This account of the proceedings below indicates that the question of the voluntariness of the contributions to the Pipefitters fund was regarded both at trial and on appeal as a matter relating to, but not essential for the basic charge of the indictment that Local 562 concealed political contributions of Union monies through the subterfuge of a Union-controlled fund. This theory, of course, flies in the face of the legislative history of § 610. The impressive lesson of that history in this regard is that the political contributions in issue violated § 610 if, and only if, payments to the fund were actually or effectively required for employment or union membership. In other words, the essence of the crime in this respect is whether the method of solicitation for the fund was calculated to result in knowing free-choice donations. Whether the fund was otherwise controlled by the Union is immaterial. We think, nevertheless, that the indictment may be read, consistently with the proper interpretation of § 610, to allege that the contributions to the Pipefitters fund derived from effective dues or assessments. [48] But whether the indictment should now be construed in light of the proceedings below to make this allegation is an altogether different question. [49] Since this precise question was not addressed below and has not been briefed or argued before us and since the case must, in any event, be remanded, whereupon the issue may become moot, [50] we do not now undertake to decide it. Instead, in the event that the Government chooses to proceed with the indictment before us, petitioners shall have leave to renew their motion to dismiss. Second. The jury instructions embody an interpretation of § 610 that is plainly erroneous. The trial court refused requests by petitioners for instructions that the jury should acquit if it found that contributions to the Pipefitters fund were made voluntarily. [51] Adopting a contrary view, the court instructed the jury, over petitioners' objections, that it should return verdicts of guilty if the fund was in fact a union fund, . . . the money therein was union money, and . . . the real contributor to the candidates was the union. In determining whether the Pipefitters Voluntary Fund was a bona fide fund, separate and distinct from the union or a mere artifice or device, the jury was further instructed to take into consideration all the facts and circumstances in evidence, and in such consideration . . . [to] consider 19 factors, several of which related to the regularity, rate, method of collection, and segregation from Union monies of payments to the fund. Others concerned the kinds of expenditures the fund made and the Union's control over them. Still others involved whether the payments to the fund were made voluntarily. In the latter regard the court charged (emphasis added): A great deal of evidence has been introduced on the question of whether the payments into the Pipefitters Voluntary . . . Fund by members of Local 562 and others working under its jurisdiction were voluntary or involuntary. This evidence is relevant for your consideration, along with all other facts and circumstances in evidence, in determining whether the fund is a union fund. However, the mere fact that the payments into the fund may have been made voluntarily by some or even all of the contributors thereto does not, of itself, mean that the money so paid into the fund was not union money.  See n. 9, supra. On appeal the Court of Appeals did not address the validity of these instructions other than to agree with the trial judge that the issue of whether the payments to the fund were voluntary is relevant and material [but not determinative] on the issue of whether the fund is the property of Local 562. Supra, at 438. The instructions, as the Court of Appeals confirmed, clearly permitted the jury to convict without finding that donations to the Pipefitters fund had been actual or effective dues or assessments. This was plain error. [52] The judgment of the Court of Appeals as to petitioners Callanan and Lawler is vacated, and the case is remanded to the District Court with directions to dismiss the indictment against them. See n. 11, supra. The judgment of the Court of Appeals as to petitioners Local 562 and Seaton is reversed, and the case is remanded to the District Court for proceedings as to them consistent with this opinion. It is so ordered. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.",The Government urges:
+265,118469,3,1,"The breeder of any sexually reproduced or tuber propagated plant variety (other than fungi or bacteria) who has so reproduced the variety . . . . 7 U. S. C. § 2402(a). Infringement of plant variety protection occurs, inter alia, if someone sells or markets the protected variety, sexually multiplies the variety as a step in marketing, uses the variety in producing a hybrid, or dispenses the variety without notice that the variety is protected. [10] Since the 1994 amendments, the PVPA also protects any variety that is essentially derived from a protected variety, § 2541(c)(1), and any variety whose production requires the repeated use of a protected variety, § 2541(c)(3). See Plant Variety Protection Act Amendments of 1994, § 9, 108 Stat. 3142. Practically, this means that hybrids created from protected plant varieties are also protected; however, it is not infringement to use a protected variety for the development of a hybrid. See 7 U. S. C. § 2541(a)(4). [11] The PVPA also contains exemptions for saving seed and for research. A farmer who legally purchases and plants a protected variety can save the seed from these plants for replanting on his own farm. See § 2543 ([I]t shall not infringe any right hereunder for a person to save seed produced by the person from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on the farm of the person . . .); see also Asgrow Seed Co. v. Winterboer, 513 U. S. 179 (1995). In addition, a protected variety may be used for research. See 7 U. S. C. § 2544 (The use and reproduction of a protected variety for plant breeding or other bona fide research shall not constitute an infringement of the protection provided under this chapter). The utility patent statute does not contain similar exemptions. [12] Thus, while the PVPA creates a statutory scheme that is comprehensive with respect to its particular protections and subject matter, giving limited protection to plant varieties that are new, distinct, uniform, and stable, § 2402(a), nowhere does it restrict the scope of patentable subject matter under § 101. With nothing in the statute to bolster their view that the PVPA provides the exclusive means for protecting sexually reproducing plants, petitioners rely on the legislative history of the PVPA. They argue that this history shows the PVPA was enacted because sexually reproducing plant varieties and their seeds were not and had never been intended by Congress to be included within the classes of things patentable under Title 35. [13] The PVPA itself, however, contains no statement that PVP certificates were to be the exclusive means of protecting sexually reproducing plants. The relevant statements in the legislative history reveal nothing more than the limited view of plant breeding taken by some Members of Congress who believed that patent protection was unavailable for sexually reproduced plants. This view stems from a lack of awareness concerning scientific possibilities. Furthermore, at the time the PVPA was enacted, the PTO had already issued numerous utility patents for hybrid plant processes. Many of these patents, especially since the 1950's, included claims on the products of the patented process, i. e., the hybrid plant itself. See Kloppenburg 264. Such plants were protected as part of a hybrid process and not on their own. Nonetheless, these hybrids still enjoyed protection under § 101, which reaffirms that such material was within the scope of § 101.",The PVPA provides plant variety protection for:
+266,118306,1,2,"(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at—. . . . . (B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if— (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation. 5 U. S. C. § 7114(a). In this case it is undisputed that the employee reasonably believed the investigation could result in discipline against him, that he requested union representation, that NASA is the relevant agency, and that, if the provision applies, a violation of § 7114(a)(2)(B) occurred. The contested issue is whether a NASA—OIG investigator can be considered a representative of NASA when conducting an employee examination covered by § 7114(a)(2)(B). NASA and its OIG argue that, when § 7114(a)(2)(B) is read in context and compared with the similar right to union representation protected in the private sector by the National Labor Relations Act (NLRA), the term representative refers only to a representative of agency management—  i. e., the entity that has a collective bargaining relationship with the employee's union. Brief for Petitioners 13. Neither NASA nor NASA—OIG has such a relationship with the employee's union at the Huntsville facility, see 5 U. S. C. § 7112(b)(7) (excluding certain agency investigators and auditors from appropriate bargaining units), and so the investigator in this case could not have been a representative of the relevant entity. By its terms, § 7114(a)(2)(B) is not limited to investigations conducted by certain entit[ies] within the agency in question. It simply refers to representatives of the agency, which, all agree, means NASA. Cf. § 7114(a)(2) (referring to employees in the unit and an exclusive representative of an appropriate unit in an agency). Thus, relying on prior rulings, the Authority found no basis in the FSLMRS or its legislative history to support the limited reading advocated by NASA and its OIG. The Authority reasoned that adopting their proposal might erode the right by encouraging the use of investigative conduits outside the employee's bargaining unit, and would otherwise frustrate Congress' apparent policy of protecting certain federal employees when they are examined and justifiably fear disciplinary action. 50 F. L. R. A., at 615, and n. 12. That is, the risk to the employee is not necessarily related to which component of an agency conducts the examination. See App. to Pet. for Cert. 65a (information obtained by NASA—OIG is referred to agency officials for administrative or disciplinary action). In resolving this issue, the Authority was interpreting the statute Congress directed it to implement and administer. 5 U. S. C. § 7105. The Authority's conclusion is certainly consistent with the FSLMRS and, to the extent the statute and congressional intent are unclear, we may rely on the Authority's reasonable judgment. See Federal Employees v. Department of Interior, 526 U. S. 86, 98-100 (1999); Fort Stewart Schools v. FLRA, 495 U. S. 641, 644-645 (1990). Despite the text of the statute and the Authority's views, NASA and NASA—OIG advance three reasons for their narrow reading. First, the language at issue is contained in a larger section addressing rights and duties related to collective bargaining; indeed, 5 U. S. C. § 7114 is entitled Representation rights and duties. Thus, other subsections define the union's right to exclusive representation of employees in the bargaining unit, § 7114(a)(1); its right to participate in grievance proceedings, § 7114(a)(2)(A); and its right and duty to engage in good-faith collective bargaining with the agency, §§ 7114(a)(4), (b). That context helps explain why the right granted in § 7114(a)(2)(B) is limited to situations in which the employee reasonably believes that the examination may result in disciplinary action—a condition restricting the right to union presence or participation in investigatory examinations that do not threaten the witness' employment. We find nothing in this context, however, suggesting that an examination that obviously presents the risk of employee discipline is nevertheless outside the coverage of the section because it is conducted by an investigator housed in one office of NASA rather than another. On this point, NASA's internal organization is irrelevant. Second, the phrase representative of the agency is used in two other places in the FSLMRS where it may refer to representatives of agency management acting in their capacity as actual or prospective parties to a collectivebargaining agreement. One reference pertains to grievances, § 7114(a)(2)(A), and the other to the bargaining process itself, § 7103(a)(12) (defining collective bargaining). NASA and NASA—OIG submit that the phrase at issue should ordinarily retain the same meaning wherever used in the same statute, and we agree. But even accepting NASA's and NASA—OIG's characterization of §§ 7114(a)(2)(A) and 7103(a)(12), the fact that some representative[s] of the agency may perform functions relating to grievances and bargaining does not mean that other personnel who conduct examinations covered by § 7114(a)(2)(B) are not also fairly characterized as agency representative[s]. As an organization, an agency must rely on a variety of representatives to carry out its functions and, though acting in different capacities, each may be acting for, and on behalf of, the agency. Third, NASA and NASA—OIG assert that their narrow construction is supported by the history and purpose of § 7114(a)(2)(B). As is evident from statements by the author of the provision [1] as well as similar text in NLRB v. J. Weingarten, Inc., 420 U. S. 251 (1975), this section of the FSLMRS was patterned after that decision. In Weingarten, we upheld the National Labor Relations Board's conclusion that an employer's denial of an employee's request to have a union representative present at an investigatory interview, which the employee reasonably believed might result in disciplinary action, was an unfair labor practice. Id., at 252-253, 256. We reasoned that the Board's position was consistent with the employee's right under § 7 of the NLRA to engage in concerted activities. Id., at 260. Given that history, NASA and its OIG contend that the comparable provision in the FSLMRS should be limited to investigations by representatives of that part of agency management with responsibility for collectively bargaining with the employee's union. This argument ignores the important difference between the text of the NLRA and the text of the FSLMRS. That the general protection afforded to employees by § 7 of the NLRA provided a sufficient basis for the Board's recognition of a novel right in the private sector, see id., at 260-262, 266-267, does not justify the conclusion that the text of the FSLMRS—which expressly grants a comparable right to employees in the public sector—should be narrowly construed to cover some, but not all, interviews conducted by agency representatives that have a disciplinary potential. Congress' specific endorsement of a Government employee's right to union representation by incorporating it in the text of the FSLMRS gives that right a different foundation than if it were merely the product of an agency's attempt to elaborate on a more general provision in light of broad statutory purposes. [2] The basis for the right to union representation in this context cannot compel the uncodified limitation proposed by NASA and its OIG. Employing ordinary tools of statutory construction, in combination with the Authority's position on the matter, we have no difficulty concluding that § 7114(a)(2)(B) is not limited to agency investigators representing an entity that collectively bargains with the employee's union.","The FSLMRS provides, in relevant part,"
+267,87161,1,1,"The first claim is for the application of the expansive and contracting power of a metallic rod, by different degrees of heat, to open and close a damper which governs the admission of air into a stove. Now, this claim is false in fact. The patentee was not the first to make this application of the different degrees of expansion of metals to open and close a damper to a stove. The evidence is clear, explicit, and uncontradicted. Moreover, a jury has so found in an issue ordered in this case, and which verdict does not appear to have been set aside, although it was disregarded in the decision of the case. This claim, even if it were true in fact, is clearly void in law, unless we agree to reverse the doctrine laid down by this court in the case of O'Reilly v. Morse, with regard to the eighth claim of Morse's patent. Besides, at the trial at law, the Circuit Court decided, in 1848, that this first claim could not be sustained. Yet, with ten years' judicial notice of this defect in his patent, the patentee has never amended it, entered a disclaimer, or attempted to avail himself of the privilege offered to him by the statute to rescue it from this charge, so destructive to its validity. At common law, a patent having this infirmity was absolutely void. The patent act of 1836, section 13, provides a remedy, where a patent is inoperative and void, by reason of a patentee's claiming in his specification as his invention more than he had a right to claim, and when the error has arisen through inadvertence or mistake. In such a case, the patentee is permitted to surrender his patent, and, on payment of a further sum, have his patent reissued as corrected. But he was not permitted to recover any damage for infringement which occurred before the date of the reissued patent. The patent act of 1837, section 7, gives a further privilege to the patentee of escaping the consequences of such a defect, where his patent is too broad, by permitting him to enter a disclaimer, to be taken and considered as part of the original specification. It does not subject him to the costs of a new patent, nor to the forfeiture of antecedent damages, where the disclaimer is made during the pendency of a suit, but gives the defendant a right to object to its validity on account of unreasonable neglect and delay in filing it. The ninth section of the same act provides for the case where the patentee, in his specification, has claimed to be the inventor of any material or substantial part of the thing patented, of which he was not the first inventor, and provided it be distinguishable from other parts claimed in his patent. He is permitted to sustain his action for such part as is bona fide his own invention, forfeiting his right to costs where he has not filed a disclaimer before suit brought. But no person, bringing any such suit, shall be entitled to the benefits of this section, who shall have unreasonably neglected or delayed to enter at the Patent Office a disclaimer, as aforesaid. Now, the first claim of this patent does not come within the category of the ninth section. It is not for a material and substantial part of the thing, distinguishable from other parts, but it is the case embraced in the seventh section, where the claim is void, because it is too broad. Here the claim is for a monopoly of the expansive power of metals when applied to a stove, and this expansive power is a necessary agent in every claim for a combination in the patent. The seventh section gives the patentee no right to recover at all, unless a disclaimer has been filed before trial or judgment. But, assuming that the privilege given by the ninth section be available to the patentee in this case, has he brought himself within the proviso? He has refused to avail himself of the privilege tendered to him by the law, and stands upon his patent. Notwithstanding the decision of the Circuit Court against this claim in 1848; notwithstanding the decision of this court in O'Reilly v. Morse; notwithstanding the verdict in 1853, declaring this claim false, no disclaimer has ever been entered. The pendency of the suit could be no reason, for the acts contemplate a pending suit. I cannot consent to say that this is not a case not only of unreasonable delay, but of stubborn rejection of the privilege offered by the law. The case of O'Reilly v. Morse cannot be quoted as a precedent for this. There, Morse was admitted to be the original inventor of the application of an element of nature in his eighth claim; but the court decided that it was void, because it was too broad. Until that decision was read in court, the patentee had not the least reason to suspect his claim to be invalid. The decision was a surprise not only to him, but many others more learned in the law, who had carefully examined this claim, and advised the patentee that it was valid. In the present case, the patentee disregarded the judgment of a Circuit Court, a verdict of a jury, and judgment of this court, all of which warned him of the necessity of a disclaimer many years before final judgment. I cannot consent to annul the statute altogether, and allow its benefits to a patentee who has stubbornly refused to submit to the conditions on which they are tendered. II. The interlocutory decree of the court below does not condemn the defendants for infringing the third claim of the complainant's patent, on which alone it was decided on the trial at law the defendant was liable, and on which it is now attempted to justify this decree. What that decree is, must be judged by the record, and not by any parol explanations or contradictions of it. The decree affirms — 1st. That the plaintiff was the first inventor of the application of the expansion and contraction of the inflexible metallic rod to the regulation of the heat of stoves. 2d. That any regulator in which the expansive and contracting power of an inflexible metallic rod, which expansion and contraction is produced by changes in the heat of the stove regulated, is applied to the damper to regulate the heat of the stove, is embraced within the principle of the invention claimed in the patent. 3d. That the defendants have made and sold regulators embracing that principle. 4th. That they must account for all regulators made and sold by them, which embrace that principle. This decree charges the defendant with the infringement of the first claim of the patent, and is in conformity with the doctrines advanced in the charge of the court, on the issue tried before them, where the court thus define the claim of the patent: Now, in this case, as I understand the claim of the patentee, he claims the application of the principle of expansion and contraction in a metallic rod for the purpose of regulating the heat of a stove. That is the new conception which he claims to have struck out, and, although the mere abstract conception would not have constituted the subject-matter of a patent, yet, when it is reduced to practice by any means, old or new, resulting usefully, it is the subject of a patent, independently of the machinery by which the application is made. Again, speaking of the first claim, he says: That claim is not for any mode or method of applying the expansion and contraction of the metallic rod to regulate the heat of the stove, but it is for the conception of the idea itself. The interlocutory decree says, therefore, in effect, that the brass rod regulators, which the defendants admit in their answers that they made and sold, are infringements of the plaintiff's patent, because they embrace the principle of the application of the expansive and contracting power of an inflexible metallic rod to the damper of a stove. And the master is directed to take an account of all regulators that fall within the principle specified, no matter what their mechanical structure is or how they may differ from the regulators of which the plaintiff gives a description in his specification, and no matter whether they embrace or not anything that the plaintiff claims in either his second, his third, or his fourth claim. The plaintiff and the court below say, in effect, that they do not care for any proof as to whether any claim of the patent but the first is infringed; and that, as the defendants have been guilty of applying the expansive and contracting power of an inflexible metallic rod to open and close the damper of a stove in which changes in the heat of the stove produce the expansion and contraction, they must respond for all instances of such application. The defendants are found guilty of infringing the first claim of the patent alone. No testimony was produced in the case to show that the Race patent infringed the third claim, and this fact was emphatically denied in the answer. Nor was the verdict and judgment at law put in evidence. And if it had been, it is no estoppel in equity to the defendants' putting the truth of that charge of the bill in issue in his answer. That verdict and judgment is put into the bill, as laying a proper ground for the granting of the preliminary injunction. Nor is it true, as now asserted, that this court has decided the question in the case of Silsby v. Foote, 14 Howard, 225. On that trial the court below had instructed the jury, that the defendants had not infringed the plaintiff's patent unless they had used all the parts embraced in the plaintiff's combination, and submitted the question to the jury whether there had been such infringement. This instruction was adjudged by this court to be correct. The question whether the verdict was correct was not before this court, and could not have been decided. The third claim which it is now alleged to be infringed is as follows: I also claim the combination above described, by which the regulation of the heat of a stove or other structure, in which it may be used, is effected. The law requires that a patent should particularly specify and point out the part, improvement, or combination, which the patentee claims as his own invention. This claim does not specify the combination claimed, otherwise than by reference to the body of the specification where two distinct and complex combinations of numerous parts and devices are set forth. After a full and fair trial, the jury have found, on an issue directed for that purpose, that the complainant was not the first and original inventor of the combinations set forth in this claim. But assuming that the court may disregard this verdict, and, without setting it aside or ordering a new trial of the issue, treat it as a nullity; and assuming, that without any testimony whatever being offered in the case, the court may, on view of the models, declare that the defendants' patent infringes that of complainant; and assuming the doctrine affirmed by this court in Silsby v. Foote, and McCormick v. Manny, to be correct, that defendant has not infringed plaintiff's patent unless he has used all the parts embraced in plaintiff's combination, I think it is clear to ocular demonstration that the defendants have not infringed either of the combinations claimed, unless we assert that all other combinations which produce the same result are equivalents for the first — a sophism which has just been rejected by this court in the case of McCormick v. Manny. A vindication or demonstration of the correctness of this conclusion could not be made intelligible unless by a long recital from the specification, and an exhibition of models or diagrams. The decree of the court below very properly does not assert or adjudge that defendants have used the complex combination of complainant's specification in any of its numerous parts save one — the expanding rod. On this point, therefore, my objection to the affirmance of any portion of this decree is, because it is founded on a claim admitted to be void in law, and is sustained by presuming, contrary to the record, that it was founded on a claim found by verdict in the case to be void in fact, and without any proof of infringement save ocular demonstration of the contrary. III. But, assuming the verdict of 1848 between the present complainant and some of the defendants to be conclusive as an estoppel on all of them, notwithstanding the denial of the answer and the evidence of our senses, yet that verdict was between the complainant's patent and the Race patent, which is called the brass-rod regulator, then used by the defendants. It had no reference whatever to the expander patent, afterwards used by defendants. There is no charge in the bill that the combination of this last patent infringes the complainant's patent. There was no evidence offered to prove such to be the fact. The master's report declares it not to be an infringement of the combination of the third claim — it is patent to the eyes of any one who will examine the models, that it does not; yet, because it used the expansive power of metals, the defendants are mulcted in the sum of $7,033 damages, not for invading the complainant's rights, but for evading his patent by a patented invention for a different combination. I forbear to make any further remarks on this enormity, because it is affirmed by the division of the court, and their opinion has, happily, not been compelled to defend it by argument. As it is without precedent, so neither can it be cited as such hereafter. IV. Lastly, after a very long and laborious investigation, the master has found that the profit of making and vending the machine charged as an infringement, is ten cents on each regulator. This finding of the report was excepted to by the complainant. The court overruled the exception and confirmed the report on this point; and, nevertheless, assess the damage at ten-fold the amount. By what process of reasoning or arithmetic, on what facts or what principle of law, this astonishing and ruinous decree is founded, it does not undertake to explain. I can conceive of no other ground than that the court have calculated the whole profit of the stove, as was done in the case of Seymour v. McCormick, and overruled by this court. Believing, therefore, that the decree of this court, so far as it affirms any portion of the decree of the Circuit Court, is not only unsustained by evidence, but contrary to the law as heretofore established by this court, I cannot give my assent to it.",I believe the patent of complainant to be void on its face.
+268,105516,2,1,"This is not a case where a supplier corporation has merged with its customer corporation with the result that the supplier's competitors are automatically and completely foreclosed from the customer's trade. [17] In this case, the only connection between du Pont, the supplier, and General Motors, the customer, is du Pont's 23% stock interest in General Motors. A conclusion that such a stock interest automatically forecloses du Pont's competitors from selling to General Motors would be without justification. Whether a foreclosure has occurred in the past or is probable in the future is a question of fact turning on the evidence in the record. The Court, at the outset of its opinion, states that the primary issue is whether du Pont's position as a substantial supplier to General Motors was achieved on competitive merit alone, or resulted from du Pont's stock interest in General Motors. Ante, pp. 588-589. In resolving this issue, the Court states that the basic facts are not in dispute and hence that it is unnecessary to set aside the findings of fact of the District Court as clearly erroneous. See Fed. Rules Civ. Proc., 52 (a). The basic facts are said to be that du Pont had no standing as a General Motors' supplier before the stock purchases of 1917-1919, that it gained a commanding position after the stock purchases, and that certain items of evidence in this gigantic record tend to indicate that du Pont hoped to get and actually did get a preference in General Motors' trade. From these alleged facts the Court draws the conclusion that du Pont has misused its 23% stock interest in General Motors to entrench itself as the primary supplier of General Motors' requirements for automotive finishes and fabrics. Ante, p. 606. The inference is overwhelming, the Court concludes, that du Pont's commanding position was promoted by its stock interest and was not gained solely on competitive merit. Ante, p. 605. With these words, the Court overturns the District Court's unequivocal findings to the effect that du Pont was a principal supplier to General Motors prior to the 1917-1919 stock purchases, that du Pont maintained this position in the years following the stock purchases, and that for the entire 30-year period preceding the suit, General Motors' purchases of du Pont's products were based solely on the competitive merits of those products. The evidence supporting these findings of the District Court may be summarized as follows: Du Pont is primarily a manufacturer of chemicals and chemical products. Thousands of its products could be used by General Motors in manufacturing automobiles, appliances and machinery. Despite du Pont's sales efforts over a period of 40 years, General Motors buys many of the commodities produced by du Pont from du Pont's competitors. [18] The Court, ignoring the many products which General Motors declines to buy from du Pont or which it buys only in small quantities, concentrates on the few products which du Pont has sold in large volume to General Motors for many yearsÔÇöpaints and fabrics. Before examining the history of those large-volume purchases, it is essential to understand where and by whom purchasing decisions within General Motors have been made. For many years, General Motors has been organized into some 30 operating divisions, each of which has final authority to make, and does make, its own purchasing decisions. This decentralized management system places full responsibility for purchasing decisions on the officers of the respective divisions. To speak of selling to General Motors is, therefore, misleading. A prospective supplier, instead of selling to General Motors, sells to Chevrolet, or Frigidaire, or Ternstedt, or Delco Light, as divisions. Moreover, when there are several plants within a division, each plant frequently has its own purchasing agent and presents a separate selling job. The record discloses that each division buys independently, that the pattern of buying varies greatly from one division to another, and that within each division purchases from du Pont have fluctuated greatly in response to price, quality, service and other competitive considerations. For example, Oldsmobile is the only division which buys antifreeze from du Pont and one of the two car divisions which does not finish its cars with Duco. Buick alone buys du Pont motor enamel, and Cadillac alone uses du Pont's copper electroplating exclusively. Thus the alleged nefarious influence arising from du Pont's stock interest apparently affects the Oldsmobile antifreeze buyer, but not the Oldsmobile paint buyer; the paint buyers at Chevrolet, Buick and Pontiac, but not the antifreeze or electroplating buyers; and the electroplating buyer at Cadillac, but not the Cadillac paint buyer. 1. Paints. ÔÇöDu Pont, for many years, has had marked success in the manufacture and sale of paints, varnishes, lacquers and related products. [19] In 1939, it produced 9.5% of the total dollar value of all finishes produced in the United States and, in 1947, 8.1%. In recent years, approximately three-fourths of du Pont's total sales to General Motors have consisted of industrial finishes. [20] Although du Pont has been General Motors' principal supplier of paint for many years, General Motors continues to buy about 30% of its paint requirements from competitors of du Pont. [21] Moreover, the sales of paint from du Pont to General Motors do not bulk large in the respective total sales and purchases of either company. In 1948, du Pont's finish sales to General Motors were only 3% of its total sales of all products; they were an infinitesimal percentage of General Motors' total purchases. Two products account for a high proportion of these finish sales to General Motors: Duco, a nitrocellulose lacquer invented and patented by du Pont, and Dulux, a synthetic resin enamel developed by du Pont. [22] However, Duco and Dulux did not come into commercial use until 1924 and 1931, respectively, and du Pont's position as a principal manufacturer of finishes was attained much earlier. Du Pont first assumed a leading position in the automotive finish field with its acquisition, in 1918, of a majority of the stock of the Flint Varnish & Color Works at Flint, Michigan. At that time, and for some years before, Flint supplied the finishes used on all General Motors' cars except Cadillac, and also for many other automobile companies. Du Pont's acquisition of General Motors' stock in 1917-1919 did not influence the General Motors' divisions in purchasing from Flint. In 1921, Flint lost one-half of the Oakland business and, in 1923, a substantial portion of the business at Buick, Oakland and Oldsmobile. 126 F. Supp., at 288. The invention and development of Duco in the early 1920's represented a significant technological advance. Automobiles previously had been finished by applying numerous coats of varnish. The finishing process took from 12 to 33 days, and the storage space and working capital tied up in otherwise completed cars were immense. The life expectancy of varnish finishes was less than a year. In December 1921, General Motors created a Paint and Enamel Committee which contacted numerous paint manufacturers in an attempt to find a quicker drying and more durable finish. Meanwhile, du Pont had been doing pioneering work in nitrocellulose lacquers. In 1920, a du Pont employee invented a quick drying and durable lacquer which contained a large amount of film-forming solids. This patented finish, named Duco, was submitted to the General Motors Paint and Enamel Committee in 1922 to be tested along with finishes of other manufacturers. After two years of testing and improvement, the Paint and Enamel Committee became satisfied that Duco was far superior to any other product or any other method of finishing automobiles then available. The gradual adoption of Duco by some of the General Motors' car divisions, viewed in conjunction with its proved superiority as an auto finish, illustrates the independent buying of each division and demonstrates that Duco made its way on its own merits. Oakland (now Pontiac) first adopted Duco for use on its open cars in 1924. The new finish was an immense success and was used on all Oakland cars the following year. Buick and Chevrolet adopted Duco in 1925, but Cadillac, which had offered it as an optional finish in 1925, did not abandon varnish for Duco until 1926. [23] From the beginning, General Motors continued to look for competitive materials. Letters were sent to other manufacturers urging them to submit samples of their pyroxylin paint for testing. Until 1927, none of the competing lacquers was comparable in quality to Duco. But the strenuous efforts by General Motors to develop competitive sources of lacquer eventually worked a substantial change in the du Pont position. Oldsmobile and Cadillac switched to a competitor, Rinshed-Mason, in 1927, and have continued to buy almost exclusively from that company ever since. Chevrolet, Buick and Pontiac continued to buy Duco, partly because of better service from nearby du Pont plants, and partly because repeated testing failed to disclose any lacquer superior to Duco. Finally, the success of Duco has never been confined to the General Motors' car divisions. In 1924 and 1925, nearly all car manufacturers abandoned varnish for Duco. By the end of 1925, all cars, except Ford and Cadillac, were using Duco. Nash, Hudson, Studebaker, Packard and Willys have bought, and still buy, Duco in substantial amounts from du Pont. Chrysler bought Duco in large volume until the early 1930's when, in pursuance of a policy to obtain suppliers to whom it would be the most important customer, it concentrated its purchases on one company, Pittsburgh Plate Glass. Ford has chosen to make a large part of its own requirements. During the 1920's, when Ford was losing its leadership in the lowpriced field to Chevrolet, it continued to finish its cars in Black Japan. Mr. Ford is reported to have said, Paint them any color, as long as they are black. Finally, in the 1930's, Ford was forced to shift to a synthetic enamel finish of its own manufacture. During this transition period, du Pont sold Ford a substantial amount of finishes. In 1935, Ford was making half and buying half from du Pont; by 1937, Ford was making three-fourths and buying one-fourth from du Pont. In 1938, Henry Ford issued instructions that the Ford Motor Company was not to purchase any more material from the du Pont Company. From that time until Henry Ford II became active in Ford management, purchases from du Pont practically ceased. Since then, Ford has purchased finishes from du Pont in very substantial amounts. General Motors has continued to test paints on thousands of cars annually. Du Pont has retained its position as primary lacquer supplier to several General Motors' divisions because these divisions have felt that Duco best fits their needs. Kettering, who was a leader in General Motors' research activities and who had been active in the testing and development of pyroxylin lacquers, testified that one of the reasons why General Motors' cars had a higher resale value than comparable cars in a used car lot is the paint. As the District Court found, In view of all the evidence of record, the only reasonable conclusion is that du Pont has continued to sell Duco in substantial quantities to General Motors only because General Motors believes such purchases best fit its needs. (Emphasis supplied.) 126 F. Supp., at 296. The second largest item which General Motors buys from du Pont is Dulux, a synthetic enamel finish used on refrigerators and other appliances. Prior to the development of Dulux, Duco was widely used as a finish for refrigerators. However, in 1927, Duco began to be replaced by porcelain, particularly at Frigidaire, a General Motors' appliance division. In 1930 and 1931, in collaboration with General Electric, du Pont developed Dulux, a greatly superior and cheaper product. Since its development, Dulux has been used exclusively by all the major manufacturers of refrigerators and other appliances ÔÇöGeneral Electric, Westinghouse, Crosley, and many othersÔÇöexcept Frigidaire, which continues to finish part of its refrigerators with porcelain. Disinterested witnesses testified as to the superior quality and service which has led them to continue to buy Dulux. [24] The District Court did not err in concluding that DuluxÔÇö is apparently an ideal refrigerator finish and is widely used by a number of major manufacturers other than General Motors. Several representatives of competitive refrigerator manufacturers testified that they purchased 100% of their requirements from du Pont. There is no evidence that General Motors purchased from du Pont for any reason other than those that prompted its competitors to buy Dulux from du Pont ÔÇö excellence of product, fair price and continuing quality of service.  (Emphasis supplied.) 126 F. Supp., at 296. The Court fails to note that du Pont's efforts to sell paints other than Duco and Dulux to General Motors have met with considerably less success. Du Pont does sell substantial amounts of automotive undercoats to Chevrolet and Buick but it has failed, despite continued sales efforts, to change the preference of Fisher Body, the largest purchaser of undercoats, for a competitor's undercoat. The successes and failures of other du Pont finish products at various General Motors' divisions emphasize the independent buying of each division and negate the notion that influence or coercion is responsible for what purchases do occur. Frigidaire uses large quantities of black finishing and machine varnish, but has not bought these products from du Pont since 1926. At A C Spark Plug Division, located in Flint, Michigan, where du Pont has a finishes plant, du Pont has been consistently successful in selling a substantial volume of the finishes used by that division. Delco-Remy Division, however, purchases most of its requirements of insulating varnish from du Pont's competitors. The Electromotive Division prefers a competitive lacquer for the interior finish of its locomotives, but uses Duco on the exterior because the railroads, most of which use Duco for the exterior of the balance of the train, specify that finish. At Guide Lamp Division, du Pont developed and still supplies a finish for the inside of headlight reflectors, but a competitor developed, and has kept, that division's substantial primer business. At the Inland Division, which produces steering wheels, du Pont had some of the business at one time, but has been completely supplanted by a competitor offering better service. The du Pont experience at the Packard Electric Division, which uses large quantities of high and low tension cable lacquer, is illustrative. Until 1932, Packard Electric was a separate company wholly unrelated to General Motors, and du Pont was a principal supplier of low tension lacquer and the sole supplier of black high tension lacquer. Now, as a division of General Motors, Packard Electric purchases its entire requirements of high tension lacquer from du Pont competitors, and produces its own low tension lacquer from film scrap bought from du Pont competitors. The District Court did not err in concluding, on the basis of this evidence, that du Pont's success in selling General Motors a substantial portion of its paint requirements was due to the superior quality of Duco and Dulux and to du Pont's continuing research and outstanding service, and that du Pont's position was at all times a matter of sales effort and keeping General Motors satisfied. There is no evidence that General Motors or any Division of General Motors was ever prevented by du Pont from using a finish manufactured by one of du Pont's competitors; nor is there any evidence that General Motors has suffered competitively from its substantial use of Duco. (Emphasis supplied.) 126 F. Supp., at 296. 2. Fabrics. ÔÇöThe principal fabrics which du Pont has sold to General Motors are imitation leather (du Pont's Fabrikoid and Fabrilite) and top material for open cars and convertibles (du Pont's Pontop, Everbright and Teal). [25] Its sales of these materials to General Motors in 1947 totaled $3,369,000, or about 38.5% of General Motors' total purchases of such materials. In earlier years, before closed cars with all metal tops came to predominate, these materials constituted a larger proportion of the total fabrics used in an automobile than they do today. By 1946 they averaged, apart from the top material for convertibles, only about 1.6 yards, costing about $2.22 per car. They are used principally for seat tops and backs, kick pads, rear shelves, etc. Du Pont does not manufacture the cotton and wool products of which most of the upholstery is composed. Du Pont entered the manufacture of coated fabrics in 1910, when it purchased the Fabrikoid Company of Newburgh. New York. Artificial leather, as it was then known, was of poor quality and had very limited areas of acceptance. As du Pont succeeded in improving both its quality and appearance, its use rapidly broadened. By mid-1913, du Pont Fabrikoid, a pyroxylin-coated fabric, had been accepted by the automobile industry for upholstery and interior trim. Three years later, in 1916, almost every automobile company was a purchaser of Fabrikoid, and a contemporary du Pont estimate in that year stated that 60% of all cars produced in the United States would be equipped with Fabrikoid. In that same year, du Pont rounded out its line of fabrics by acquiring the Fairfield Rubber Company, a manufacturer of rubber-coated fabrics. Du Pont thus had achieved, before it purchased its General Motors' stock, a leading position in the automotive fabric field. Before 1917, it was supplying substantially all of the coated fabrics requirements at Chevrolet and Oldsmobile, about half of the requirements at Buick, and about a third of the requirements at Oakland. At the Cadillac division, du Pont supplied all of the coated fabrics for interior trim but none of the top material. 126 F. Supp., at 296-297. Although there have been variations from year to year and from one car division to another in response to competitive considerations, du Pont generally has maintained its pre-1917 position as the principal supplier of coated and combined fabrics to General Motors. In 1926, General Motors purchased about 55.5% of these fabrics from du Pont, largely because Chevrolet switched entirely to du Pont after an unfortunate experience with competitive products during the preceding year. By 1930, the proportion had declined to about 31.5%, and du Pont was selling more fabrics to Ford than to General Motors. At the time of suit, du Pont's share had increased to 38.5% the remainder being supplied by du Pont's competitors. In addition to the mass of evidence supporting the District Court's finding that such purchases of fabrics as the General Motors divisions have made from du Pont from time to time were based upon each division's exercise of its business judgment and are not the result of du Pont domination (emphasis supplied), 126 F. Supp., at 301, the record clearly indicates that du Pont's fabrics can and have made their way in the automotive industry on their merits. Prior to the early 1920's, du Pont was the principal supplier of coated fabrics to all three of the then major producersÔÇöFord, Willys-Overland and General Motors. After Ford and Willys began to produce their own coated fabrics they still turned to du Pont for much of what they could not produce. Chrysler purchased substantial amounts from du Pont until, in the early 1930's, it embarked on its policy of one principal supplier for each product and chose Textileather, a du Pont competitor. Du Pont has continued to be Ford's largest supplier for the material which it does not manufacture for itself. Du Pont likewise has supplied, over the years, a considerable part of the coated and combined fabrics of most of the smaller automobile companies. The District Court did not err in concluding that Du Pont, the record shows, has maintained its position as the principal fabric supplier to General Motors through its early leadership in the field and by concentrating upon satisfactorily meeting General Motors' changing requirements as to quality, service and delivery. (Emphasis supplied.) 126 F. Supp., at 301. 3. Other Products. ÔÇöThe Court concludes only that du Pont has been given an unlawful preference with respect to paints and fabrics. By limiting the issue to these products, it eliminates from deserved consideration those products which General Motors does not buy in large quantities or proportions from du Pont. [26] Yet the logic of the Court's argumentÔÇöthat the stock relationship between du Pont and General Motors inevitably has or will result in a preference for du Pont productsÔÇö requires consideration of the total commercial relations between the two companies. Du Pont influence, if there were any, would be expected to apply to all products which du Pont makes and which General Motors buys. However, the evidence shows that du Pont has attempted to sell to the various General Motors' divisions a wide range of products in addition to paint and fabrics, and that it has succeeded in doing so only when these divisions, exercising their own independent business judgment, have decided on the basis of quality, service and price that their economic interests would best be served by purchasing from du Pont. Six such groups of products were considered in detail by the District Court: plastics, brake fluid, casehardening materials, electroplating materials, safety glass, and synthetic rubber and rubber chemicals. 126 F. Supp., at 319-324. A few examples drawn from the findings will suffice. Du Pont's sales to General Motors of celluloid (du Pont's Pyralin), used as windows in the side curtains of early automobiles, initially declined in 1918 after the stock purchase, and only revived when an improved product was adopted by all the large auto manufacturers. Instead of purchasing brake fluid and safety glass from du Pont, General Motors embarked, during the 1930's, on its own production of these substantial items. With respect to casehardening materials, General Motors has purchased less than half of its requirements from du Pont, while other auto manufacturers have purchased amounts larger in proportion and quantity. Although du Pont's new electroplating processes were widely adopted in the automobile and other industries in the 1930's only Cadillac has used du Pont's processes exclusively, Oldsmobile and Pontiac have used it occasionally, and Chevrolet and Buick never have used it except for brief periods. Neoprene, a synthetic rubber developed by du Pont, has been used to a much greater extent by Chrysler and Ford than by General Motors. Chrysler also uses, and helped develop, du Pont's synthetic rubber adhesive for brake linings, but the General Motors' divisions prefer a more expensive type of synthetic rubber. The record supports the conclusion of the District Court: All of the evidence bearing upon du Pont's efforts to sell these various miscellaneous products to General Motors supports a finding that the latter bought or refused to buy solely in accordance with the dictates of its own purchasing judgment. There is no evidence that General Motors was constrained to favor, or buy, a product solely because it was offered by du Pont. On the other hand, the record discloses numerous instances in which General Motors rejected du Pont's products in favor of those of one of its competitors. The variety of situations and circumstances in which such rejections occurred satisfies the Court that there was no limitation whatsoever upon General Motors' freedom to buy or to refuse to buy from du Pont as it pleased.  (Emphasis supplied.) 126 F. Supp., at 324. Evidence Relied on by the Court. ÔÇöThe Court, disregarding the mass of evidence supporting the District Court's conclusion that General Motors purchased du Pont paint and fabrics solely because of their competitive merit, relies for its contrary conclusion on passages drawn from several documents written during the years 1918-1926, and on the logical fallacy that because du Pont over a long period supplied a substantial portion of General Motors' requirements of paint and fabrics, its position must have been obtained by misuse of its stock interest rather than competitive considerations. The isolated instances of alleged pressure or intent to obtain noncompetitive preferences are four: (1) the Raskob report of December 1917; (2) several letters of J. A. Haskell, written during 1918-1920; (3) certain reports and letters of Pierre and Lammot du Pont during 1921-1924; and (4) a 1926 letter of John L. Pratt. Passages drawn from these 1918-1926 documents do not justify the conclusion reached by the Court. Each of them is a matter of disputed significance which cannot be evaluated without passing on the motivation and intent of the author. Each failed to achieve its specific object. Read in the context of the situations to which they were addressed, each is entirely consistent with the finding of the District Court that, although du Pont was trying to get as much General Motors' business as it could, there was no restriction on General Motors' freedom to buy as it chose, and that General Motors' buyers did not regard themselves as in any way limited. [27] Moreover, even if isolated paragraphs in these documents, taken from their context, are given some significance, and the other evidence relating to the period from 1918 to 1926 is entirely ignored, all of the evidence after 1926 affirmatively establishes without essential contradiction that du Pont did not use its stock interest to receive any preferential treatment from General Motors. Nor can present illegality be presumed from the bare fact that du Pont has continued to make substantial sales of several products to General Motors. [28] In the first place, the record affirmatively shows that the new products which du Pont has sold to General Motors since 1926 have made their way, at General Motors as elsewhere, on their merits. Sales of Duco, Dulux, Fabrilite and Teal are not attributable in any way to dealings in the earlier period. Secondly, the Court's presumption is based on the fact that du Pont does not sell to all other automobile manufacturers in the same proportion as it does to General Motors. But there is no reason why it shouldÔÇö the Government has not shown that sellers normally sell to all members of an industry in the same proportion. In any event, the record fully explains the disproportion. Since 1930, du Pont's sales to other members of the industry have proportionately declined, largely because Ford has chosen to make the major share of its requirements of paint and fabrics, and because Chrysler has followed the policy of selecting a single supplier to whom it can be the most important customer. The fact is that du Pont has continued to sell in substantial amounts to the smaller members of the automobile industry. The growth in the dominance of General Motors, Ford and ChryslerÔÇöcompanies which together account for more than 85% of automobile productionÔÇöwhen combined with the policies adopted by Ford and Chrysler, adequately explains why du Pont sells a larger proportion of paint and fabrics to General Motors than it does to the industry as a whole. It is true that ž 7 of the Clayton Act does not require proof of actual anticompetitive effects or proof of an intent to restrain trade. But these matters become crucial when the Court rests its conclusion that du Pont's stock interest violates the Act on evidence relating solely to an alleged du Pont intent to obtain a noncompetitive preference from General Motors, and on a finding that such a preference was actually secured through the unlawful use of du Pont's stock interest. Preference and intent are also relevant because the Government has brought this case 30 years after the event. If no actual restraint has occurred during this long period, the probability of a restraint in the future is indeed slight. Especially is this so when the only change in recent years has been in the direction of diminishing du Pont's participation in General Motors' affairs. Rule 52 ( a ) Governs This Case. ÔÇöThe foregoing summary of the evidence relating to General Motors' purchases of paint and fabrics from du Pont, comparatively brief as it is, reveals that a multitude of factual issues underlie this case. The occurrence of events, the reasons why these events took place, and the motives of the men who participated in them are drawn in question. The issue of credibility is of great importance. The District Judge had the opportunity to observe the demeanor of the witnesses and to judge their credibility at first hand. Thus, this case is a proper one for the application of the principle embodied in Rule 52 (a) of the Federal Rules of Civil Procedure, as amended, 329 U. S. 861: Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. United States v. Oregon Medical Society, 343 U. S. 326, 330-332, 339; United States v. Yellow Cab Co., 338 U. S. 338, 341-342. This is not a situation in which oral testimony is contradicted by contemporaneous documents. See United States v. United States Gypsum Co., 333 U. S. 364. In this case, the findings of the District Court are supported both by contemporaneous documents and by oral testimony. For example, General Motors' search for a better automotive finish, the superiority of the product developed by du Pont, and General Motors' continuous efforts to secure an equally good lacquer from other sources are all proved by letters and reports written in the early 1920's as well as by the oral testimony of many witnesses. Similarly, contemporaneous exhibits prove that General Motors purchased fabrics from du Pont because of the superiority of du Pont products, and that on other occasions it turned to competing suppliers even though du Pont's product was just as good. Appellate review of detailed findings based on substantial oral testimony and corroborative documents must be limited to setting aside those that are clearly erroneous. The careful and detailed findings of fact of the District Court in this case cannot be so labeled. [29]",foreclosure of competitors.
+269,105516,2,2,"Finally, even assuming the correctness of the Court's conclusion that du Pont's competitors have been or will be foreclosed from General Motors' paint and fabric trade, it is still necessary to resolve one more issue in favor of the Government in order to reverse the District Court. It is necessary to hold that the Government proved that this foreclosure involves a substantial share of the relevant market and that it significantly limits the competitive opportunities of others trading in that market. [30] The relevant market is the area of effective competition within which the defendants operate. Standard Oil Co. of California v. United States, 337 U. S. 293, 299-300, n. 5. [T]he problem of defining a market turns on discovering patterns of trade which are followed in practice. United States v. United Shoe Machinery Corp., 110 F. Supp. 295, 303, aff'd per curiam, 347 U. S. 521. Determination of the competitive market for commodities depends on how different from one another are the offered commodities in character or use, how far buyers will go to substitute one commodity for another. United States v. E. I. du Pont de Nemours & Co., 351 U. S. 377, 393. This determination is primarily one of fact. The Court holds that the relevant market in this case is the automotive market for finishes and fabrics, and not the total industrial market for these products. The Court reaches that conclusion because in its view automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products sufficiently distinct from all other finishes and fabrics . . . . Ante, pp. 593-594. We are not told what these peculiar characteristics are. Nothing is said about finishes other than that Duco represented an important contribution to the process of manufacturing automobiles. Nothing is said about fabrics other than that sales to the automobile industry are made by means of bids rather than fixed price schedules. Dulux is included in the automobile market even though it is used on refrigerators and other appliances, but not on automobiles. So are other finishes and fabrics used on diesel locomotives, engines, parts, appliances and other products which General Motors manufactures. Arbitrary conclusions are not an adequate substitute for analysis of the pertinent facts contained in the record. The record does not show that the fabrics and finishes used in the manufacture of automobiles have peculiar characteristics differentiating them from the finishes and fabrics used in other industries. What evidence there is in the record affirmatively indicates the contrary. The sales of the four products principally involved in this caseÔÇöDuco, Dulux, imitation leather, and coated fabrics ÔÇösupport this conclusion. Duco was first marketed not to General Motors, but to the auto refinishing trade and to manufacturers of furniture, brush handles and pencils. In 1927, 44% of du Pont's sales of colored Duco, and 51.5% of its total sales, were to purchasers other than auto manufacturers. Although the record does not disclose exact figures for all years, it does show that a substantial portion of du Pont's sales of Duco have continued to be for nonautomotive uses. [31] It is also significant that Duco was a patented product. Prior to the expiration of the patent in 1944, only five years before this suit was brought, du Pont issued over 250 licensesÔÇöto all that appliedÔÇöcovering its patented process. If Duco is to be treated as a separate market solely because of its initial superiority, du Pont is being penalized rather than rewarded for contributing to technological advance. Dulux has never been used in the manufacture of automobiles. It replaced Duco and other lacquers as a finish on refrigerators, washers, dryers, and other appliances, and continues to have wide use on metallic objects requiring a durable finish. Yet the Court includes it as a finish having the unspecified but peculiar characteristics distinctive of automotive finishes. Ante, p. 593. In 1947, when du Pont's sales of Duco and Dulux to General Motors totaled about $15,400,000, the total national market for paints and finishes was $1,248,000,000, of which about $552,000,000 was for varnishes, lacquers, enamels, japans, thinners and dopes, the kinds of finishes sold primarily to industrial users. [32] There is no evidence in this record establishing that these industrial finishes are not competitive with Duco and Dulux. There is considerable evidence that many of them are. It is probable that du Pont's total sales of finishes to General Motors in 1947 constituted less than 3.5% of all sales of industrial finishes. The record also shows that the types of fabrics used for automobile trim and convertible topsÔÇöimitation leather and coated fabricsÔÇöare used in the manufacture of innumerable products, such as luggage, furniture, railroad upholstery, books, brief cases, baby carriages, hassocks, bicycle saddles, sporting goods, footwear, belts and table mats. In 1947, General Motors purchased about $9,454,000 of imitation leather and coated fabrics. Of this amount, $3,639,000 was purchased from du Pont (38.5%) and $5,815,000 from over 50 du Pont competitors. Since du Pont produced about 10% of the national market for these products in 1946, 1947 and 1948, and since only 20% of its sales were to the automobile industry, the du Pont sales to the automobile industry constituted only about 2% of the total market. The Court ignores the record by treating this small fraction of the total market as a market of distinct products. It will not do merely to stress the large size of these two corporations. The figures as to their total salesÔÇö $793,000,000 for du Pont and $3,815,000,000 for General Motors in 1947ÔÇödo not fairly reflect the volume of commerce involved in this case. The commerce involved here is about $19,000,000 of industrial finishes and about $3,700,000 of certain industrial fabricsÔÇöless than 3.5% of the national market for industrial finishes, and only about 1.6% of the national market for these fabrics. The Clayton Act is not violated unless the stock acquisition substantially threatens the competitive opportunities available to others. International Shoe Co. v. Federal Trade Commission, 280 U. S. 291; Transamerica Corp. v. Board of Governors, 206 F. 2d 163; V. Vivaudou, Inc. v. Federal Trade Commission, 54 F. 2d 273. The effect on the market for the product, not that on the transactions of the acquired company, is controlling. Fargo Glass & Paint Co. v. Globe American Corp., 201 F. 2d 534. [33] The Court might be justified in holding that products sold to the automotive industry constitute the relevant market in the case of products such as carburetors or tires which are sold primarily to automobile manufacturers. But the sale of Duco, Dulux, imitation leather, and coated fabrics is not so limited. The burden was on the Government to prove that a substantial share of the relevant market would, in all probability, be affected by du Pont's 23% stock interest in General Motors. The Government proved only that du Pont's sales of finishes and fabrics to General Motors were large in volume, and that General Motors was the leading manufacturer of automobiles during the later years covered by the record. The Government did not show that the identical products were not used on a large scale for many other purposes in many other industries. Nor did the Government show that the automobile industry in general, or General Motors in particular, comprised a large or substantial share of the total market. What evidence there is in the record affirmatively indicates that the products involved do have wide use in many industries, and that an insubstantial portion of this total market would be affected even if an unlawful preference existed or were probable. For the reasons stated, I conclude that ž 7 of the Clayton Act, prior to its amendment in 1950, did not apply to vertical acquisitions; that the Government failed to prove that there was a reasonable probability at the time of the stock acquisition (1917-1919) of a restraint of commerce or a tendency toward monopoly; and that, in any event, the District Court was not clearly in error in concluding that the Government failed to prove that du Pont's competitors have been or may be foreclosed from a substantial share of the relevant market. Accordingly, I would affirm the judgment of the District Court.",relevant market.
+270,108614,2,1,"The developing Rivergate Industrial District occupies nearly 3,000 acres at the tip of the peninsula formed by the confluence of the Columbia and Willamette Rivers. Rivergate's six miles of waterfront will provide docksites for direct deepwater access to the Pacific Ocean. The Port of Portland has expended more than five million dollars of public funds for planning, construction, and development, and it is estimated that ultimate public and private investment in industrial and port facilities at Rivergate will exceed 500 million dollars. As conceived by its public developers, the Rivergate complex will be served by a domestic transportation network capable of providing efficient and economical service to and from points throughout the Nation. To achieve this goal, the Port's consultants recommended construction by the Port of an internal rail loop that would connect with existing carriers at the southwestern and eastern corners of Rivergate, thus providing Rivergate industries with direct access to all line-haul carriers serving Portland. At full development—estimated to be 15 years in the future—rail traffic generated by these industries is expected to reach between 500 and 600 cars per day, with a projected annual volume of five million tons of freight. At present, eight industries [2] occupy about one-tenth of the Rivergate area. Seven of these are located on the west, or Willamette River, side of Rivergate, and are served by tracks owned by the Port of Portland. Outside rail access to this part of Rivergate is provided by tracks extending from UP's Barnes Yard (point 9 on the schematic map appended to this opinion) and connecting with the Port of Portland tracks. Over these external tracks, jointly owned by UP and Burlington Northern, UP provides switching service to the line-haul carriers serving Portland. It is expected that this Barnes Yard route will remain the southwest entrance to Rivergate. The one other Rivergate industry—the poleyard of the Crown Zellerbach Corporation (Point E on the map)—is located at the easternmost edge of Rivergate, on the Columbia River. Outside rail access is presently provided by Peninsula, which serves, in addition, 13 industries located just southeast of the Rivergate boundary. Peninsula, organized in 1918 to serve a packinghouse facility long since closed, has a main track extending for only 8,000 feet along the Columbia River. At its easternmost end is the North Portland interchange (point 7 on the map), where Peninsula connects with lines owned by Burlington Northern and UP. Since the lines of these two line-haul carriers do not connect directly with Rivergate in this area, access to the eastern end of the Rivergate District is, at present, solely over Peninsula tracks. Whether Peninsula tracks will remain the sole access to the eastern end of Rivergate is by no means certain. Peninsula suffers from certain physical limitations—its tracks are laid upon sand, its clearances are limited, and the main line is impeded by heavy curvature. Furthermore, the North Portland interchange tracks may have insufficient capacity for the expected Rivergate traffic. Accordingly, an alternate access route to the eastern end of Rivergate is under consideration, that is, a new spur leading directly to Rivergate from the Burlington Northern main north-south tracks. [3]",The Rivergate Area and Peninsula's Relation to It
+271,108614,2,2,"All outstanding capital stock of Peninsula is owned by the United Stockyards Corporation. Stockyards R. Co. Control, 254 I. C. C. 207 (1943). United is not itself a carrier and has no interest in continuing to operate a railroad independent of its stockyard operation. It has been willing to sell Peninsula at the appraised value of its capital stock, and it has no preference as to the purchaser. On February 28, 1967, United entered into an agreement to sell Peninsula to SP&S and UP. [4] By joint application filed with the Interstate Commerce Commission on July 25, 1967, SP&S and UP sought approval, under § 5 (2) of the Interstate Commerce Act, [5] of their contracted purchase of Peninsula from United Stockyards. The application pointed out that the acquisition would enable the applicants to provide rail service to the adjacent Rivergate area over the Peninsula tracks. Peninsula, however, would continue to operate as a separate carrier. No major changes in traffic or revenues were anticipated in the immediate future, though it was anticipated that within the foreseeable future substantial new traffic and revenues would be derived from the developing Rivergate area. In response to the above application, Milwaukee and SP filed petitions seeking inclusion in the acquisition of Peninsula as joint and equal owners, pursuant to §§ 5 (2) (b), (c), and (d) of the Act; in addition, they sought the right to use tracks necessary to connect their own lines with Peninsula. The Commission's action on these petitions is the subject of the present appeal. The competing contentions are closely related to the facts of the interconnections between the four line-haul carriers near Rivergate, and to these we now turn.",The Proposed Purchase of Peninsula
+272,108614,2,4,"By petition filed August 23, 1967, Milwaukee sought inclusion in the proposed purchase of Peninsula by Burlington Northern (then SP&S) and UP. Section 5 (2) (d) of the Interstate Commerce Act authorizes the Commission to require such inclusion as a prerequisite to its approval of the purchase upon a finding that such inclusion is consistent with the public interest. After first setting out its impending access to Portland over SP&S lines because of the Northern Lines merger, Milwaukee alleged: The instant transaction, if approved by the Commission without inclusion of Milwaukee upon the terms stated below, would have the effect of foreclosing Milwaukee direct service to all the industries now or in the future to be located on the lines of Peninsula Terminal Company. With fifty per cent of Peninsula Terminal Company stock in the hands of Union Pacific Railroad Company, not a party to the contract referred to above, Milwaukee will not have any right similar to that sought by applicants herein . . . to operate over or obtain trackage rights in the lines of Peninsula Terminal Company. Industries on the lines of Peninsula Terminal Company will thus be denied the single-line service of Milwaukee to such points as [various western and midwestern rail centers served by Milwaukee], contrary to the public interest. [13] App. 165. Accordingly, the Milwaukee sought equal inclusion with SP&S and UP in the purchase of Peninsula and, in addition, asked [t]hat Milwaukee be granted the right to acquire trackage rights over intervening connecting trackage jointly owned by applicants, from SP&S main line to Peninsula Terminal Company's lines upon such reasonable terms and conditions, and for such considerations, as Milwaukee and applicants may negotiate, or, failing such negotiations, upon such terms and conditions and for such consideration as the Commission may find just and reasonable. [14] App. 166. On December 29, 1967, SP&S and the UP filed replies, arguing, inter alia: (1) that even if Condition 24 (a) were implemented, Milwaukee would still not connect with Peninsula because of the intervening North Portland interchange tracks, jointly owned by SP&S, UP, and Peninsula, and trackage rights over these tracks could not be granted to the Milwaukee in this proceeding; and (2) that joint ownership of Peninsula with the Milwaukee could lead to a cumbersome, confused and divided management with resulting policy stalemates and serious deterioration of service. Milwaukee thereupon filed a supplement to its petition for inclusion, stating that in light of the replies of applicants herein to the Milwaukee's petition for inclusion, the Milwaukee alleges that the joint application herein is for the purpose of bottling up the Milwaukee at Portland and impair [ sic ] its ability to provide a competitive service to industries served or to be served by Peninsula Terminal Company contrary to the public interest and the plain intent of the Commission's [report and order in the Northern Lines Merger Case ]. App. 182. Accordingly, the Milwaukee added to its earlier petition by requesting: That applicants be required to grant Milwaukee trackage rights over intervening trackage at North Portland connecting with the yards of Peninsula Terminal Company, both as a condition to participation in ownership of Peninsula Terminal Company and also under Section 3 ( 5 ) of the Interstate Commerce Act.  App. 183. (Emphasis added.) Whether intentionally or not, by requesting trackage rights under § 3 (5), the text of which appears in the margin, [15] Milwaukee divorced the question of access to Peninsula from the question of inclusion in the ownership of Peninsula. Any trackage rights granted in connection with the petition for inclusion under § 5 (2) would be contingent upon SP&S' and UP's deciding to consummate the purchase; trackage rights granted under § 3 (5), however, would be independent of the purchase. In the meantime, by an amended petition filed November 29, 1967, SP joined with the Milwaukee in seeking inclusion under § 5 (2) (d) as an equal owner of Peninsula. It further requested that UP be required to grant petitioner bridge trackage rights over [the Union Pacific] main line and terminal trackage between Peninsula Terminal Company and the Southern Pacific-Union Pacific track connection at East Portland, Ore. [16] App. 168. In response to replies that trackage rights to East Portland could not be granted in a § 5 (2) proceeding, SP, unlike Milwaukee, initiated separate proceedings under § 3 (5) (Dec. 19, 1967). It sought orders requiring SP&S and UP to allow the common use of Peninsula Terminal Company, together with bridge trackage rights over UP lines to East Portland; additionally (or, presumably, alternatively), it sought the common use of the terminal facilities of Union Pacific between Peninsula Terminal Company and . . . East Portland, Oregon. [17]",Milwaukee and Southern Pacific Pleadings Before the Commission
+273,108614,2,5,"The applications, petitions, and replies of the four line-haul carriers were referred to an examiner for hearing upon a consolidated record. The Port of Portland, the Portland Commission of Public Docks, the Public Utility Commissioner of Oregon, and Crown Zellerbach Corporation intervened in favor of Milwaukee and the SP. [18] At the hearings in February and March of 1968, evidence was taken from five shippers in addition to Crown Zellerbach, as well as officers and consultants of the parties and intervenors. On September 9, 1968, nearly a year after the Commission had approved the Northern Lines merger, the hearing examiner issued his report. In the § 5 (2) proceeding, he recommended approval of the purchase of Peninsula by Burlington Northern and UP, on condition (1) that SP be included as an equal owner and (2) that Milwaukee be included as an equal owner upon consummation of the Northern Lines merger and upon Milwaukee's commencing operations into Portland. [19] The examiner further recommended that if the purchase were consummated on the above conditions, SP and Milwaukee be granted the right of access . . . to Peninsula Terminal Company trackage over intervening North Portland interchange tracks, at North Portland, Oreg., presently owned individually or jointly by [Peninsula, SP&S and Northern Pacific, and UP], upon such terms and compensation for use of such intervening trackage mutually agreeable to the interested carriers, or in the event of failure to agree, as the Commission may fix as just and reasonable, to be ascertained in accordance with the provisions of section 3 (5) . . . . App. 128-129. The examiner found that this right of access is practicable and would not substantially impair the ability of the owning carriers to handle their business. [20] App. 129. In the separate § 3 (5) proceedings initiated by SP, the examiner ordered common use by SP of the tracks and facilities of UP for operation between the connection at East Portland and the tracks of Peninsula at North Portland, conditioned, again, upon compensation to be agreed upon by the parties or just and reasonable as fixed by the Commission. In his discussion of the issues, the hearing examiner first announced that he would treat the entire area involved as one transportation terminal entity. On the subject of inclusion in the purchase of Peninsula, he announced: Existing disparity in charges and treatment of traffic within the Portland switching area is convincing evidence that the greatest economic advantage for equality of shippers and carriers can be accomplished best by equal access and ownership. The most economical and functionally modern transportation facilities are essential to development of Rivergate and the Port of Portland. Limitation of direct access there to two railroads barring on-line solicitation and the direct development interests of the other railroads serving the Portland area is contrary to an environment of unencumbered development and the establishment of a sound transportation system. . . . [D]irect access to all the carriers will enable shippers to deal directly with originating carriers providing on-line service to many points in areas not served by the two initial applicants. Shippers would benefit from elimination of switching charges assessed on non-competitive traffic where one of the applicants now acts as a switching carrier. App. 120-121. On the subject of the SP's § 3 (5) applications, the examiner found that the evidence warranted a conclusion that common use by SP of UP trackage between the North Portland interchange and East Portland was in the public interest, practicable, and would not substantially impair UP's ability to handle its own business. He noted the almost incredible 30-hour average transit time required for car movements between Albina Yard and Peninsula, a round-trip distance of about 10.4 miles, including engine changes, car inspection, and car classification at Albina Yard. With respect to the developing Rivergate complex, the examiner was convinced that access thereto by other line-haul carriers will create greater incentive for improvement of railroad facilities and for elimination of present unsatisfactory conditions in the involved area. App. 124. Nor did the examiner think that joint ownership and access by the four line-haul railroads in Peninsula and the proposed trackage rights to SP would curtail competition. To the contrary, shippers in the involved area would be afforded free direct access to all the line-haul carriers' services. Among other things, it would place traffic movements between the Portland area, on the one hand, and, on the other, on-line points of carriers in California and States east thereof, on a more competitive basis with movements between those points over the lines of UP and [Burlington Northern] . . . . Also, Milwaukee would become more competitive with UP and [Burlington Northern] and their connections in providing service to the north and east of Portland. The authorizations, generally, would result in improved competitive service and the fostering of sound transportation in the involved area. App. 125. Finally, the examiner did not grant SP's apparent application, pursuant to § 3 (5), for trackage rights over Peninsula itself. He concluded his discussion with the words: In event the parties elect not to consummate the purchase [of Peninsula] recommended herein further petitions by these carriers requesting access to and operation over trackage of Peninsula pursuant to section 3 (5) of the Act may be filed. Jurisdiction will be retained for that purpose. [21] App. 127.",Proceedings Before the Hearing Examiner
+274,108614,2,6,"Burlington Northern and UP filed exceptions to the hearing examiner's recommendations. They contended, inter alia, (1) that undue emphasis was placed on the future development of Rivergate, (2) that the hearing examiner erroneously held the Portland terminal area to constitute one terminal entity, (3) that the evidence does not support a four-way ownership of Peninsula, either from a general public or a shipper standpoint, (4) that Condition 24 (a) did not grant Milwaukee access to Peninsula, and (5) that neither use of the North Portland interchange tracks by Milwaukee and SP, nor common use by the SP of UP trackage between North Portland and East Portland, was in the public interest. [22] On June 6, 1969, Division 3 of the Interstate Commerce Commission issued its opinion. 334 I. C. C. 419. Though it approved the acquisition of Peninsula by SP&S and UP, it otherwise rejected the hearing examiner's recommendations and denied the petitions and applications filed by Milwaukee and SP. The following conditions were imposed upon the acquisition, to protect the present routings and interchanges of Peninsula: 1. Under the control of SP&S and UP, Peninsula shall maintain and keep open all routes and channels of trade via existing junctions and gateways, unless and until otherwise authorized by the Commission; 2. The present neutrality of handling inbound and outbound traffic to and from Peninsula by SP&S and UP shall be continued so as to permit equal opportunity for service to and from all lines reaching Peninsula through SP&S and UP without discrimination as to routing or movement of traffic, and without discrimination in the arrangements of schedules or otherwise; 3. The present traffic and operating relationships existing between Peninsula, on the one hand, and, all lines reaching Peninsula through the lines of SP&S and UP, on the other, shall be continued insofar as such matters are within the control of SP&S and UP; 4. Peninsula, SP&S and/or UP shall accept, handle, and deliver all cars inbound, loaded and empty, without discrimination in promptness or frequency of service irrespective of destination or route of movement; 5. Peninsula, SP&S and/or UP shall not do anything to restrain or curtail the right of industries, now located on Peninsula, to route traffic over any and all existing routes and gateways; 6. Peninsula, SP&S and/or UP shall refrain from closing any existing route or channel of trade with SP or Milwaukee on account of the [authorized purchase of Peninsula], unless and until authorized by this Commission; 7. Consummation of [the authorized purchase of Peninsula] shall constitute assent by the corporate parents of SP&S, the members of their respective systems, and any carrier resulting from consummation of the Northern Lines case, to be bound by these conditions to the same extent that SP&S is bound by these conditions; and 8. Any party or person having an interest in the subject matter may at any future time make application for such modification of the above-stated conditions, or any of them, as may be required in the public interest, and jurisdiction will be retained to reopen the proceeding on our own motion for the same purpose. 334 I. C. C., at 436-437.",The Decision of the Interstate Commerce Commission
+275,108614,2,1,"As a reading of Part I reveals, there seems to have been a certain amount of confusion below as to whether or not actual operation over the main tracks of Peninsula by any of the four line-haul carriers was at issue in this case. Early in the Commission's discussion of the merits, for example, it said: [W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant's territory. 334 I. C. C., at 433 (emphasis added). Laying aside the substantive policy involved in this statement, we do not see how the italicized words can refer to anything but physical operation over tracks wholly owned by Peninsula. Yet, as we have already seen supra, at 828-829, and n. 20, and 832 n. 21, the hearing examiner did not recommend the granting of such trackage rights to Milwaukee and SP; and neither of these two railroads filed exceptions to the hearing examiner's report requesting such rights. As for Burlington Northern and UP, the third condition which the Commission imposed on their purchase of Peninsula (quoted supra, at 833) seems to acknowledge that Peninsula will continue to operate as a separate railroad, handling all the switching from industries located upon its lines to the North Portland interchange tracks. This matter was not resolved before this Court. The briefs filed by the appellants and by the United States contain many references to direct access by the line-haul carriers to Peninsula and Rivergate, again strongly suggesting physical operation over Peninsula tracks. The Commission argues that physical operation on the part of Burlington Northern and UP is not at issue, because ownership alone—all that these two railroads seek—gives no right to operate over the tracks of the purchased railroad. Brief for Interstate Commerce Commission 23 n. 15; Tr. of Oral Arg. 30. Milwaukee denies that it ever sought to switch cars to Peninsula industries with its own engines and crews, Supplemental Brief for Appellant Milwaukee 34, but no similarly direct statement has been forthcoming from SP. We have set forth but one of the confusions—factual and procedural—that plague this case. Such confusions might have been resolved before the case reached us had the three-judge court that initially reviewed these orders written an opinion.",Direct Access
+276,108614,2,2,"Milwaukee and the United States argued at length before this Court that Condition 24 (a) of the Northern Lines merger by itself requires that Milwaukee be included in the purchase of Peninsula. The Commission considered this point at the very start of its discussion of the merits and stated that Milwaukee's petition for inclusion could not be viewed as part of the general realignment of western railroad competition resulting from the Commission's approval of the Northern Lines merger. Condition No. 24 . . . is applicable only to Northern Lines trackage and territory. The condition is silent with respect to trackage and territory in which other carriers, such as UP, have a joint interest and the effect of the condition upon such joint interest and territory was not presented to, nor considered by, the Commission. Furthermore, . . . the purchase of Peninsula by the joint applicants was not within the contemplation of the Commission at the time condition No. 24 was imposed. . . . Accordingly, we consider the petition of Milwaukee under the same public interest criteria as the petition and applications of SP, rather than as a petition to carry out the provisions of condition No. 24.10 334 I. C. C., at 432. In its footnote 10, however, the Commission said: Upon completion of litigation in the Northern Lines case and consummation of that merger, Milwaukee may wish to seek relief from the Commission in that proceeding to determine the relationship of condition No. 24, if any, to Peninsula's tracks which would at that time be partially owned by the Northern Lines. Ibid. This suggestion that the Commission might consider anew the effect of Condition 24 (a) upon jointly owned tracks leaves us in doubt whether at this point it has made a final determination on the applicability of the condition, or simply a determination that the question should be raised in a different proceeding. We do not find it necessary, however, to resolve this doubt and to rule upon the narrow question whether Condition 24 (a) alone requires that Milwaukee be included in the purchase of Peninsula. No one disputes that the condition had one clear meaning—that Milwaukee would be permitted to run its trains into Portland over Burlington Northern-SP&S tracks. The Commission took this as its starting point and went on to discuss the merits of both Milwaukee's and SP's petitions for inclusion. We find, for the reasons that will appear below, that the Commission took too narrow a view of the public interest and we are in disagreement with its § 5 (2) order. (2) Evaluating the Public Interest As an initial matter, the Commission limited its attention to Peninsula alone, rather than considering the entire Portland area as one transportation terminal entity, as the hearing examiner had. Appellants contend that this very first step was error, but we think it wiser to evaluate the Commission's approach as a whole. A fair summary of the Commission's analysis appears in the last paragraph of its discussion of the petitions for inclusion. There it concludes: The adverse effect on SP&S and UP, and the shippers dependent upon them for service, of admitting SP and Milwaukee into ownership and control of Peninsula, would outweigh any advantage accruing to SP, Milwaukee, and the Rivergate industries of four-railroad ownership. We cannot find, therefore, that inclusion of SP and Milwaukee in the title proceeding would constitute a just and reasonable term, condition, or modification of the authority requested by the joint applicants. 334 I. C. C., at 435. In the preceding paragraphs, the Commission had summarized the evidence presented by the three shippers located in Rivergate that had supported SP's petition and application; it concluded that this evidence failed to establish that benefits would accrue from four-railroad ownership of Peninsula. No mention was made of evidence that tended to establish that shippers dependent upon SP&S and UP would suffer from such ownership. It is apparent, therefore, that the dominant factor in the Commission's analysis, outweighing any advantage accruing to SP and Milwaukee from four-railroad ownership, was the adverse effect on SP&S and UP; we must examine now the manner in which the Commission characterized this adverse effect. First, the Commission said: [W]e find that since neither SP nor Milwaukee now connect with Peninsula, and have never connected with it in the past, their direct service to Peninsula's industries over the objections of SP&S and UP would constitute a new operation and an invasion of the joint applicant[s'] territory. Id., at 433. We have already observed that this passage suggests direct physical operation over the main track of Peninsula, a matter that appears not to be directly at issue in this case. But it may also refer to the trackage rights sought by Milwaukee and SP, as a condition to the purchase, which would permit them to connect directly with Peninsula, so the Commission's further treatment of this point is relevant: In the past, the Commission has usually held that sound economic conditions in the transportation industry require that a railroad now serving a particular territory should normally be accorded the right to transport all traffic therein which it can handle adequately, efficiently, and economically, before a new operation should be authorized. This conclusion is applicable not only with respect to existing traffic but also with respect to potential traffic . . . . See Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 [1958], and cases cited therein. Ibid. This passage appears to announce the principle that in considering petitions for inclusion in proposed purchases or mergers under § 5 (2), with accompanying trackage rights, the dominant policy is preservation of the market shares of the railroads already serving the location in question, so long as those railroads provide reasonably adequate switching service to other carriers in the area. Whatever doubts we might have, either as to the principle itself or its application to this case, are removed by the critical paragraph that immediately follows the sentences just quoted: As shown in the appendix, SP shared, through connections and use of joint rates and routes, in only about 20 percent of Peninsula's traffic during 1966, and only about 17 percent during 1967. Milwaukee's share, also via connections and joint rates and routes, amounted to only 1 percent during those years. Permitting SP and Milwaukee to acquire access to, and equal ownership of, Peninsula and therefore participate in its existing traffic on a direct haul basis will, of course, allow those two railroads to increase their share of Peninsula's declining traffic (3,640 loaded cars handled in 1966 and 2,748 handled in 1967). These increased shares of SP and Milwaukee could only be at the expense of the joint applicants and the railway employees whose jobs would be eliminated by the direct service planned by SP and Milwaukee. Ibid. This discussion strikes us as initially misdirected because it ignores the prospective presence of Milwaukee in this area. In 1966 and 1967, Milwaukee trains were still running no closer to Portland than Longview, Washington, 46 miles away. All through the Commission proceedings, however, it was assumed by all concerned that pursuant to Condition 24 (a) of the Northern Lines merger, Milwaukee would soon be operating directly into Portland over Burlington Northern tracks, as it is today. Granted that Milwaukee had only 1% of Peninsula's traffic in 1966 and 1967, the Commission pointed to no evidence that the Milwaukee share would continue to be this small after affirmance of the Northern Lines merger. The next difficulty with the Commission's approach relates to the potential growth of Peninsula traffic. The raison d'être of this litigation has been the possibility that Peninsula would become the northern access to Rivergate. As we have already noted, this possibility may be remote, given the physical limitations of Peninsula's present facilities. But the Commission nowhere states that the possibility is too speculative to be considered in this litigation. The paragraph we have just quoted, then, reads strangely indeed; for if Peninsula becomes the northern route into Rivergate, the estimates we have been given indicate that daily traffic over its line would increase from the 1967 rate of 30 cars per day to over 300 cars per day, assuming that a roughly equal number of cars go out over each of the northern and southern routes from Rivergate. Yet according to the principle announced by the Commission, the public interest requires that Burlington Northern's and UP's 80% share of this potentially enormous traffic be protected. Such an approach seems to us to fly in the face of the well-settled principle that the Commission is obligated to consider the anticompetitive effects of any § 5 (2) transaction. McLean Trucking Co. v. United States, 321 U. S. 67, 83-87 (1944); Northern Lines Merger Cases, 396 U. S. 491, 511-516 (1970). It is not necessary to invoke the precise terms of Condition 24 (a) and decide their applicability to this case, to take cognizance of the fact that prior to the Northern Lines merger, Milwaukee was a weak carrier in the Northern Tier of States. Northern Lines Merger Cases, 396 U. S., at 504, 514-516. Condition 24 (a) was not intended to foreclose consideration of Milwaukee's competitive position vis-à-vis Burlington Northern in any other proceeding. Both Milwaukee and SP were entitled to explicit consideration of their economic positions as compared with that of Burlington Northern and UP or, at least, a clear statement why such an inquiry was not appropriate. Even the one case cited by the Commission in support of its general principle, Minneapolis, St. P. & S. S. M. R. Co. Acquisition, 295 I. C. C. 787, 802 (1958), undercuts the Commission's reasoning. There, the Commission denied applications of other lines for permission to acquire tracks and to undertake new construction in territory traditionally served by the Chicago & North Western Railway Co.; the latter's economic vulnerability made preservation of its exclusive territory important to the public interest. There is no indication in the present case that Burlington Northern and UP are economically vulnerable, or that they in any way need their present share of Peninsula traffic to serve the public interest. We are confronted with two railroads that already control one actual route into Rivergate (via Barnes Yard) and one potential route (any spur leading off the Burlington Northern-SP&S main-line tracks), and that now seek to acquire, for themselves alone, the one remaining route. The Commission's entire discussion of the anticompetitive aspects of this acquisition can be summed up as follows: to the extent that SP and Milwaukee may gain by four-railroad ownership of Peninsula, Burlington Northern and UP will lose; therefore the petitions for inclusion are denied. We do not approve this approach to the case. Despite what we have said about the Commission's apparent reasoning, it does not necessarily follow that the result it reached was incorrect. Given the uncertainty about the northern access to Rivergate, and given the apparent fact that physical operation over Peninsula and into Rivergate was not at issue, approval of the purchase by Burlington Northern and UP alone, with the eight attached conditions, may be the result most in the public interest at the present time. We note that the Commission retained jurisdiction over the proceedings. But it is not the role of this Court to arrive at its own determination of the public interest on the facts of this case. Our appellate function in administrative cases is limited to considering whether the announced grounds for the agency decision comport with the applicable legal principles. SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943). In this proceeding—where the record is already confused by ambiguities over what was thought to be at issue—we cannot say that the grounds for the agency decision are consistent with the public interest standard found in the Interstate Commerce Act. We must reverse and remand for further proceedings.",The Petitions for Inclusion .(1) Condition 24 (a)
+277,106627,1,2,"A. Diversions above Lake Mead. —The Secretary's contracts with Arizona and Nevada provide that any waters diverted by those States out of the mainstream or the tributaries above Lake Mead must be charged to their respective Lower Basin apportionments. The Master, however, took the view that the apportionment was to be made out of the waters actually stored at Lake Mead or flowing in the mainstream below Lake Mead. He therefore held that the Secretary was without power to charge Arizona and Nevada for diversions made by them from the 275-mile stretch of river between Lee Ferry and Lake Mead [95] or from the tributaries above Lake Mead. This conclusion was based on the Master's reasoning that the Secretary was given physical control over the waters stored in Lake Mead and not over waters before they reached the lake. We hold that the Master was correct in deciding that the Secretary cannot reduce water deliveries to Arizona and Nevada by the amount of their uses from tributaries above Lake Mead, for, as we have held, Congress in the Project Act intended to apportion only the mainstream, leaving to each State its own tributaries. We disagree, however, with the Master's holding that the Secretary is powerless to charge States for diversions from the mainstream above Lake Mead. What Congress was doing in the Project Act was providing for an apportionment among the Lower Basin States of the water allocated to that basin by the Colorado River Compact. The Lower Basin, with which Congress was dealing, begins at Lee Ferry, and it was all the water in the mainstream below Lee Ferry that Congress intended to divide among the States. Were we to refuse the Secretary the power to charge States for diversions from the mainstream between Lee Ferry and the damsite, we would allow individual States, by making diversions that deplete the Lower Basin's allocation, to upset the whole plan of apportionment arrived at by Congress to settle the long-standing dispute in the Lower Basin. That the congressional apportionment scheme would be upset can easily be demonstrated. California, for example, has been allotted 4,400,000 acre-feet of mainstream water. If Arizona and Nevada can, without being charged for it, divert water from the river above Lake Mead, then California could not get the share Congress intended her to have. B. Nevada Contract. —Nevada has excepted to her inclusion in Paragraph II (B) (7) of the Master's recommended decree, which provides that mainstream water shall be delivered to users in Arizona, California and Nevada only if contracts have been made by the Secretary of the Interior, pursuant to Section 5 of the Boulder Canyon Project Act, for delivery of such water. While the California contracts are directly with water users and the Arizona contract specifically contemplates further subcontracts with actual users, it is argued that the Nevada contract, made by the Secretary directly with the State of Nevada through her Colorado River Commission, should be construed as a contract to deliver water to the State without the necessity of subcontracts by the Secretary directly with Nevada water users. The United States disagrees, contending that properly construed the Nevada contract, like the Secretary's general contract with Arizona, does not exhaust the Secretary's power to require Nevada water users other than the State to make further contracts. To construe the Nevada contract otherwise, the Government suggests, would bring it in conflict with the provision of § 5 of the Project Act that No person shall have or be entitled to have the use for any purpose of the water stored as aforesaid except by contract [with the Secretary] made as herein stated. Acceptance of Nevada's contention here would not only undermine this plain congressional requirement that water users have contracts with the Secretary but would likewise transfer from the Secretary to Nevada a large part, if not all, of the Secretary's power to determine with whom he will contract and on what terms. We have already held that the contractual power granted the Secretary cannot be diluted in this manner. We therefore reject Nevada's contention.",provisions in the secretary's contracts.
+278,106627,1,3,"We have agreed with the Master that the Secretary's contracts with Arizona for 2,800,000 acre-feet of water and with Nevada for 300,000, together with the limitation of California to 4,400,000 acre-feet, effect a valid apportionment of the first 7,500,000 acre-feet of mainstream water in the Lower Basin. There remains the question of what shall be done in time of shortage. The Master, while declining to make any findings as to what future supply might be expected, nevertheless decided that the Project Act and the Secretary's contracts require the Secretary in case of shortage to divide the burden among the three States in this proportion: California 4.4/7.5; Arizona 2.8/7.5; Nevada .3/7.5. While pro rata sharing of water shortages seems equitable on its face, [96] more considered judgment may demonstrate quite the contrary. Certainly we should not bind the Secretary to this formula. We have held that the Secretary is vested with considerable control over the apportionment of Colorado River waters. And neither the Project Act nor the water contracts require the use of any particular formula for apportioning shortages. While the Secretary must follow the standards set out in the Act, he nevertheless is free to choose among the recognized methods of apportionment or to devise reasonable methods of his own. This choice, as we see it, is primarily his, not the Master's or even ours. And the Secretary may or may not conclude that a pro rata division is the best solution. It must be remembered that the Secretary's decision may have an effect not only on irrigation uses but also on other important functions for which Congress brought this great project into being—flood control, improvement of navigation, regulation of flow, and generation and distribution of electric power. Requiring the Secretary to prorate shortages would strip him of the very power of choice which we think Congress, for reasons satisfactory to it, vested in him and which we should not impair or take away from him. For the same reasons we cannot accept California's contention that in case of shortage each State's share of water should be determined by the judicial doctrine of equitable apportionment or by the law of prior appropriation. These principles, while they may provide some guidance, are not binding upon the Secretary where, as here, Congress, with full power to do so, has provided that the waters of a navigable stream shall be harnessed, conserved, stored, and distributed through a government agency under a statutory scheme. None of this is to say that in case of shortage, the Secretary cannot adopt a method of proration or that he may not lay stress upon priority of use, local laws and customs, or any other factors that might be helpful in reaching an informed judgment in harmony with the Act, the best interests of the Basin States, and the welfare of the Nation. It will be time enough for the courts to intervene when and if the Secretary, in making apportionments or contracts, deviates from the standards Congress has set for him to follow, including his obligation to respect present perfected rights as of the date the Act was passed. At this time the Secretary has made no decision at all based on an actual or anticipated shortage of water, and so there is no action of his in this respect for us to review. Finally, as the Master pointed out, Congress still has broad powers over this navigable international stream. Congress can undoubtedly reduce or enlarge the Secretary's power if it wishes. Unless and until it does, we leave in the hands of the Secretary, where Congress placed it, full power to control, manage, and operate the Government's Colorado River works and to make contracts for the sale and delivery of water on such terms as are not prohibited by the Project Act.",apportionment and contracts in time of shortage.
+279,106627,1,4,"Arizona and New Mexico presented the Master with conflicting claims to water in the Gila River, the tributary that rises in New Mexico and flows through Arizona. Having determined that tributaries are not within the regulatory provisions of the Project Act the Master held that this interstate dispute should be decided under the principles of equitable apportionment. After hearing evidence on this issue, the Master accepted a compromise settlement agreed upon by these States and incorporated that settlement in his findings and conclusions, and in Part IV (A) (B) (C) (D) of his recommended decree. No exceptions have been filed to these recommendations by any of the parties and they are accordingly accepted by us. Except for those discussed in Part V, we are not required to decide any other disputes between tributary users or between mainstream and tributary users.",arizona-new mexico gila controversy.
+280,106627,1,5,"In these proceedings, the United States has asserted claims to waters in the main river and in some of the tributaries for use on Indian Reservations, National Forests, Recreational and Wildlife Areas and other government lands and works. While the Master passed upon some of these claims, he declined to reach others, particularly those relating to tributaries. We approve his decision as to which claims required adjudication, and likewise we approve the decree he recommended for the government claims he did decide. We shall discuss only the claims of the United States on behalf of the Indian Reservations. The Government, on behalf of five Indian Reservations in Arizona, California, and Nevada, asserted rights to water in the mainstream of the Colorado River. [97] The Colorado River Reservation, located partly in Arizona and partly in California, is the largest. It was originally created by an Act of Congress in 1865, [98] but its area was later increased by Executive Order. [99] Other reservations were created by Executive Orders and amendments to them, ranging in dates from 1870 to 1907. [100] The Master found both as a matter of fact and law that when the United States created these reservations or added to them, it reserved not only land but also the use of enough water from the Colorado to irrigate the irrigable portions of the reserved lands. The aggregate quantity of water which the Master held was reserved for all the reservations is about 1,000,000 acre-feet, to be used on around 135,000 irrigable acres of land. Here, as before the Master, Arizona argues that the United States had no power to make a reservation of navigable waters after Arizona became a State; that navigable waters could not be reserved by Executive Orders; that the United States did not intend to reserve water for the Indian Reservations; that the amount of water reserved should be measured by the reasonably foreseeable needs of the Indians living on the reservation rather than by the number of irrigable acres; and, finally, that the judicial doctrine of equitable apportionment should be used to divide the water between the Indians and the other people in the State of Arizona. The last argument is easily answered. The doctrine of equitable apportionment is a method of resolving water disputes between States. It was created by this Court in the exercise of its original jurisdiction over controversies in which States are parties. An Indian Reservation is not a State. And while Congress has sometimes left Indian Reservations considerable power to manage their own affairs, we are not convinced by Arizona's argument that each reservation is so much like a State that its rights to water should be determined by the doctrine of equitable apportionment. Moreover, even were we to treat an Indian Reservation like a State, equitable apportionment would still not control since, under our view, the Indian claims here are governed by the statutes and Executive Orders creating the reservations. Arizona's contention that the Federal Government had no power, after Arizona became a State, to reserve waters for the use and benefit of federally reserved lands rests largely upon statements in Pollard's Lessee v. Hagan, 3 How. 212 (1845), and Shively v. Bowlby, 152 U. S. 1 (1894). Those cases and others that followed them [101] gave rise to the doctrine that lands underlying navigable waters within territory acquired by the Government are held in trust for future States and that title to such lands is automatically vested in the States upon admission to the Union. But those cases involved only the shores of and lands beneath navigable waters. They do not determine the problem before us and cannot be accepted as limiting the broad powers of the United States to regulate navigable waters under the Commerce Clause and to regulate government lands under Art. IV, § 3, of the Constitution. We have no doubt about the power of the United States under these clauses to reserve water rights for its reservations and its property. Arizona also argues that, in any event, water rights cannot be reserved by Executive Order. Some of the reservations of Indian lands here involved were made almost 100 years ago, and all of them were made over 45 years ago. In our view, these reservations, like those created directly by Congress, were not limited to land, but included waters as well. Congress and the Executive have ever since recognized these as Indian Reservations. Numerous appropriations, including appropriations for irrigation projects, have been made by Congress. They have been uniformly and universally treated as reservations by map makers, surveyors, and the public. We can give but short shrift at this late date to the argument that the reservations either of land or water are invalid because they were originally set apart by the Executive. [102] Arizona also challenges the Master's holding as to the Indian Reservations on two other grounds: first, that there is a lack of evidence showing that the United States in establishing the reservations intended to reserve water for them; second, that even if water was meant to be reserved the Master has awarded too much water. We reject both of these contentions. Most of the land in these reservations is and always has been arid. If the water necessary to sustain life is to be had, it must come from the Colorado River or its tributaries. It can be said without overstatement that when the Indians were put on these reservations they were not considered to be located in the most desirable area of the Nation. It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind—hot, scorching sands—and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised. In the debate leading to approval of the first congressional appropriation for irrigation of the Colorado River Indian Reservation, the delegate from the Territory of Arizona made this statement: Irrigating canals are essential to the prosperity of these Indians. Without water there can be no production, no life; and all they ask of you is to give them a few agricultural implements to enable them to dig an irrigating canal by which their lands may be watered and their fields irrigated, so that they may enjoy the means of existence. You must provide these Indians with the means of subsistence or they will take by robbery from those who have. During the last year I have seen a number of these Indians starved to death for want of food. Cong. Globe, 38th Cong., 2d Sess. 1321 (1865). The question of the Government's implied reservation of water rights upon the creation of an Indian Reservation was before this Court in Winters v. United States, 207 U. S. 564, decided in 1908. Much the same argument made to us was made in Winters to persuade the Court to hold that Congress had created an Indian Reservation without intending to reserve waters necessary to make the reservation livable. The Court rejected all of the arguments. As to whether water was intended to be reserved, the Court said, at p. 576: The lands were arid and, without irrigation, were practically valueless. And yet, it is contended, the means of irrigation were deliberately given up by the Indians and deliberately accepted by the Government. The lands ceded were, it is true, also arid; and some argument may be urged, and is urged, that with their cession there was the cession of the waters, without which they would be valueless, and `civilized communities could not be established thereon.' And this, it is further contended, the Indians knew, and yet made no reservation of the waters. We realize that there is a conflict of implications, but that which makes for the retention of the waters is of greater force than that which makes for their cession. The Court in Winters concluded that the Government, when it created that Indian Reservation, intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless. Winters has been followed by this Court as recently as 1939 in United States v. Powers, 305 U. S. 527. We follow it now and agree that the United States did reserve the water rights for the Indians effective as of the time the Indian Reservations were created. This means, as the Master held, that these water rights, having vested before the Act became effective on June 25, 1929, are present perfected rights and as such are entitled to priority under the Act. We also agree with the Master's conclusion as to the quantity of water intended to be reserved. He found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations. Arizona, on the other hand, contends that the quantity of water reserved should be measured by the Indians' reasonably foreseeable needs, which, in fact, means by the number of Indians. How many Indians there will be and what their future needs will be can only be guessed. We have concluded, as did the Master, that the only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage. The various acreages of irrigable land which the Master found to be on the different reservations we find to be reasonable. We disagree with the Master's decision to determine the disputed boundaries of the Colorado River Indian Reservation and the Fort Mohave Indian Reservation. We hold that it is unnecessary to resolve those disputes here. Should a dispute over title arise because of some future refusal by the Secretary to deliver water to either area, the dispute can be settled at that time. The Master ruled that the principle underlying the reservation of water rights for Indian Reservations was equally applicable to other federal establishments such as National Recreation Areas and National Forests. We agree with the conclusions of the Master that the United States intended to reserve water sufficient for the future requirements of the Lake Mead National Recreation Area, the Havasu Lake National Wildlife Refuge, the Imperial National Wildlife Refuge and the Gila National Forest. We reject the claim of the United States that it is entitled to the use, without charge against its consumption, of any waters that would have been wasted but for salvage by the Government on its wildlife preserves. Whatever the intrinsic merits of this claim, it is inconsistent with the Act's command that consumptive use shall be measured by diversions less returns to the river. Finally, we note our agreement with the Master that all uses of mainstream water within a State are to be charged against that State's apportionment, which of course includes uses by the United States.",claims of the united states.
+281,106627,1,2,"Judicial apportionment of interstate waters was established long before the Project Act as an effective means of resolving interstate water disputes. Kansas v. Colorado, 206 U. S. 46. Its acceptability had never been questioned. Priority of appropriation, the basic determinant of judicial apportionment as enunciated in Wyoming v. Colorado, 259 U. S. 419, was the law in six of the Colorado Basin States, [4] and senior appropriations were respected in the seventh. [5] The law of appropriation, which rests on the basic principle that a water right depends on beneficial use and which gives priority of right to the appropriator first in time, had been repeatedly declared to be indispensable to the development of the arid lands of the West. [6] This backdrop of firm dedication to the principles of appropriation and of judicial apportionment is critical to an understanding of congressional purpose with respect to the Project Act. It is also critical to recognize that congressional compromise with these deeply respected principles was only partial; the problems facing Congress as a result of Wyoming v. Colorado were narrow. No Senator or Representative ever suggested that judicial apportionment was generally inappropriate; no Senator or Representative ever inveighed against the law of appropriation as such. The first problem was simply this: Interstate application of the doctrine of priority, unlimited by equitable considerations, threatened to deprive the four Upper Basin States of their fair share of the Colorado River because they were not so quick as California in development. The purpose of the Compact was simply to limit traditional doctrines to the extent necessary to avoid this extreme and harsh result, and to eliminate long and costly litigation. It was perfectly plain that the Colorado River Compact merely guaranteed to the upper States a specified quantity of water immune from priorities below, subject to stated delivery requirements; it did nothing whatever to interfere with the law of priorities or the principles of equitable apportionment among the States of the Lower Basin. [7] It was precisely because it did not that Arizona refused to approve either the Project Act or the Compact until something was done to safeguard her share of Lower Basin water. [8] Similarly, the upper States feared that in the absence of ratification by Arizona, California would be free to appropriate all the Lower Basin's share under the Compact, and Arizona, not limited by that document, would be free to appropriate, as against the upper States, water the Compact sought to apportion to the Upper Basin. [9] The remaining problem, therefore, was that California's acquisition of priorities as against Arizona and the upper States had to be further limited. A ceiling had to be put on her interstate appropriative priorities. Solution of this narrow problem likewise did not require complete abrogation of the principles of priority and interstate judicial apportionment. Still another, and profoundly significant, factor in understanding the effect of the Project Act on the law of appropriation and judicial apportionment is the pervasive hostility that many westerners had to any form of federal control of water rights. Colorado's Delph Carpenter, who was as much responsible as any man for both the Compact and the contract requirement of § 5 of the Project Act, testified in 1925 to what he termed an insidious and calculated policy of the National Government, fostered particularly by the Departments of Interior and Justice, to encroach upon state prerogatives and supersede state authority with respect to the distribution of water. He made it clear, as did Wyoming's Senator Kendrick, that he deemed this policy oppressive, destructive, and deplorable. [10] Utah's Senator King made the same objection on the floor of the Senate. 69 Cong. Rec. 10262. When it was suggested that Congress might legislate to meet the problem of California's threatened preemption of the river, a storm of doubt arose as to its constitutional power to do so. Upper Basin and Arizona spokesmen—those who were to be benefited by limiting appropriations—repeatedly insisted that the only constitutional ways of apportioning the river were by suit in this Court or by interstate compact. [11] And Senator Bratton of New Mexico, hardly an opponent of the Project Act, objected that by merely suggesting in § 4 (a) the terms of a compact which the States were free to modify or to reject, Congress was infringing upon state sovereignty. 70 Cong. Rec. 470-471. Congress' entire approach to the problems of prior appropriation was governed by this deep-seated hostility to federal dictation of water rights. When plans for development of the Lower Basin threatened the rights of the upper States, they did not seek the simple (and in my view constitutionally unobjectionable) solution of a legislative apportionment. They employed instead the cumbersome method of interstate compact, which required authorization by Congress and by seven state legislatures prior to negotiation and ratification by the same eight bodies thereafter. When it began to appear that Arizona would not ratify the Compact, Congress still did not legislate a general apportionment. It built the statute around the provisions of the Compact, insisting on ratification by as many States as possible, even at the cost of further delaying the already overdue Project Act. It simply conditioned the use of government property and of water stored behind the dam on compliance with the Compact. Attempts to divide the Lower Basin water by interstate agreement continued through the Denver Conference called by the Upper Basin Governors in the summer of 1927—nearly five years after negotiation of the Compact. Yet it was not until 1927 that an amendment was first offered to protect Arizona by a statutory limitation on California's consumption, and it was not until 1928 that the proposal was adopted into the bill. [12] Finally, when Congress ultimately resigned itself to the necessity of legislating in some way with respect to the division of Lower Basin waters, it used narrow words suitable to its narrow purpose and to its regard both for the system of judicial apportionment and appropriation and for the rights of the States. Even then Congress did not attempt to legislate an apportionment of Lower Basin water; it simply prescribed a ceiling for California. In the words of Senator Johnson, We write, then, that California shall use perpetually only a specific amount of water, naming the maximum amount which may be used. 69 Cong. Rec. 7250. Even this, Congress was unwilling to do directly. As reported from committee, the bill contained a provision directing the Secretary of the Interior to limit California's consumption in the exercise of his power of contract. [13] But this was replaced by the present provision, which reached the same result not via the Secretary's contract authority but by the awkward device of requiring California's legislature to consent to the limitation as a condition precedent to the effectiveness of the Project Act. And this was not all; to end the tale Congress added to § 4 (a) specific authorization to Arizona, California, and Nevada to enter into an agreement to complete the division of the Lower Basin water—the same cumbersome substitute for direct congressional apportionment that had been abortively mooted for six years. This history bears recapitulation. First, the law of appropriation, basic to western water law, was greatly respected, and the solution of interstate water disputes by judicial apportionment in this Court was well established and accepted. Second, the problems created by these doctrines as applied in Wyoming v. Colorado were narrow ones, not requiring for their solution complete abrogation of well-tried principles; existing law was quite adequate to deal with all questions save those Congress expressly solved by imposing a ceiling on California. Third, Congress throughout the dispute exhibited great reluctance to interfere with the division of water by legislation, because of a deep and fundamental mistrust of federal intervention and a profound regard for state sovereignty, shared by many influential members. Finally, when Congress was forced to legislate with respect to this problem or face defeat of the entire Project Act, it chose narrow terms appropriate to the narrow problem before it, and even then acted only indirectly to require California's consent to limiting her consumption. It is inconceivable that such a Congress intended that the sweeping federal power which it declined to exercise —a power even the most avid partisans of national authority might hesitate to grant to a single administrator —be exercised at the unbridled discretion of an administrative officer, especially in the light of complaints registered about bureaucratic and oppressive interference of the Department which that very officer headed. [14] It is utterly incredible that a Congress unwilling because of concern for States' rights even to limit California's maximum consumption to 4,400,000 acre-feet without the consent of her legislature intended to give the Secretary of the Interior authority without California's consent to reduce her share even below that quantity in a shortage.",the background of the boulder canyon project act.
+282,106627,1,4,"Nothing in the Project Act expressly gives the Secretary power to ignore appropriations so long as financial conditions are met and the Compact and limitations are observed. Senators Hayden and Pittman, as the Court notes, did indicate that § 4 (a) provided for an apportionment of the water, although even they did not suggest that § 4 (a) gave any authority to the Secretary to make an apportionment by his contracts or to allocate the burdens in time of shortage. But in any event, as already noted, pp. 606-607, supra, § 4 does not by its terms make an apportionment; rather it simply requires six-state ratification of the Compact and an agreement by California to limit her share as conditions on the effectiveness of the Act, and authorizes an apportionment by the States themselves. In the words of Senator Johnson, the provision . . . does not divide the water between Arizona and California. It fixes a maximum amount beyond which California can not go. 70 Cong. Rec. 385. Nor does § 6, which requires that the dam be operated for the satisfaction of present perfected rights among other purposes, indicate by negative implication that the Secretary may ignore all other appropriations. This provision was drafted by the Upper Basin States in order to insure that the condition of the Compact had been met to relieve them from the claims of perfected users below. [29] That condition was the construction of an adequate storage reservoir against which those claims could be asserted; the Compact has nothing to do with whether rights perfected under state law since 1929 may be ignored by the Secretary in awarding contracts. Section 8 (b), which subjects the United States and all users of the Project to any compact allocating among the Lower Basin States the benefits, including power, arising from the use of water accruing to said States, and which subjects such an agreement, if made after January 1, 1929, to any delivery contracts made prior to its approval, is similarly no authority for the Court's conclusion. Legislative history is virtually silent as to the reason for giving such contracts precedence, but the provision seems simply to have been intended to promote the entering of contracts by insuring their permanence in accordance with the requirement of § 5. [30] There is no indication in § 8 (b) whether or not the Secretary is free in awarding contracts to ignore existing appropriations; it merely evidences a policy that rights so perfected as to have been reduced to a contract for delivery at a consideration, whatever the basis on which they should be awarded, ought not to be destroyed by a subsequent interstate agreement. If the statute were completely silent as to whether the Secretary may disregard appropriations, the normal inference would be that Congress did not mean to displace existing law. Enough has been said of the statute's history to buttress this inference beyond question. Moreover, the statute is by no means silent on this matter. The references in § 8 (a) and (b) to appropriators of water stored or delivered by the Project, and in § 4 (a) to the taking of steps to initiate or perfect any claims to the use of water made available by the dam, are only the least evidence. [31] Section 14 provides that the Reclamation Act shall govern the operation of Hoover Dam except as the Project Act otherwise provides. Section 8 of the Reclamation Act, 32 Stat. 390, 43 U. S. C. § 383, directs the Secretary of the Interior in carrying out his duties under the Act to proceed in accordance with state and territorial laws and declares that nothing in the federal act shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof. Both Representative Swing and Senator Johnson emphasized that this provision was deliberately incorporated into the Project Act to safeguard from federal destruction the rights of the States to their shares of the water. [32] This Court made clear in Wyoming v. Colorado, 259 U. S. 419, 463, that by thus protecting the rights of any State in an interstate stream Congress intended to leave untouched the law of interstate equitable apportionment. Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 291, despite its dictum that § 8 applies only to the acquisition of rights by the United States and not to its operation of a dam, holds only that the clear command of § 5 of the Reclamation Act, 32 Stat. 389, 43 U. S. C. § 431—that water deliveries to each user not exceed the quantity required for 160 acres—prevails over state law, not that state law does not generally govern priorities in the use of water from federal reclamation projects under § 8. [33] The Court in Ivanhoe expressly stated that it was reaching its narrow conclusion: [w]ithout passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field . . . . 357 U. S., at 292. This general question, with reference to what is undoubtedly the most important single water project in the United States, is precisely the question before us today. In view of the language of the Project Act, as well as its background and legislative history, there can, I think, be no doubt of the answer.",the bearing of other provisions of the project act.
+283,105149,1,1,"The main office of Reader's Digest is thirty-one miles from New York City, in the relatively rural area of northern Westchester County, near the town of Pleasantville. From this secluded headquarters a truck several times each day makes a run to and from town. On April 3, 1950, William Waterbury was driver of the 2:50 p. m. trip into Pleasantville. He picked up Andrew Petrini, a fellow employee, and various bags containing mail, about $5,000 in cash, and about $35,000 in checks, and started down the lonely country roads to town. Neither was armed. After a few hundred yards, Waterbury was cut off and halted by another truck that had been meandering slowly in front of him. He observed a man wearing a false nose and eyeglasses and with a revolver in his hand running toward him. After an unsuccessful attempt to open the door, the assailant fired one shot into Petrini's head. Waterbury was then ordered into the back of the truck where another man tied him up. His captors took the bag containing the money and checks and abandoned the truck on a side road with Waterbury bound and gagged therein. A few minutes later he was released by a passer-by and had Petrini hurried to the hospital where he died shortly from the effects of a .38 revolver bullet lodged in his skull. Near the scene of the crime police found the abandoned truck used by the killers to block the way of Waterbury. It was learned to be the property of Spring Auto Rental Co., on New York's lower East Side and at the time of the murder to have been out on hire to a man who had rented the same truck on three prior occasions and who each time had identified himself by producing New York driver's license No. 1434549, issued to W. W. Comins, of 228 West 47th Street, New York City. The address turned out to be a hotel and the name fictitious. However, the police managed to establish that the license had been procured by one William Cooper. It is more than a figure of speech to say that William Cooper had an ironclad alibi: at the time of this crime he was serving a sentence in a federal penitentiary. Suspicion attached to members of his family. Nearly two months ran on with no solution of the crime, however, until toward the end of May or the beginning of June, when police learned that William's brother, petitioner Calman Cooper, had served a sentence in federal prison where he was a working partner and chess-playing buddy of one Brassett, who was serving time for having rifled mails addressed to the Reader's Digest while working in Pleasantville. It appeared that during their prison association Brassett had told Calman Cooper of the opportunity awaiting at Reader's Digest for an enterprising and clever robber. On June 5, 1950, police arranged for Arthur Jeppeson, who had rented the Spring truck to W. W. Comins, to be on a street in New York City where they expected Calman Cooper to pass. Jeppeson testified on the trial that Cooper recognized him and said to him that this truck that he rented from me was in a killing upstate and he had nothing to do with it . . . . Jeppeson testified that he then asked Cooper two questions: Why the hell didn't you report it to the police? and . . . why did he give me that license . . . .? Cooper's reply was stated to be, That is the license they give him to give me. Jeppeson further testified that Cooper had inquired if the officers had shown him any pictures and asked him not to identify Cooper to the police. At the end of this conversation, on Jeppeson's signal, two policemen closed in and arrested Cooper. That night (2 a. m., June 6) petitioner Stein was arrested. On June 7, about 9 a. m., petitioner Wissner was arrested. The three petitioners were arraigned and charged with murder on the evening of June 8. A fourth suspect, Dorfman, was sought but remained at large until he voluntarily surrendered on June 19, 1950. All four were indicted for murder. When the time came for trial, the case against Dorfman, who turned state's evidence, was severed. A motion for separate trial by petitioner Wissner was denied, and trial proceeded against the three remaining defendants. Other than two alibi witnesses offered by Wissner and a halfhearted attempt by Cooper to establish insanity, the defense consisted almost entirely of attempts to break down the prosecution's case. None of the defendants testified. The confessions constituted only a part of the evidence submitted to the jury. We can learn the context in which the confessions were obtained by the police and received in evidence only from a summary of the whole testimony. Waterbury, who was in the truck with the murdered Petrini, identified Wissner as the man who fired the shot and Stein as the man who tied him up. [4] He testified that on the 8th of June the police brought him to Hawthorne Barracks and that, upon entering a room in which Stein was present, defendant Stein pointed out Waterbury as the driver of the truck. [5] On cross-examination, he recounted that he had picked Wissner out of a lineup at Hawthorne Barracks on June 8 and identified him as the killer. [6] Jeppeson testified that the rental truck had been let to Cooper on April 3 and on three previous occasions, Cooper having in each case used an alias and a false license as before stated, and having given his occupation as bookseller. He also testified as to his conversation with Cooper on the morning of the latter's arrest. Dorfman, in substance, testified that he and Wissner were partners in an auto rental business on the lower East Side of New York City. Cooper and Stein had approached them about six weeks before April 3 with the suggestion that they collaborate on a robbery at the Reader's Digest. The truck used in the killing had been rented by Cooper on April 3 and on three previous occasions when the conspirators had driven to Pleasantville to case the area and determine whether conditions were favorable for success in the crime. At these times, and one other, they also brought to Pleasantville an auto owned by the Dorfman-Wissner agency. On April 3, the four set out for Pleasantville with the truck, the car, and a tan valise containing three guns owned by Wissner. They left the car about a mile from the Reader's Digest and all got in the rented truck. The guns were distributed, Dorfman getting a black automatic and Wissner a nickel-plated revolver. The holdup proceeded in the manner described by Waterbury. Dorfman heard a shot during the holdup, but did not see who fired it. On the way back, however, Wissner expressed regret at the necessity of shooting the guard. The defendants threw away their guns, left the Reader's Digest truck, with Waterbury tied up inside, on a side road and left the rental truck at the place where the car had been parked during the commission of the crime. They drove back toward New York in the car. When they got to the Bronx, they parked the car and went on by subway and taxicab to Dorfman's apartment in Brooklyn, where they divided up the proceeds and separated. Subsequently, Dorfman and one Homishak went up to the Bronx and picked up the car. Under New York law, Dorfman's testimony, since he was an accomplice, required corroboration. [7] It was afforded in the following ways: (1) Mrs. Dorfman testified that Cooper, Stein and Wissner had come to her apartment with her husband on the evening of April 3 and that they carried with them the tan valise which Dorfman had identified as that used in the robbery. It was established by police testimony that this valise had been found in June in Dorfman's apartment and when searched was found to contain a fragment of paper from an order form used by the Reader's Digest in April of 1950—an order form to which subscribers frequently attached cash in such manner that on removal of the cash a portion of the order form would come with it. (2) Police testified that Dorfman's automatic was found near the area where he said that he had thrown it away on April 3. (3) It was established that Petrini was killed by a bullet from a .38 revolver. (4) Homishak testified that he saw Dorfman in the company of the three petitioners on April 3 [8] and that he accompanied Dorfman to the Bronx to pick up the car that night. (5) An employee of the Reader's Digest at Pleasantville testified that he had seen the Spring Rental truck on the premises on April 3 and on one prior occasion. (6) Jeppeson's testimony substantiated Dorfman's story about rental of the truck. [9] (7) It was established that Cooper had absented himself from his job on April 3. (8) Waterbury's testimony about the events of April 3 and identification of Stein and Wissner checked with Dorfman's story. (9) The two confessions, if accepted by the jury, also were corroborative of the accomplice Dorfman in many details. The defendants made no attempt to contradict or explain away any of this damaging testimony. Cooper's counsel, during a colloquy with the court, admitted that Cooper had rented the truck involved on April 3 and offered no explanation as to how this fact could be consistent with his client's claim of innocence. An effort was made on summation to convince the jury that Dorfman, who did not have a prior criminal record, was the killer and had accused these other three, with his wife's cooperation, in order to save his own life. The tenor of the defense appears from Cooper's counsel on summation: I don't care whether Cooper is innocent or guilty, that is insignificant in the solution of the fundamental problem as to whether the state troopers and other enforcing authorities themselves have violated far more fundamental principles. . . . . . . Don't narrow yourselves into a mere solution of a petty murder . . . . Of course, we want a solution to that, but that is secondary, if the solution of that means that you are going to weaken the very foundations of the republic; then you would be unfit to be jurors. Wissner's counsel devoted about half of his summation to arguing that the murder was not premeditated—a point without legal significance in felony murder under New York law.",facts about the crime.
+284,105149,1,2,"Against this background, we come to the controversy over the confessions. Uncontroverted evidence establishes the following: Cooper. —Cooper, who made the first and most crucial confession, was arrested by the state police at 9 o'clock on Monday morning, June 5, under circumstances previously described. His father, who was with him at the time, also was arrested. Both were taken to a police station in New York City, where they were held (but not booked) until early in the afternoon. Thence, they were taken to state police headquarters at Hawthorne, in Westchester County, the county of the offense, arriving at about 2 o'clock. At Hawthorne, the Coopers were separated; the father was detained in the police barracks and the son was taken to an office across the courtyard, known as the Bureau of Identification room, where Cooper's interrogation and his ultimate confession took place. Although Cooper was continuously under guard and handcuffed, no one questioned him until 8 p. m., at which time three officers interrogated him for four or five hours. During this period, Cooper was confronted with his former prison mate, Brassett. However, he did not confess. Questioning was resumed the following day (Tuesday) at 10 a. m. and continued until 6 p. m., the same three officers participating. Just after 6 p. m. Cooper began to discuss confessing. At this time his father was being held at Hawthorne; his brother Morris had been arrested in New York, where his mere presence violated terms of his parole and rendered him subject to disciplinary action. Cooper first obtained a commitment by the police that his father would be released if he confessed. He then asked to see an official of the Parole Board in order to obtain assurance that, if he confessed, his brother Morris would not be prosecuted for parole violation. Accordingly, about 8 p. m. Reardon, an employee of the Parole Board, came to see Cooper, but the latter was not satisfied with his interview. Reardon's superior, Parole Commissioner Donovan, was sent for. Donovan arrived at about 10 p. m. and gave Cooper satisfactory assurance that Morris would be unmolested if Cooper co-operated. Cooper then confessed orally to Reardon and Donovan. Thus the confession was first imparted, not to the police who are charged with brutality, but to visiting parole officials not so accused and called in at his own request. Thereupon, a typewritten confession was prepared which Cooper signed after making certain corrections, at about 1:30 or 2 on the morning of the 7th. It is twelve pages long, in great detail; it is corroborated throughout by other evidence, and its general character is such that it could have been fabricated only by a person gifted with extraordinarily creative imagination. Stein. —Stein was arrested at his brother's home at 2 a. m. on the morning of the 6th, before Cooper confessed. He was taken immediately to Hawthorne Barracks and confined in a room in the basement. The following morning, Captain Glasheen, commandant at the barracks, questioned him for an hour. After lunch questioning was resumed, with another officer joining in the questioning, and continued for two or three hours. That evening, Captain Glasheen returned and interrogated Stein from 7 p. m. until 2 a. m., with no result. At 2 a. m., Stein was informed about Cooper's confession and left with the advice to sleep on it. The following morning, Stein was ready to confess. By afternoon, a statement had been prepared, corrected and signed. This seven-page statement, like Cooper's, was so complete and detailed and so dovetailed with the extrinsic evidence that, if it were not true, its author was possessed of amazing powers of divination. The following day, Stein went to Pleasantville with two officers and explained on the ground how the crime had been committed. Wissner. —Wissner was arrested about 9 a. m. on June 7—subsequent to Cooper's confession, which implicated him—and taken to Hawthorne, where he remained until his arraignment. He made no confession. There is no direct testimony that petitioners were subjected to physical violence or the threat of it during their detention. [10] None of the defendants took the witness stand to substantiate their claims. With one exception, every police officer who had contact with Cooper or Stein during detention was or could have been questioned about it by the defense. The exception came into contact with Stein only and was not shown to have been with him except in the presence of others who were witnesses. Thus, police testimony was consistent and unshaken that no violence or threats were used, that the accused were given food at mealtimes and, with the exceptions we have stated, were allowed to sleep at night. The defendants' contentions as to physical violence rest entirely on circumstantial evidence. They would be utterly without support except for inferences, which they urge, from the admitted fact that when first physically examined, the day after arraignment, they showed certain bruises and injuries which could have been sustained from violent third-degree methods. On the morning of June 9, they were examined by the prison physician. Cooper had been in custody at the barracks between three and four days, Stein three days and Wissner two days. Testimony by the prison doctor who examined them predicated mainly on the notes he made at that time was that Wissner had a broken rib and various bruises and abrasions on the side, legs, stomach and buttocks; Cooper had bruises on the chest, stomach, right arm, and both buttocks; Stein had a bruise on his right arm. Counsel for the petitioners, who examined them on the 9th and 10th of June, testified that the injuries sustained by each were more extensive than those described in the doctor's testimony. The record stands that the injuries were of such nature that they might have been received prior to arrest; [11] indeed, one of the petitioners—Wissner, who exhibited perhaps the worst of the injuries but never confessed—was undergoing treatment at the time he was arrested. [12]",facts about the confessions.
+285,105149,1,4,"Since these convictions may rest in whole or in part upon the confessions, we must consider whether they are a constitutionally permissible foundation for a finding of guilt. Inquiries on which this Court must be satisfied are: (1) Under what circumstances were the confessions obtained? (2) Has the use of the confessions been repugnant to that fundamental fairness essential to the very concept of justice? Lisenba v. California, 314 U. S. 219, 236. The first is identical with that litigated before the trial court and jury. The second is within, if not identical with, those questions considered by the state appellate court. As to both questions, we have the identical evidence that was before both state courts. At the threshold of our inquiry, therefore, lies the question: What, if any, weight do we give to the verdict of the jury, the rulings of the trial judge and the determination of the state appellate court? Petitioners' argument here essentially is that the conclusions of the New York judges and jurors are mistaken and that by reweighing the same evidence we, as a superjury, should find that the confessions were coerced. This misapprehends our function and scope of review, a misconception which may be shared by some state courts with the result that they feel a diminished sense of responsibility for protecting defendants in confession cases. [24] Of course, this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding. But that does not mean that we give no weight to the decision below, or approach the record de novo or with the latitude of choice open to some state appellate courts, such as the New York Court of Appeals. Mr. Justice Brandeis, for this Court, long ago warned that the Fourteenth Amendment does not, in guaranteeing due process, assure immunity from judicial error. Milwaukee Electric Railway & Light Co. v. Milwaukee, 252 U. S. 100, 106. It is only miscarriages of such gravity and magnitude that they cannot be expected to happen in an enlightened system of justice, or be tolerated by it if they do, that cause us to intervene to review, in the name of the Federal Constitution, the weight of conflicting evidence to support a decision by a state court. It is common courtroom knowledge that extortion of confessions by third-degree methods is charged falsely as well as denied falsely. The practical problem is to separate the true from the false. Primary, and in most cases final, responsibility for determining contested facts rests, and must rest, upon state trial and appellate courts. A jury and the trial judge—knowing local conditions, close to the scene of events, hearing and observing the witnesses and parties—have the same undeniable advantages over any appellate tribunal in determining the charge of coercion of a confession as in determining the main charge of guilt of the crime. When the issue has been fairly tried and reviewed, and there is no indication that constitutional standards of judgment have been disregarded, we will accord to the state's own decision great and, in the absence of impeachment by conceded facts, decisive respect. Gallegos v. Nebraska, 342 U. S. 55, 60; Lyons v. Oklahoma, 322 U. S. 596, 602-603; Lisenba v. California, 314 U. S. 219. Accordingly, we accept this verdict and judgment as a permissible resolution of contradictions in evidence or conflicting inferences unless, as is urged, undisputed facts indicate use of incorrect constitutional standards of judgment. This may best be determined by separate examination of the following conclusions, implicit in the judgments below: (1) that these confessions were not extorted by physical coercion; (2) that these confessions were not extorted by methods which, though short of physical coercion, were so oppressive as to render the confessions inadmissible; and (3) that admitted illegal detention of petitioners at the time of the confessions did not render them inadmissible. 1. Physical violence. —Physical violence or threat of it by the custodian of a prisoner during detention serves no lawful purpose, invalidates confessions that otherwise would be convincing, and is universally condemned by the law. When present, there is no need to weigh or measure its effects on the will of the individual victim. The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt. Admitted injuries and bruises on defendants' bodies after arraignment were mute but unanswerable witnesses that their persons recently had been subjected to violence from some source. Slight evidence, even interested testimony, that it occurred during the period of detention or at the hands of the police, or failure by the prosecution to meet the charge with all reasonably available evidence, might well have tipped the scales of decision below. [25] Even here, it would have force if there were any evidence whatever to connect the admitted injuries with the events or period of interrogation. But there is no such word in the record. On the contrary, we have positive testimony of the police, not materially inconsistent or inherently improbable, unshaken on cross-examination. The only expert testimony on the subject is undisputed and is that the injuries may have been sustained before arrest. This becomes more than a possibility when we consider that neither defendants nor anyone else tells us what defendants were up to in the period just prior to arrest. We are not convinced from their criminal records and way of life as now known to us, though not to the jury, that their free days or nights were secure from violence. This, with the whole evidence concerning the confessions, leaves us no basis for throwing out the decisions of the courts below, unless we simply prefer the unsworn claims of defendants' counsel against the evidence. As to the inferences to be drawn from unexplained injuries, under these circumstances, we should defer to the advantages of trial judge and jury. For seven weeks they observed the day-to-day demeanor of defendants, their attitudes and reactions; all the knowledge we have of their personalities is still photographs of two of them. The trial judge and jury also for long periods could observe the police officers whose conduct was in question, knew not only what they answered but how they answered, could form some opinions of their attitudes—of the personal characteristics which never can get into a printed record but which make for belief or unbelief that they were guilty of cruelty and violence. We determine that the state court could properly find that the confessions were not obtained by physical force or threats. 2. Psychological coercion. —Psychological coercion is claimed as a secondary contention. It is urged that admitted facts show psychological pressure by interrogation, such as to overpower these petitioners' mental resistance and induce involuntary confessions. Of course, a process of interrogation can be so prolonged and unremitting, especially when accompanied by deprivation of refreshment, rest or relief, as to accomplish extortion of an involuntary confession. But the inquiry as to such allegations has a different point of departure. Interrogation is not inherently coercive, as is physical violence. Interrogation does have social value in solving crime, as physical force does not. By their own answers many suspects clear themselves, and the information they give frequently points out another who is guilty. Indeed, interrogation of those who know something about the facts is the chief means to solution of crime. The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness. [26] This Court never has held that the Fourteenth Amendment prohibits a state from such detention and interrogation of a suspect as under the circumstances appears reasonable and not coercive. Of course, such inquiries have limits. But the limits are not defined merely by calling an interrogation an inquisition, which adds to the problem only the emotions inherited from medieval experience. The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal. Both Stein and Cooper confessed only after about twelve hours of intermittent questioning. In each case this was stretched out over a 32-hour period, with the suspect sleeping and eating in the interim. In the case of Cooper, a substantial part of this time he spent driving a bargain with the police and the parole officers. It also is true that the questioning was by a number of officers at a time and by different officers at different times. But we cannot say that the use of successive officers to question these petitioners for the periods of time indicated is so oppressive as to overwhelm powers of resistance. While we have reversed convictions founded on confessions secured through interrogations by relays, [27] we have also sustained conviction when, under different circumstances, the relay technique was employed. [28] But we have never gone so far as to hold that the Fourteenth Amendment requires a one-to-one ratio between interrogators and prisoners, or that extensive questioning of a prisoner automatically makes the evidence he gives in response constitutionally prohibited. The inward consciousness of having committed a murder and a robbery and of being confronted with evidence of guilt which they could neither deny nor explain seems enough to account for the confessions here. These men were not young, soft, ignorant or timid. They were not inexperienced in the ways of crime or its detection, nor were they dumb as to their rights. At the very end of his interrogation, the spectacle of Cooper naming his own terms for confession, deciding for himself with whom he would negotiate, getting what he wanted as a consideration for telling what he knew, reduces to absurdity his present claim that he was coerced into confession. Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary. Cooper's and Stein's confessions obviously came when they were convinced that their dance was over and the time had come to pay the fiddler. Even then, Cooper was so far in control of himself and the situation as to dictate the quid pro quo for which he would confess. That confession came at a time when he must have known that the police already knew enough, from Jeppeson and Brassett, to make his implication inevitable. Stein held out until after Cooper had confessed and implicated him. [29] Both confessions were voluntary, in the only sense in which confessions to the police by one under arrest and suspicion ever are. The state courts could properly find an absence of psychological coercion. 3. Illegal detention. —Illegal detention alone is said to void these confessions. All three of the prisoners were held incommunicado at the barracks until the evening of June 8, when they were taken before a nearby magistrate and arraigned. This delay in arraignment was held by the trial judge to be unreasonable as a matter of law and a violation of the statutes of the State of New York. [30] However, such delay does not make a confession secured during such period of illegal detention necessarily inadmissible as a matter of New York law. [31] To delay arraignment, meanwhile holding the suspect incommunicado, facilitates and usually accompanies use of third-degree methods. Therefore, we regard such occurrences as relevant circumstantial evidence in the inquiry as to physical or psychological coercion. As such, it was received and the jury was instructed to consider it in this case. But the petitioners' contention here goes farther—it is that the delayed arraignment compelled the rejection of the confessions. Petitioners confuse the more rigid rule of exclusion which, in the exercise of our supervisory power, [32] we have promulgated for federal courts with the more limited requirements of the Fourteenth Amendment. [33] This, we have held, did not impose rules of evidence on state courts which bind them to exclude a confession because, without coercion, it was obtained while a prisoner was uncounseled and illegally detained. Stroble v. California, 343 U. S. 181, 197; Lisenba v. California, 314 U. S. 219. From the foregoing considerations, we conclude that if the jury resolved that the confessions were admissible as a basis for conviction it was not constitutional error. V. IF THE JURY REJECTED THE CONFESSIONS, COULD IT CONSTITUTIONALLY BASE A CONVICTION ON OTHER SUFFICIENT EVIDENCE? Petitioners raised this question by a request for instruction to the jury that if it found the confessions to have been coerced it must return a verdict of acquittal. This was refused. Their principal authority for the requested charge is Malinski v. New York, 324 U. S. 401, which was tried by the same procedure followed here. This Court reversed the conviction and the opinion of four Justices said of the confession found therein to have been coerced (p. 404): And if it is introduced at the trial, the judgment of conviction will be set aside even though the evidence apart from the confession might have been sufficient to sustain the jury's verdict. Similar expressions are to be found in other cases. It is hard to see why a jury should be allowed to return a verdict which cannot be allowed to stand. If having heard an illegally obtained confession prevents a legal verdict of guilty on other sufficient evidence, why permit return of one foredoomed to be illegal? The alternative, of course, is an acquittal, which is what petitioners asked. The claim is far-reaching. There can be no jury trial of the coercion issue without bringing to the knowledge of the jurors the fact of confession and usually its contents. But American practice has evolved no technique for learning, through special verdict or otherwise, what part the knowledge plays in the result. Hence the dilemma of this case is always present, if not presented in earlier cases. If this uncertainty invalidates any conviction or requires an acquittal, it is a grave matter, for most states, like New York, permit no prosecution after acquittal. [34] This would go far toward making it impracticable to submit the issue of coercion to the jury, a traditional practice assumed on the whole to be of advantage to the defense and an additional protection to the accused. The claim also is novel. This Court never has decided that reception of a confession into evidence, even if we held it to be coerced, requires an acquittal or discharge of a defendant. On the contrary, this Court has returned all such cases for retrial, which we should not have done if obtaining and attempted use of a coerced confession were enough to require acquittal. It is not deniable that apart from the Malinski statement there have been other similar utterances. Lyons v. Oklahoma, 322 U. S. 596, 597 (footnote); Stroble v. California, 343 U. S. 181, 190; Gallegos v. Nebraska, 342 U. S. 55, 63. It is clear, however, that these statements were dicta about a proposition not essential to the result, since in each instance those confessions were sustained and the convictions affirmed. And, of course, the present consequences were not asserted or argued at the bar nor anticipated or approved by anything appearing in the opinions. Except in Malinski, the question presented here could not have been raised or decided. This Court's power to reverse such a conviction was first exerted in Brown v. Mississippi, 297 U. S. 278, in which the only evidence in the trial consisted of a confession admittedly secured through mob violence. The Court there reasoned that if the defendant's trial consisted solely of the introduction of such evidence, he had only a mere pretense of a trial; the actual trial had occurred during the extortion of the confession, and the subsequent proceeding was only a formal ratification of the mob's action. Such a proceeding would be a violation of the Due Process Clause under even the most restricted view. In Ashcraft v. Tennessee, 322 U. S. 143, 145, and Ward v. Texas, 316 U. S. 547, we noted that without the confession there could be no conviction. And in Lyons, there was no credible evidence of guilt in the record except the confession; in the Gallegos case, it is noted that conviction without the confession would logically have been impossible (p. 60) and this Court therefore assumed that the jury found the statements voluntary. Against this factual background, we do not think our cases establish that to submit a confession to a state jury for judgment of the coercion issue automatically disqualifies it from finding a conviction on other sufficient evidence, if it rejects the confession. [35] Here the evidence of guilt, consisting of direct testimony of the surviving victim, Waterbury, and the well-corroborated accomplice, Dorfman, as well as incriminating circumstances unexplained, is enough apart from the confessions so that it could not be held constitutionally or legally insufficient to warrant the jury verdict. Indeed, if the confessions had been omitted and the convictions rested on the other evidence alone, we would find no grounds to review, not to mention to reverse them. We would have a different question if the procedure had been that which may have been in mind when some of our cases were written. Of course, where the judge makes a final determination that a confession is admissible and sends it to the jury as a part of the evidence to be considered on the issue of guilt and the ruling admitting the confession is found on review to be erroneous, the conviction, at least normally, should fall with the confession. But here the confessions are put before the jury only tentatively, subject to its judgment as to voluntariness and with binding instructions that they be rejected and ignored unless found beyond reasonable doubt to have been voluntary. By petitioners' hypothesis on this point, the jury itself rejected the confessions. The ample other evidence makes this a possible, if not very convincing, explanation of the verdict. By the very assumption, however, there has been no error, for the confessions finally were rejected as the free choice of the jury. We could hold that such provisional and contingent presentation of the confessions precludes a verdict on the other sufficient evidence after they are rejected only if we deemed the Fourteenth Amendment to enact a rigid exclusionary rule of evidence rather than a guarantee against conviction on inherently untrustworthy evidence. We have refused to hold it to enact an exclusionary rule in the case of other illegally obtained evidence. Wolf v. Colorado, 338 U. S. 25; Schwartz v. Texas, 344 U. S. 199; Snyder v. Massachusetts, 291 U. S. 97. See Adamson v. California, 332 U. S. 46; United States v. Carignan, 342 U. S. 36. Coerced confessions are not more stained with illegality than other evidence obtained in violation of law. But reliance on a coerced confession vitiates a conviction because such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and deceptive evidence. A forced confession is a false foundation for any conviction, while evidence obtained by illegal search and seizure, wire tapping, or larceny may be and often is of the utmost verity. Such police lawlessness therefore may not void state convictions while forced confessions will do so. We find no error in refusing the instruction asked in this case. But this does not exhaust petitioners' arsenal of objections. They argue that even if the jury were permitted to find the verdict, a reviewing court must set it aside. They say that affirmance without opinion may mean that, while the Court of Appeals thought the treatment of the confessions erroneous, it may have affirmed on the basis that, in view of other sufficient evidence, the error was harmless. The New York statute, [36] like the Federal Rules of Criminal Procedure, [37] commands reviewing courts to disregard errors and irregularities which do not affect substantial rights. That such a general legislative mandate is constitutional is not in question. If the general rule is not prohibited, the question in each case becomes one as to the propriety of its application to the evidence. In a trial such as this, lasting seven weeks, where objections by three defense counsel required in excess of three hundred rulings by the trial court without the long deliberation and debate possible for appellate court consideration, it would be a miracle if there were not some questions on which an appellate court would rule otherwise than did the trial judge. The harmless-error statutes have been adopted to give discretion to overlook errors which cannot be seen to do injustice. But, whatever may have been the grounds of the Court of Appeals, we base our decision, not upon grounds that error has been harmless, but upon the ground that we find no constitutional error. We have pointed out that it was not error if the jury admitted and relied on the confession and was not error if they rejected it and convicted on other evidence. To say that although there was no error in the trial an appellate court must reverse would require justification by more authority than we are able to discover.",was it unconstitutional if these confessions were used as the basis of conviction?
+286,105149,1,5,"Wissner's case is somewhat different and its disposition involves other considerations. Wissner never confessed, but he was implicated by those who did. His objections raise questions of admissibility of the confessions to which he was not a party. However, we find as regards Wissner no constitutional error such as would justify our setting aside his conviction. Our holding that it was permissible for the state courts to find that the confessions were voluntary takes away the support for Wissner's position here. But, even if the confessions were considered to have been involuntary, their use would not have violated any federal right of Wissner's. Malinski v. New York, 324 U. S. 401, 410-412. This Court there refused to reverse the conviction of Rudish, a codefendant of Malinski who had been named in the latter's confession. It is true that Rudish's name was there deleted and an X substituted in its place before the jury got the confession. Use of this device does not appear to have been controlling in the Court's decision and Mr. Justice Rutledge, dissenting, pointed out what no one questioned, that The devices were so obvious as perhaps to emphasize the identity of those they purported to conceal. P. 430. On remand, the New York Court of Appeals on its own initiative ordered a new trial for Rudish as well as Malinski. 294 N. Y. 500, 63 N. E. 2d 77. Surely in the light of the other testimony such a deletion from the confessions here would not have diverted their incriminating statements from Wissner to an anonymous nobody. Wissner, however, contends that his federal rights were infringed because he was unable to cross-examine accusing witnesses, i. e., the confessors. He contends that the privilege of confrontation is secured by the Fourteenth Amendment, relying on one sentence in Snyder v. Massachusetts, 291 U. S. 97, 107. [38] However, the words cited were quoted verbatim from Dowdell v. United States, 221 U. S. 325, 330, in which the language was used to describe the purpose of the Sixth Amendment provision on confrontation in federal cases. It was transposed to Snyder solely to point out the distinction between a right of confrontation and a mere right of an accused to be present at his own trial. [39] The Court in Snyder specifically refrained from holding that there was any right of confrontation under the Fourteenth Amendment, [40] and clearly held to the contrary in West v. Louisiana, 194 U. S. 258, in which it was decided that the Federal Constitution did not preclude Louisiana from using affidavits on a criminal trial. Basically, Wissner's objection to the introduction of these confessions is that as to him they are hearsay. The hearsay-evidence rule, with all its subtleties, anomalies and ramifications, will not be read into the Fourteenth Amendment. Cf. West v. Louisiana, supra . Perhaps the methods adopted by the New York courts to protect Wissner against any disadvantage from the State's use of the Cooper and Stein confessions were not the most effective conceivable. But its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar. Snyder v. Massachusetts, supra, at 105.",wissner's case.
+287,118407,1,1,"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73. We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and act[s] pursuant to a valid grant of constitutional authority. 528 U. S., at 73. The first of these requirements is not in dispute here. See 42 U. S. C. § 12202 (A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA. Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra, at 79 (Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers); Seminole Tribe, supra, at 72-73 (The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction); College Savings Bank, supra, at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. Id., at 456 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e. g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation. [3] Section 1 of the Fourteenth Amendment provides, in relevant part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting appropriate legislation. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. Rather, Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Kimel, supra, at 81; City of Boerne, supra, at 536. City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, § 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Id., at 520.",The Eleventh Amendment provides:
+288,137749,1,2,Alaska Hawaii Iowa Maine Massachusetts Michigan Minnesota North Dakota Rhode Island Vermont West Virginia Wisconsin,states without the death penalty
+289,104165,1,1,"(a) Season or seasonal refers to the irrigation season, May 1 to September 30, inclusive; (b) The term storage water as applied to releases from reservoirs owned and operated by the United States is defined as any water which is released from reservoirs for use on lands under canals having storage contracts in addition to the water which is discharged through those reservoirs to meet natural flow uses permitted by this decree; (c) Natural flow water shall be taken as referring to all water in the stream except storage water; (d) Return flows of Kendrick Project shall be deemed to be natural flow water when they have reached the North Platte River, and subject to the same diversion and use as any other natural flow in the stream.",For the purposes of this decree:
+290,85888,1,1,"1st. The account was one entire document, and the defendant, if he elected to rely on any part thereof, was bound, by the general rules of evidence, to take the whole as evidence, so far as it was pertinent to the subject matter of the suit. 2d. There is the more reason for adhering to the general rule in this case, because the account was stated by a public officer, to whom, by law, and by the contract of the parties, the duty of settling the accounts in question, was to be referred. The arguments presented to the court on this case, and on the following case, are reported together to avoid repetition.",The second exception was well taken.
+291,94457,1,1,"19. Evidence has been introduced upon the trial with reference to drafts drawn by the Indianapolis Cabinet Company on the Tufts Cabinet Company and accepted in the name of the latter company, and it is claimed on behalf of the government that there never was any such organization as said Tufts Cabinet Company, but that the same was wholly fictitious. This evidence has been permitted to be introduced before you for the purpose of throwing light upon the intent of the defendants and of Theodore P. Haughey in connection with the charge of wrongdoing by them in the various counts of the indictment. This evidence can only be considered by you for this purpose, as there is no charge in any count of the indictment based upon this particular transaction, and the light it may throw upon the intent of the defendants or either of them or of said Haughey must depend upon all the circumstances shown to have attended the transaction. 43. As you have been already told, the government in this case is prosecuting the defendants for particular transactions charged to have been unlawful and criminal, as specifically set forth in certain specific counts of the indictment. Evidence has been introduced by the government of other transactions between the Indianapolis Cabinet Company and the Indianapolis National Bank and various other parties. This evidence has been allowed to go before you solely upon the question of intent and should be considered by you only in so far as it may tend to illustrate the intent of Mr. Haughey or of the defendants. Except for that purpose you have nothing to do with other transactions than those specifically charged and prosecuted under this indictment. Except as illustrating such intent, the question of the lawfulness or unlawfulness of such other transactions is one with which you have nothing to do. We think the instructions here requested were properly refused because fully covered by the general charge of the court. Northern Pacific Railroad v. Urlin, 158 U.S. 271, 277; Grand Trunk Railway v. Ives, 144 U.S. 408, 433; Erie Railroad v. Winter, 143 U.S. 60, 74; Ayers v. Watson, 137 U.S. 584, 601, 603. Repeatedly in the instructions given, the jury were told that they could not find the defendants guilty, unless they were satisfied beyond a reasonable doubt that Haughey and the defendants had committed the specific criminal acts alleged in the counts of the indictment which were submitted to them with the intent therein charged. Thus the court, in the opening of its charge, said: You have nothing to do with the other counts of the indictment, which are withdrawn from your consideration. Again, in another portion of the charge: The particular acts of misapplication described in the several specific counts of the indictment on trial before you must be established by the proofs as therein respectively charged. And yet further: You are not authorized to find the defendants guilty of any other charge of aiding and abetting in the wilful misapplication of the moneys, funds and credits of said bank, except those specifically charged in the first twelve counts of the indictment now on trial before you, and also on the specific charges elected by the Government, as above stated, under the thirteenth, fourteenth, fifteenth and sixteenth counts of the indictment. Having thus repeatedly called the attention of the jury to the fact that they were confined in the determination of the guilt of the accused to the specific matters submitted to them, the court, on the subject of intention, also correctly instructed them that for this purpose and for this purpose alone they might consider the proof introduced as to other misapplications than those charged in the counts which were before them. For instance, the court observed: In determining whether they had the criminal intent to deceive or defraud as charged, or whether they acted in good faith, you should take into consideration the situation of the parties, the course of business between them as well as between the cabinet company and the bank, and all the facts and circumstances in proof before you. We think there can be no doubt that the charge of the court as given, therefore, left no question in the minds of the jury that they could only find the defendants guilty upon the particular matters specified in the counts submitted to them, and that they could not find them guilty of a different misapplication from that charged, whether or not there was proof establishing such other misapplications. IV. The fourth point alleges, as error, the refusal of the court to give the following requested instruction: 15. The intent on the part of Mr. Haughey in the alleged misapplications of the moneys of the bank to injure or defraud the bank is an essential ingredient of the offence charged against the defendants. In determining the question, therefore, of Mr. Haughey's intent, you should take into consideration the relation he bore to this bank, both as an officer and shareholder, and whether the evidence shows any motive on his part for defrauding or injuring the bank, and it is for you to say, in the light of all the evidence, whether Mr. Haughey, in letting the cabinet company have such moneys, did so with such intent. If the evidence does not satisfy you beyond a reasonable doubt of such intent, then the government's case is not made out. In determining this question you may consider whether Mr. Haughey was in any way benefited, or hoped to be benefited, by the loans or advances to the cabinet company; and, if you find from the evidence that there was no such benefit or hope thereof on the part of Mr. Haughey, such fact may be considered by you in determining whether there was any such intent as is charged, and, if the making of such loans and advances was under such circumstances shown by the evidence as would injure or tend to injure Mr. Haughey, that fact may be considered in like manner and for the same purpose. The complaint is made that nowhere in the charges given did the court expressly inform the jury that they might consider, in determining the question of criminal intent, whether the evidence disclosed that the motive of personal gain induced Haughey to commit the offence charged. But the instruction requested, in the particular mentioned, was not upon the law of the case, but upon the inferences to be drawn from the evidence, a matter peculiarly within the province of the jury. The court did charge that the jury might look at all the proofs in the case in determining the question of guilty intent, and while it also instructed that it was not necessary for the commission of this offence that the officer of the bank who makes a wilful misapplication should derive any personal benefit or advantage from the transaction, the court added that: When the moneys, funds or credits of the bank are unlawfully taken from its possession and knowingly and wilfully misapplied, by converting them to the use of any person or company other than the bank, with the intention to injure and defraud, the offence described in the statute has been committed. So, also, the court elsewhere in its instructions to the jury said: If loans and discounts are made by the president of a national bank in bad faith for the fraudulent purpose of giving gain or advantage to some other person or company, and not in the honest exercise of official discretion, the officer making them passes the line dividing honesty and dishonesty, and his action is criminal if done with intent to injure and defraud the banking association, and it so results. The accused could not properly single out the absence of one of several possible motives for the commission of an offence, isolate it in an instruction from all the other facts of the case, and demand that the court instruct the jury as to the weight to be given this particular fact, independent of all the other proof in the case. The charge as a whole having correctly conveyed to the jury the rule by which they were to determine from all the evidence the question of intent, we think there was no error to the prejudice of the defendant in refusing the request which he asked. V. This point alleges error in the refusal of the court to give two instructions requested by plaintiff in error, one to the effect that the allowance of mere overdrafts was not of itself sufficient to show any criminal intent on the part of Haughey, and the other, that, notwithstanding that the statute forbids loans to any one person in excess of ten per cent of the capital stock, such loan, although unlawful, was not for that reason alone criminal. The first instruction referred to is, in substance, given in various parts of the charge of the court. Thus the court instructed the jury: On the counts for wilful misapplication the questions for you to determine are: Did Theodore P. Haughey, as president of the Indianapolis National Bank, knowingly and unlawfully and with intent to injure and defraud said bank in manner and in form as charged, wilfully misapply the moneys, funds or credits of said bank by cashing, discounting and paying for the use and benefit of the said Indianapolis Cabinet Company, knowing it to be insolvent, out of the moneys, funds and credits of the bank without authority from its board of directors, any notes, drafts or bills of exchange drawn by and upon insolvent persons, firms and companies, knowing them to be insolvent, and knowing such notes, drafts or bills of exchange to be valueless, in manner and form as charged in either count of the indictment? If he did, he has committed the offence of wilful misapplication as charged in the count or counts of the indictment now on trial relating to that subject which you find to have been so proved. The court also said: If Haughey and the defendants withdrew moneys from the bank for the use of the cabinet company by means of checks drawn by it on said bank when it had no funds or moneys on deposit against which to draw, if they acted in good faith, honestly believing that the cabinet company would be able to repay the same when required, they would not be guilty of the intent to defraud the bank as charged; but, on the other hand, if they acted in bad faith and did not believe and had no reasonable ground to believe that the cabinet company could repay such overdrafts when required to do so, then they had no lawful right to make such overdrafts or allow them to be made. We think the second requested instruction was also fully covered in the charge actually given.",This point complains of the refusal to give the following instructions:
+292,94457,1,5,"If Haughey and the defendants withdrew moneys from the bank for the use of the cabinet company by means of checks drawn by it on said bank when it had no funds or moneys on deposit against which to draw, if they acted in good faith, honestly believing that the cabinet company would be able to repay the same when required, they would not be guilty of the intent to defraud the bank as charged; but, on the other hand, if they acted in bad faith, and did not believe, and had no reasonable ground to believe, that the cabinet company could repay such overdrafts when required to do so, then they had no lawful right to make such overdrafts or allow them to be made. But this instruction should be read in connection with the paragraph following, which is as follows: Every person is presumed to intend the natural and ordinary consequences of his own acts. Hence, if the natural and ordinary consequences of the acts of Haughey and the defendants, as shown by the proofs, were to injure and defraud the bank as charged, you would be authorized to find that such was their intent, if such intent is in harmony with the other proofs in the case. It cannot be disputed that a bank president not acting in good faith has no right to permit overdrafts when he does not believe and has no reasonable ground to believe that the moneys can be repaid. And if, coupled with such wrongful act, the proof establishes that he intended by the transaction to injure and defraud the bank, the wrongful act becomes a crime. XI. This embraces assignments of error Nos. 49 and 50, which allege error in the giving of the following instructions: If, however, the entry truly represents an actual bona fide transaction, then it would not constitute a false entry. But if the paper was never accepted or discounted by him for the bank, but was simply left with the bank as a mere memorandum and not as a deposit and for the fraudulent purpose of enabling fictitious entries to be made on the books of the bank with the intent to deceive or defraud as charged, such entry on the books of the bank would constitute a false entry. These sentences were contained in the following paragraph of the charge of the court: An entry knowingly and purposely made on the books of the bank, with intent to deceive or defraud, as charged, which represents as an actual transaction, one which does not and did not exist, or an entry knowingly and purposely made, with intent to deceive and defraud, as charged, which in a material part falsely and untruly represents an actual and existing transaction, would constitute a false entry within the meaning of the statute. If, however, the entry truly represents an actual bona fide transaction, then it would not constitute a false entry. The objection to this portion of the charge is that it assumes that an entry is false unless it represents a transaction entered into in good faith and without fraud. It is contended that this instruction is within the condemnation of this court as expressed in its former opinion, 156 U.S. 463, where it was said: The exception reserved to the charge actually given by the court (on the subject of false entries) was well taken, because therein the questions of misapplication and of false entries are interblended in such a way that it is difficult to understand exactly what was intended. We think the language used must have tended to confuse the jury and leave upon their minds the impression that if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry exactly as it occurred constituted `a false entry;' in other words, that an entry would be false, though it faithfully described an actual occurrence, unless the transaction which it represented involved full and fair value for the bank. The thought thus conveyed implied that the truthful entry of a fraudulent transaction constitutes a false entry within the meaning of the statute. We think it is clear that the making of a false entry is a concrete offence which is not committed where the transaction entered actually took place, and is entered exactly as it occurred. The objection is not meritorious. The trial court carefully distinguished between an entry based upon an actual discount of paper and credit predicated thereon, and a credit not representing an actual deposit or discount. The expression bona fide was used in the sense of real, and but emphasized the word actual. Nor is there force in the suggestion that the instruction must have tended to confuse the jury and leave upon their minds an impression that if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry, exactly as it occurred, constituted a false entry. It is claimed that under the proof these instructions were wholly irrelevant. Reliance is placed upon a statement in the bill of exceptions that the evidence showed that all the paper upon which the credit mentioned in said thirty-ninth count was based was retained in said bank as a part of its assets until the same matured, when it was renewed by other paper of the same kind, and again renewed from time to time as it matured, until said bank failed, at which time said paper, so renewed, was in possession of said bank as a part of its assets and passed as such into the possession of the receiver, by whom it was held as a part of the indebtedness of the cabinet company to said bank, secured by the mortgage executed (to Haughey as trustee for said bank) by said cabinet company to secure the indebtedness of said cabinet company to said bank. But this is entirely consistent with the claim that the original paper was simply left with the bank as a mere memorandum, and not as a deposit, etc. The fact that other notes were substituted for this paper does not necessarily import that the original transaction was an actual one if the notes were originally given to the bank as a mere pretext to enable the false entry to be made, and the subsequent renewals were equally unreal and made for a like purpose. The receiver was empowered, finding them in the hands of the bank, to retain them as a part of its assets. Prior to the statement in the bill of exceptions, which we have quoted, the following recital appears: It was claimed on behalf of the government, and evidence was by it introduced tending to show, that the paper was not bona fide paper, representing the value for which the same was credited or any substantial value, and that said paper was not actually discounted by said bank or actually received as a genuine deposit, but was only received as a memorandum deposit to serve for the time being only, for the purpose of giving the Indianapolis Cabinet Company an apparent credit upon the books of the bank, which in fact it did not have, and that said entries represented no actual transactions whatever. We think this extract clearly indicates that the charge as given was relevant to the issue. XII. This heading alleges error in overruling the motion in arrest of judgment. We do not deem it necessary to consider it at length. It is predicated on the assertion that six of the seven counts upon which conviction was had were bad, because it alleged that the bank had been heretofore created and organized under the laws of the United States. If we assume that the word should have been theretofore in order to make it certain that prior to the finding of the indictment the association had been incorporated, and if we further assume that the allegation as to the incorporation of the bank was material, the averment was only an imperfect statement of that which the law implies to be true after verdict. Wharton Crim. Plead. Ev. § 760. Under this heading it is moreover contended that the thirty-ninth count was defective, because the principal offender was charged with having made the false entries with the intent to injure and defraud the bank, and also with the intent to deceive any agent appointed and any agent or agents who might thereafter be appointed by the Comptroller of the Currency to examine the affairs of the association, whilst the aiders and abettors were charged only with having had an intent to deceive the agent appointed by the Comptroller. The answer is self-evident. It was wholly immaterial that the principal offender should have had several intents, provided the principal and the aider and abettor were both actuated by the criminal intent specified in the statute. The alleged additional intent on the part of the principal offender might well have been treated as surplusage; besides, it appears from the recital in the bill of exceptions that there was evidence tending to show that the purpose of Haughey in causing the false entry to be made was to deceive any officer who might be sent by the Comptroller of the Currency to make an examination of the bank, and that the paper upon which the entry was made, as stated in the count, was furnished by the defendant Coffin at the request of Haughey with a like intent. This completes the review of all the very numerous grounds of error which have been pressed upon our consideration, and the result is that we find that they are all without merit. The judgment is, therefore, Affirmed.",This alleges error in the following portion of the charge of the court:
+293,110649,2,1,"Assuming that the rational basis test is the appropriate standard of review, we conclude that no such rationality supports ordinance No. 1353. The test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose. First, the challenged legislation must have a legitimate public purpose based on promotion of the public welfare, health or safety. See, e. g., Rinaldi v. Yeager, 384 U. S. 305, 309-10 . . . (1966); Falfurrias Creamery Co. v. City of Laredo, 276 S. W. 2d 351 (Tex. Civ. App. 1955, writ ref'd n.r.e.). Second, the act taken must bear a rational relation to the end it seeks to further. See e. g., Griswold v. Connecticut, 381 U. S. at 505-507 . . . (WHITE, J., concurring); Schware v. Board of Bar Examiners, 353 U. S. 232, 239 . . . (1957); City of University Park v. Benners, 485 S. W. 2d 773, 778-79 (Tex. 1972), appeal dismissed 411 U. S. 901 . . . (1973). The requirement of legislative rationality in the service of legitimate purposes protects individuals and their liberties from official arbitrariness or unthinking prejudice. As one commentator noted, irrationality at least means `patently useless in the service of any goal apart from whim or favoritism.' Michelman, Politics and Values or What's Really Wrong with Rationality Review? 13 Creighton Law Review 487, 499 (1979). The test requires that legislation constitute a means that is `reasonable, not arbitrary and rests upon some ground of difference having a fair and substantial relation to the object of the legislation . . . ' Texas Woman's University v. Chayklintaste, 530 S. W. 2d 927, 928 (Tex. 1979), citing Reed v. Reed, 404 U. S. 71, 76 . . . (1971). Accord, United States Department of Agriculture v. Moreno, 413 U. S. 528 . . . (1973); James v. Strange, 407 U. S. 128. . . (1972); Jackson v. Indiana, 406 U. S. 715 . . . (1972); Stanley v. Illinois, 405 U. S. 645 . . . (1972); Eisenstadt v. Baird, 405 U. S. 438 . . . (1972). Examination of ordinance No. 1353 reveals two stated purposes. First, the ordinance seeks to prevent truancy. Second, it seeks to keep minors from being exposed to people `who would promote gambling, sale of narcotics and other unlawful activities.' We conclude that the seventeen year old age requirement in no way rationally furthers these interests in regulating the associational activity of Mesquite's young citizens, even making the assumption that both of these goals are legitimate. 630 F. 2d, at 1039.",Rational Basis
+294,106440,1,4,"Economic arrangements between companies standing in a supplier-customer relationship are characterized as vertical. The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a clog on competition, Standard Oil Co. of California v. United States, 337 U. S. 293, 314, which deprive[s] . . . rivals of a fair opportunity to compete. [40] H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. Every extended vertical arrangement by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement. However, the Clayton Act does not render unlawful all such vertical arrangements, but forbids only those whose effect may be substantially to lessen competition, or to tend to create a monopoly in any line of commerce in any section of the country. Thus, as we have previously noted, [d]etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition `within the area of effective competition.' Substantiality can be determined only in terms of the market affected. [41] The area of effective competition must be determined by reference to a product market (the line of commerce) and a geographic market (the section of the country). The Product Market. The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. [42] However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. [43] Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition in any line of commerce (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed. [44] Applying these considerations to the present case, we conclude that the record supports the District Court's finding that the relevant lines of commerce are men's, women's, and children's shoes. These product lines are recognized by the public; each line is manufactured in separate plants; each has characteristics peculiar to itself rendering it generally noncompetitive with the others; and each is, of course, directed toward a distinct class of customers. Appellant, however, contends that the District Court's definitions fail to recognize sufficiently price/quality and age/sex distinctions in shoes. Brown argues that the predominantly medium-priced shoes which it manufactures occupy a product market different from the predominantly low-priced shoes which Kinney sells. But agreement with that argument would be equivalent to holding that medium-priced shoes do not compete with low-priced shoes. We think the District Court properly found the facts to be otherwise. It would be unrealistic to accept Brown's contention that, for example, men's shoes selling below $8.99 are in a different product market from those selling above $9.00. This is not to say, however, that price/quality differences, where they exist, are unimportant in analyzing a merger; they may be of importance in determining the likely effect of a merger. But the boundaries of the relevant market must be drawn with sufficient breadth to include the competing products of each of the merging companies and to recognize competition where, in fact, competition exists. Thus we agree with the District Court that in this case a further division of product lines based on price/quality differences would be unrealistic. Brown's contention that the District Court's product market definitions should have recognized further age/sex distinctions raises a different problem. Brown's sharpest criticism is directed at the District Court's finding that children's shoes constituted a single line of commerce. Brown argues, for example, that a little boy does not wear a little girl's black patent leather pump and that [a] male baby cannot wear a growing boy's shoes. Thus Brown argues that infants' and babies'  shoes, misses' and children's shoes and youths' and boys'  shoes should each have been considered a separate line of commerce. Assuming, arguendo, that little boys' shoes, for example, do have sufficient peculiar characteristics to constitute one of the markets to be used in analyzing the effects of this merger, we do not think that in this case the District Court was required to employ finer age/sex distinctions than those recognized by its classifications of men's, women's, and children's shoes. Further division does not aid us in analyzing the effects of this merger. Brown manufactures about the same percentage of the Nation's children's shoes (5.8%) as it does of the Nation's youths' and boys' shoes (6.5%), of the Nation's misses' and children's shoes (6.0%) and of the Nation's infants' and babies' shoes (4.9%). Similarly, Kinney sells about the same percentage of the Nation's children's shoes (2%) as it does of the Nation's youths' and boys' shoes (3.1%), of the Nation's misses' and children's shoes (1.9%), and of the Nation's infants' and babies' shoes (1.5%). Appellant can point to no advantage it would enjoy were finer divisions than those chosen by the District Court employed. Brown manufactures significant, comparable quantities of virtually every type of nonrubber men's, women's, and children's shoes, and Kinney sells such quantities of virtually every type of men's, women's, and children's shoes. Thus, whether considered separately or together, the picture of this merger is the same. We, therefore, agree with the District Court's conclusion that in the setting of this case to subdivide the shoe market further on the basis of age/sex distinctions would be impractical and unwarranted. The Geographic Market. We agree with the parties and the District Court that insofar as the vertical aspect of this merger is concerned, the relevant geographic market is the entire Nation. The relationships of product value, bulk, weight and consumer demand enable manufacturers to distribute their shoes on a nationwide basis, as Brown and Kinney, in fact, do. The anticompetitive effects of the merger are to be measured within this range of distribution. The Probable Effect of the Merger. Once the area of effective competition affected by a vertical arrangement has been defined, an analysis must be made to determine if the effect of the arrangement may be substantially to lessen competition, or to tend to create a monopoly in this market. Since the diminution of the vigor of competition which may stem from a vertical arrangement results primarily from a foreclosure of a share of the market otherwise open to competitors, an important consideration in determining whether the effect of a vertical arrangement may be substantially to lessen competition, or to tend to create a monopoly is the size of the share of the market foreclosed. However, this factor will seldom be determinative. If the share of the market foreclosed is so large that it approaches monopoly proportions, the Clayton Act will, of course, have been violated; but the arrangement will also have run afoul of the Sherman Act. [45] And the legislative history of § 7 indicates clearly that the tests for measuring the legality of any particular economic arrangement under the Clayton Act are to be less stringent than those used in applying the Sherman Act. [46] On the other hand, foreclosure of a de minimis share of the market will not tend substantially to lessen competition. Between these extremes, in cases such as the one before us, in which the foreclosure is neither of monopoly nor de minimis proportions, the percentage of the market foreclosed by the vertical arrangement cannot itself be decisive. In such cases, it becomes necessary to undertake an examination of various economic and historical factors in order to determine whether the arrangement under review is of the type Congress sought to proscribe. [47] A most important such factor to examine is the very nature and purpose of the arrangement. [48] Congress not only indicated that the tests of illegality [under § 7] are intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act, [49] but also chose for § 7 language virtually identical to that of § 3 of the Clayton Act, 15 U. S. C. § 14, which had been interpreted by this Court to require an examination of the interdependence of the market share foreclosed by, and the economic purpose of, the vertical arrangement. Thus, for example, if a particular vertical arrangement, considered under § 3, appears to be a limited term exclusive-dealing contract, the market foreclosure must generally be significantly greater than if the arrangement is a tying contract before the arrangement will be held to have violated the Act. Compare Tampa Electric Co. v. Nashville Coal Co., 365 U. S. 320, and Standard Oil Co. of California v. United States, supra , with International Salt Co. v. United States, 332 U. S. 392. [50] The reason for this is readily discernible. The usual tying contract forces the customer to take a product or brand he does not necessarily want in order to secure one which he does desire. Because such an arrangement is inherently anticompetitive, we have held that its use by an established company is likely substantially to lessen competition although only a relatively small amount of commerce is affected. International Salt Co. v. United States, supra . Thus, unless the tying device is employed by a small company in an attempt to break into a market, cf. Harley-Davidson Motor Co., 50 F. T. C. 1047, 1066, the use of a tying device can rarely [51] be harmonized with the strictures of the antitrust laws, which are intended primarily to preserve and stimulate competition. See Standard Oil Co. of California v. United States, supra, at 305-306. On the other hand, requirement contracts are frequently negotiated at the behest of the customer who has chosen the particular supplier and his product upon the basis of competitive merit. See, e. g., Tampa Electric Co. v. Nashville Coal Co., supra . Of course, the fact that requirement contracts are not inherently anticompetitive will not save a particular agreement if, in fact, it is likely substantially to lessen competition, or to tend to create a monopoly. E. g., Standard Oil Co. of California v. United States, supra . Yet a requirement contract may escape censure if only a small share of the market is involved, if the purpose of the agreement is to insure to the customer a sufficient supply of a commodity vital to the customer's trade or to insure to the supplier a market for his output and if there is no trend toward concentration in the industry. Tampa Electric Co. v. Nashville Coal Co., supra . Similar considerations are pertinent to a judgment under § 7 of the Act. The importance which Congress attached to economic purpose is further demonstrated by the Senate and House Reports on H. R. 2734, which evince an intention to preserve the failing company doctrine of International Shoe Co. v. Federal Trade Comm'n, 280 U. S. 291. [52] Similarly, Congress foresaw that the merger of two large companies or a large and a small company might violate the Clayton Act while the merger of two small companies might not, although the share of the market foreclosed be identical, if the purpose of the small companies is to enable them in combination to compete with larger corporations dominating the market. [53] The present merger involved neither small companies nor failing companies. In 1955, the date of this merger, Brown was the fourth largest manufacturer in the shoe industry with sales of approximately 25 million pairs of shoes and assets of over $72,000,000 while Kinney had sales of about 8 million pairs of shoes and assets of about $18,000,000. Not only was Brown one of the leading manufacturers of men's, women's, and children's shoes, but Kinney, with over 350 retail outlets, owned and operated the largest independent chain of family shoe stores in the Nation. Thus, in this industry, no merger between a manufacturer and an independent retailer could involve a larger potential market foreclosure. Moreover, it is apparent both from past behavior of Brown and from the testimony of Brown's President, [54] that Brown would use its ownership of Kinney to force Brown shoes into Kinney stores. Thus, in operation this vertical arrangement would be quite analogous to one involving a tying clause. [55] Another important factor to consider is the trend toward concentration in the industry. [56] It is true, of course, that the statute prohibits a given merger only if the effect of that merger may be substantially to lessen competition. [57] But the very wording of § 7 requires a prognosis of the probable future effect of the merger. [58] The existence of a trend toward vertical integration, which the District Court found, is well substantiated by the record. Moreover, the court found a tendency of the acquiring manufacturers to become increasingly important sources of supply for their acquired outlets. The necessary corollary of these trends is the foreclosure of independent manufacturers from markets otherwise open to them. And because these trends are not the product of accident but are rather the result of deliberate policies of Brown and other leading shoe manufacturers, account must be taken of these facts in order to predict the probable future consequences of this merger. It is against this background of continuing concentration that the present merger must be viewed. Brown argues, however, that the shoe industry is at present composed of a large number of manufacturers and retailers, and that the industry is dynamically competitive. But remaining vigor cannot immunize a merger if the trend in that industry is toward oligopoly. See Pillsbury Mills, Inc., 50 F. T. C. 555, 573. It is the probable effect of the merger upon the future as well as the present which the Clayton Act commands the courts and the Commission to examine. [59] Moreover, as we have remarked above, not only must we consider the probable effects of the merger upon the economics of the particular markets affected but also we must consider its probable effects upon the economic way of life sought to be preserved by Congress. [60] Congress was desirous of preventing the formation of further oligopolies with their attendant adverse effects upon local control of industry and upon small business. Where an industry was composed of numerous independent units, Congress appeared anxious to preserve this structure. The Senate Report, quoting with approval from the Federal Trade Commission's 1948 report on the merger movement, states explicitly that amended § 7 is addressed, inter alia, to the following problem: Under the Sherman Act, an acquisition is unlawful if it creates a monopoly or constitutes an attempt to monopolize. Imminent monopoly may appear when one large concern acquires another, but it is unlikely to be perceived in a small acquisition by a large enterprise. As a large concern grows through a series of such small acquisitions, its accretions of power are individually so minute as to make it difficult to use the Sherman Act test against them. . . . Where several large enterprises are extending their power by successive small acquisitions, the cumulative effect of their purchases may be to convert an industry from one of intense competition among many enterprises to one in which three or four large concerns produce the entire supply. S. Rep. No. 1775, 81st Cong., 2d Sess. 5. [61] And see H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. The District Court's findings, and the record facts, many of them set forth in Part I of this opinion, convince us that the shoe industry is being subjected to just such a cumulative series of vertical mergers which, if left unchecked, will be likely substantially to lessen competition. We reach this conclusion because the trend toward vertical integration in the shoe industry, when combined with Brown's avowed policy of forcing its own shoes upon its retail subsidiaries, may foreclose competition from a substantial share of the markets for men's, women's, and children's shoes, without producing any countervailing competitive, economic, or social advantages.",the vertical aspects of the merger.
+295,106440,1,5,"An economic arrangement between companies performing similar functions in the production or sale of comparable goods or services is characterized as horizontal. The effect on competition of such an arrangement depends, of course, upon its character and scope. Thus, its validity in the face of the antitrust laws will depend upon such factors as: the relative size and number of the parties to the arrangement; whether it allocates shares of the market among the parties; whether it fixes prices at which the parties will sell their product; or whether it absorbs or insulates competitors. [62] Where the arrangement effects a horizontal merger between companies occupying the same product and geographic market, whatever competition previously may have existed in that market between the parties to the merger is eliminated. Section 7 of the Clayton Act, prior to its amendment, focused upon this aspect of horizontal combinations by proscribing acquisitions which might result in a lessening of competition between the acquiring and the acquired companies. [63] The 1950 amendments made plain Congress' intent that the validity of such combinations was to be gauged on a broader scale: their effect on competition generally in an economically significant market. Thus, again, the proper definition of the market is a necessary predicate to an examination of the competition that may be affected by the horizontal aspects of the merger. The acquisition of Kinney by Brown resulted in a horizontal combination at both the manufacturing and retailing levels of their businesses. Although the District Court found that the merger of Brown's and Kinney's manufacturing facilities was economically too insignificant to come within the prohibitions of the Clayton Act, the Government has not appealed from this portion of the lower court's decision. Therefore, we have no occasion to express our views with respect to that finding. On the other hand, appellant does contest the District Court's finding that the merger of the companies' retail outlets may tend substantially to lessen competition. The Product Market. Shoes are sold in the United States in retail shoe stores and in shoe departments of general stores. These outlets sell: (1) men's shoes, (2) women's shoes, (3) women's or children's shoes, or (4) men's, women's or children's shoes. Prior to the merger, both Brown and Kinney sold their shoes in competition with one another through the enumerated kinds of outlets characteristic of the industry. In Part IV of this opinion we hold that the District Court correctly defined men's, women's, and children's shoes as the relevant lines of commerce in which to analyze the vertical aspects of the merger. For the reasons there stated we also hold that the same lines of commerce are appropriate for considering the horizontal aspects of the merger. The Geographic Market. The criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. See S. Rep. No. 1775, 81st Cong., 2d Sess. 5-6; United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 593. Moreover, just as a product submarket may have § 7 significance as the proper line of commerce, so may a geographic submarket be considered the appropriate section of the country. Erie Sand & Gravel Co. v. Federal Trade Comm'n, 291 F. 2d 279, 283 (C. A. 3d Cir.); United States v. Bethlehem Steel Corp., 168 F. Supp. 576, 595-603 (D. C. S. D. N. Y.). Congress prescribed a pragmatic, factual approach to the definition of the relevant market and not a formal, legalistic one. The geographic market selected must, therefore, both correspond to the commercial realities [64] of the industry and be economically significant. Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area. United States v. Columbia Pictures Corp., 189 F. Supp. 153, 193-194 (D. C. S. D. N. Y.); United States v. Maryland & Virginia Milk Producers Assn., 167 F. Supp. 799 (D. C. D. C.), affirmed, 362 U. S. 458. The fact that two merging firms have competed directly on the horizontal level in but a fraction of the geographic markets in which either has operated, does not, in itself, place their merger outside the scope of § 7. That section speaks of any . . . section of the country, and if anticompetitive effects of a merger are probable in any significant market, the merger—at least to that extent— is proscribed. [65] The parties do not dispute the findings of the District Court that the Nation as a whole is the relevant geographic market for measuring the anticompetitive effects of the merger viewed vertically or of the horizontal merger of Brown's and Kinney's manufacturing facilities. As to the retail level, however, they disagree. The District Court found that the effects of this aspect of the merger must be analyzed in every city with a population exceeding 10,000 and its immediate contiguous surrounding territory in which both Brown and Kinney sold shoes at retail through stores they either owned or controlled. [66] By this definition of the geographic market, less than one-half of all the cities in which either Brown or Kinney sold shoes through such outlets are represented. The appellant recognizes that if the District Court's characterization of the relevant market is proper, the number of markets in which both Brown and Kinney have outlets is sufficiently numerous so that the validity of the entire merger is properly judged by testing its effects in those markets. However, it is appellant's contention that the areas of effective competition in shoe retailing were improperly defined by the District Court. It claims that such areas should, in some cases, be defined so as to include only the central business districts of large cities, and in others, so as to encompass the standard metropolitan areas within which smaller communities are found. It argues that any test failing to distinguish between these competitive situations is improper. We believe, however, that the record fully supports the District Court's findings that shoe stores in the outskirts of cities compete effectively with stores in central downtown areas, and that while there is undoubtedly some commercial intercourse between smaller communities within a single standard metropolitan area, the most intense and important competition in retail sales will be confined to stores within the particular communities in such an area and their immediate environs. [67] We therefore agree that the District Court properly defined the relevant geographic markets in which to analyze this merger as those cities with a population exceeding 10,000 and their environs in which both Brown and Kinney retailed shoes through their own outlets. Such markets are large enough to include the downtown shops and suburban shopping centers in areas contiguous to the city, which are the important competitive factors, and yet are small enough to exclude stores beyond the immediate environs of the city, which are of little competitive significance. The Probable Effect of the Merger. Having delineated the product and geographic markets within which the effects of this merger are to be measured, we turn to an examination of the District Court's finding that as a result of the merger competition in the retailing of men's, women's and children's shoes may be lessened substantially in those cities in which both Brown and Kinney stores are located. We note, initially, that appellant challenges this finding on a number of grounds other than those discussed above and on grounds independent of the critical question of whether competition may, in fact, be lessened. Thus, Brown objects that the District Court did not examine the competitive picture in each line of commerce and each section of the country it had defined as appropriate. It says the Court erred in failing to enter findings with respect to each relevant city assessing the anticompetitive effect of the merger on the retail sale of, for example, men's shoes in Council Bluffs, men's shoes in Texas City, women's shoes in Texas City and children's shoes in St. Paul. Even assuming a representative sample could properly be used, Brown also objects that the District Court's detailed analysis of competition in shoe retailing was limited to a single city—St. Louis—a city in which Kinney did not operate. The appellant says this analysis could not be sufficiently representative to establish a standard image of the shoe trade which could be applied to each of the more than 100 cities in which Brown and Kinney sold shoes, particularly as some of those cities were much smaller than St. Louis, others were larger, some were in different climates and others were in areas having different median per capita incomes. However, we believe the record is adequate to support the findings of the District Court. While it is true that the court concentrated its attention on the structure of competition in the city in which it sat and as to which detailed evidence was most readily available, it also heard witnesses from no less than 40 other cities in which the parties to the merger operated. The court was careful to point out that it was on the basis of all the evidence that it reached its conclusions concerning the boundaries of the relevant markets and the merger's effects on competition within them. We recognize that variations of size, climate and wealth as enumerated by Brown exist in the relevant markets. However, we agree with the court below that the markets with respect to which evidence was received provide a fair sampling of all the areas in which the impact of this merger is to be measured. The appellant has not shown how the variables it has mentioned could affect the structure of competition within any particular market so as to require a change in the conclusions drawn by the District Court. Each competitor within a given market is equally affected by these factors, even though the city in which he does business may differ from St. Louis in size, climate or wealth. Thus, we believe the District Court properly reached its conclusions on the basis of the evidence available to it. There is no reason to protract already complex antitrust litigation by detailed analyses of peripheral economic facts, if the basic issues of the case may be determined through study of a fair sample. [68] In the case before us, not only was a fair sample used to demonstrate the soundness of the District Court's conclusions, but evidence of record fully substantiates those findings as to each relevant market. An analysis of undisputed statistics of sales of shoes in the cities in which both Brown and Kinney sell shoes at retail, separated into the appropriate lines of commerce, provides a persuasive factual foundation upon which the required prognosis of the merger's effects may be built. Although Brown objects to some details in the Government's computations used in drafting these exhibits, appellant cannot deny the correctness of the more general picture they reveal. [69] We have appended the exhibits to this opinion. They show, for example, that during 1955 in 32 separate cities, ranging in size and location from Topeka, Kansas, to Batavia, New York, and Hobbs, New Mexico, the combined share of Brown and Kinney sales of women's shoes (by unit volume) exceeded 20%. [70] In 31 cities—some the same as those used in measuring the effect of the merger in the women's line—the combined share of children's shoes sales exceeded 20%; in 6 cities their share exceeded 40%. In Dodge City, Kansas, their combined share of the market for women's shoes was over 57%; their share of the children's shoe market in that city was 49%. In the 7 cities in which Brown's and Kinney's combined shares of the market for women's shoes were greatest (ranging from 33% to 57%) each of the parties alone, prior to the merger, had captured substantial portions of those markets (ranging from 13% to 34%); the merger intensified this existing concentration. In 118 separate cities the combined shares of the market of Brown and Kinney in the sale of one of the relevant lines of commerce exceeded 5%. In 47 cities, their share exceeded 5% in all three lines. The market share which companies may control by merging is one of the most important factors to be considered when determining the probable effects of the combination on effective competition in the relevant market. [71] In an industry as fragmented as shoe retailing, the control of substantial shares of the trade in a city may have important effects on competition. If a merger achieving 5% control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares. The oligopoly Congress sought to avoid would then be furthered and it would be difficult to dissolve the combinations previously approved. Furthermore, in this fragmented industry, even if the combination controls but a small share of a particular market, the fact that this share is held by a large national chain can adversely affect competition. Testimony in the record from numerous independent retailers, based on their actual experience in the market, demonstrates that a strong, national chain of stores can insulate selected outlets from the vagaries of competition in particular locations and that the large chains can set and alter styles in footwear to an extent that renders the independents unable to maintain competitive inventories. A third significant aspect of this merger is that it creates a large national chain which is integrated with a manufacturing operation. The retail outlets of integrated companies, by eliminating wholesalers and by increasing the volume of purchases from the manufacturing division of the enterprise, can market their own brands at prices below those of competing independent retailers. Of course, some of the results of large integrated or chain operations are beneficial to consumers. Their expansion is not rendered unlawful by the mere fact that small independent stores may be adversely affected. It is competition, not competitors, which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision. Other factors to be considered in evaluating the probable effects of a merger in the relevant market lend additional support to the District Court's conclusion that this merger may substantially lessen competition. One such factor is the history of tendency toward concentration in the industry. [72] As we have previously pointed out, the shoe industry has, in recent years, been a prime example of such a trend. Most combinations have been between manufacturers and retailers, as each of the larger producers has sought to capture an increasing number of assured outlets for its wares. Although these mergers have been primarily vertical in their aim and effect, to the extent that they have brought ever greater numbers of retail outlets within fewer and fewer hands, they have had an additional important impact on the horizontal plane. By the merger in this case, the largest single group of retail stores still independent of one of the large manufacturers was absorbed into an already substantial aggregation of more or less controlled retail outlets. As a result of this merger, Brown moved into second place nationally in terms of retail stores directly owned. Including the stores on its franchise plan, the merger placed under Brown's control almost 1,600 shoe outlets, or about 7.2% of the Nation's retail shoe stores as defined by the Census Bureau, [73] and 2.3% of the Nation's total retail shoe outlets. [74] We cannot avoid the mandate of Congress that tendencies toward concentration in industry are to be curbed in their incipiency, particularly when those tendencies are being accelerated through giant steps striding across a hundred cities at a time. In the light of the trends in this industry we agree with the Government and the court below that this is an appropriate place at which to call a halt. At the same time appellant has presented no mitigating factors, such as the business failure or the inadequate resources of one of the parties that may have prevented it from maintaining its competitive position, nor a demonstrated need for combination to enable small companies to enter into a more meaningful competition with those dominating the relevant markets. On the basis of the record before us, we believe the Government sustained its burden of proof. We hold that the District Court was correct in concluding that this merger may tend to lessen competition substantially in the retail sale of men's, women's, and children's shoes in the overwhelming majority of those cities and their environs in which both Brown and Kinney sell through owned or controlled outlets. The judgment is Affirmed. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case.",the horizontal aspects of the merger.
+296,108580,1,1,"It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken's Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball's beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure. The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born. The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve clause; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or junior circuit, in 1901, rising from the minor Western Association; the first World Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966. [2] Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. [3] The list seems endless. And one recalls the appropriate reference to the World Serious, attributed to Ring Lardner, Sr.; Ernest L. Thayer's Casey at the Bat; [4] the ring of Tinker to Evers to Chance; [5] and all the other happenings, habits, and superstitions about and around baseball that made it the national pastime or, depending upon the point of view, the great American tragedy. [6]",the game
+297,108580,1,2,"The petitioner, Curtis Charles Flood, born in 1938, began his major league career in 1956 when he signed a contract with the Cincinnati Reds for a salary of $4,000 for the season. He had no attorney or agent to advise him on that occasion. He was traded to the St. Louis Cardinals before the 1958 season. Flood rose to fame as a center fielder with the Cardinals during the years 1958-1969. In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages. Flood's St. Louis compensation for the years shown was: 1961 $13,500 (including a bonus for signing) 1962 $16,000 1963 $17,500 1964 $23,000 1965 $35,000 1966 $45,000 1967 $50,000 1968 $72,000 1969 $90,000 These figures do not include any so-called fringe benefits or World Series shares. But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied. Flood then instituted this antitrust suit [7] in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary servitude contrary to the Thirteenth Amendment and 42 U. S. C. § 1994, 18 U. S. C. § 1581, and 29 U. S. C. §§ 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages. Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000. [8] Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then.",The Petitioner
+298,108580,1,4,"A. Federal Baseball Club v. National League, 259 U. S. 200 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U. S., at 201-206.",The Legal Background
+299,108580,2,1,"2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball. 3. Even though others might regard this as unrealistic, inconsistent, or illogical, see Radovich, 352 U. S., at 452, the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs. 4. Other professional sports operating interstate—football, boxing, basketball, and, presumably, hockey [19] and golf [20] —are not so exempt. 5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson. 6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241-242 (1970). 7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation. 8. The Court noted in Radovich, 352 U. S., at 452, that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century. This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively. Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency. The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national uniformity [is required] in any regulation of baseball and its reserve system. 316 F. Supp., at 280. The Court of Appeals, in affirming, stated, [A]s the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law. 443 F. 2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holdings in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law, [21] these statements adequately dispose of the state law claims. The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws. [22] We repeat for this case what was said in Toolson: Without re-examination of the underlying issues, the [judgment] below [is] affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws. 346 U. S., at 357. And what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action. The judgment of the Court of Appeals is Affirmed. MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion. MR. JUSTICE POWELL took no part in the consideration or decision of this case.",Professional baseball is a business and it is engaged in interstate commerce.
+300,105825,1,2,"We now turn to the claims against Compania Trasatlantica under the Jones Act and the general maritime law. In light of our recent decision in Lauritzen v. Larsen, 345 U. S. 571, these claims present the narrow issue, whether the maritime law of the United States may be applied in an action involving an injury sustained in an American port by a foreign seaman on board a foreign vessel in the course of a voyage beginning and ending in a foreign country. While Lauritzen v. Larsen involved claims asserted under the Jones Act, the principles on which it was decided did not derive from the terms of that statute. We pointed out that the Jones Act had been written not on a clean slate, but as a postscript to a long series of enactments governing shipping. All were enacted with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed to dealing with admiralty problems in reconciling our own with foreign interests and in accommodating the reach of our own laws to those of other maritime nations. 345 U. S., at 577. Thus the Jones Act was applied to foreign events, foreign ships and foreign seamen only in accordance with the usual doctrine and practices of maritime law. 345 U. S., at 581. The broad principles of choice of law and the applicable criteria of selection set forth in Lauritzen were intended to guide courts in the application of maritime law generally. Of course, due regard must be had for the differing interests advanced by varied aspects of maritime law. But the similarity in purpose and function of the Jones Act and the general maritime principles of compensation for personal injury, admit of no rational differentiation of treatment for choice of law purposes. Thus the reasoning of Lauritzen v. Larsen governs all claims here. [53] We are not here dealing with the sovereign power of the United States to apply its law to situations involving one or more foreign contacts. [54] But in the absence of a contrary congressional direction, we must apply those principles of choice of law that are consonant with the needs of a general federal maritime law and with due recognition of our self-regarding respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community. These principles do not depend upon a mechanical application of a doctrine like that of lex loci delicti commissi. The controlling considerations are the interacting interest of the United States and of foreign countries, and in assessing them we must move with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations. We need not repeat the exposition of the problem which we gave in Lauritzen v. Larsen . Due regard for the relevant factors we there enumerated, and the weight we indicated to be given to each, preclude application of American law to the claims here asserted. In this case, as in Lauritzen v. Larsen , the ship is of foreign registry and sails under a foreign flag. Both the injured seaman and the owner of the ship have a Spanish status: Romero is a Spanish subject and Compania Trasatlantica a Spanish corporation. Unlike the contract in Lauritzen, Romero's agreement of hire was entered into in Spain. By noting this fact, we do not mean to qualify our earlier view that the place of contracting is largely fortuitous and of little importance in determining the applicable law in an action of marine tort. Here, as in Lauritzen, the foreign law provides a remedy for the injury, and claims under that law may be conveniently asserted before the Spanish consul in New York. [55] In Lauritzen v. Larsen the injury occurred in the port of Havana and the action was brought in New York. Romero was injured while temporarily in American territorial waters. This difference does not call for a difference in result. Discussing the significance of the place of the wrongful act, we pointed out in Lauritzen that [t]he test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she may navigate. . . . the territorial standard is so unfitted to an enterprise conducted under many territorial rules and under none that it usually is modified by the more constant law of the flag. 345 U. S., at 583-584. Although the place of injury has often been deemed determinative of the choice of law in municipal conflict of laws, such a rule does not fit the accommodations that become relevant in fair and prudent regard for the interests of foreign nations in the regulation of their own ships and their own nationals, and the effect upon our interests of our treatment of the legitimate interests of foreign nations. To impose on ships the duty of shifting from one standard of compensation to another as the vessel passes the boundaries of territorial waters would be not only an onerous but also an unduly speculative burden, disruptive of international commerce and without basis in the expressed policies of this country. The amount and type of recovery which a foreign seaman may receive from his foreign employer while sailing on a foreign ship should not depend on the wholly fortuitous circumstance of the place of injury. Thus we hold that the considerations found in Lauritzen v. Larsen to preclude the assertion of a claim under the Jones Act apply equally here, and affirm the dismissal of petitioner's claims against Compania Trasatlantica.",the claims against compania trasatlantica the choice-of-law problem.
+301,105825,1,3,"(a) Petitioner made claims based both on the Jones Act and the general maritime law against Garcia & Diaz, Inc. At the pre-trial hearing the District Court concluded that Garcia & Diaz was not Romero's employer and did not operate and control the vessel at the time of the injury. These issues were properly adjudicated, and thus the claims for unseaworthiness and maintenance and cure were properly dismissed. However, the District Court did not consider, and its disposition of the case did not require it to consider, whether petitioner was asserting a claim based upon the negligence of Garcia & Diaz; a claim independent of the employment relationship or operation and control. Thus it is necessary to remand the case for further proceedings as to this respondent. (b) The claims against International Terminal Operating Co., and Quin Lumber Co., for a maritime tort, were dismissed for lack of jurisdiction. Our decision on the jurisdictional issues necessitates the return of the claims against these respondents for further adjudication. The judgment of the Court of Appeals is vacated and the cause remanded to the District Court for further proceedings not inconsistent with this opinion. Vacated and remanded.",the claims against the other respondents.
+302,108040,1,1,"In 1955 the Northern Lines began investigating anew the possibility of a merger that would combine five roads—the Burlington, the SP&S, the Pacific Coast, and the Northern Lines—to form a New Company. Extensive negotiations dealing with all phases of the proposed merger were commenced. Five years later, in 1960, an agreement was finally reached. It provided that the Northern Lines, the Burlington, and the Pacific Coast be merged into New Company, which was to acquire the subsidiaries of the merged companies as well as all their leasehold, trackage, and joint-use rights in other carriers and the terminals incident thereto. New Company would lease the SP&S, thereby acquiring that road's subsidiaries and trackage rights. The merger agreement further provided that Northern Pacific shareholders would receive common stock of New Company on a share-for-share basis. Great Northern stockholders would receive one share of New Company common for each share of Great Northern and, in addition, one-half share of New Company $10 par 5 1/2% preferred for each share of Great Northern held at the date of the merger, this preferred stock to be retired over a 25-year period, beginning at the fifth anniversary of the merger, and to be redeemable at the option of New Company any time after the fifth anniversary of the merger. The Burlington stock held by the Northern Lines, amounting to 97.18% of the total shares outstanding, would be canceled and the remaining shareholders given 3.25 shares of New Company common for each share of Burlington. Commission Proceedings First Report. —As a result of these renewed merger negotiations between 1955 and 1960, applications were filed in 1961 under § 5 of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U. S. C. § 5, seeking approval of the merger and authorization for the issuance of stock and securities, the assumption of obligations and other authority necessary to effectuate the merger. [5] Extensive public hearings were held in 1961 and 1962 at which the Department of Justice, the Department of Agriculture, various railway employee groups, nine States or state regulatory agencies, and the Milwaukee and the Chicago & North Western Railway Company (North Western), inter alia, actively opposed the merger as proposed. Shippers and related interest groups appeared in support of the proposal. The Hearing Examiner submitted a report in 1964 recommending approval of the merger and the related transactions, subject to certain protective conditions. The Commission heard oral argument and in a report dated March 31, 1966 (First Report), rejected the Examiner's recommendation and disapproved the merger by a vote of 6 to 5. [6] The applicants petitioned for a reconsideration, asserting that they were willing to accept all protective conditions sought by the Milwaukee and another affected road, the North Western, that they had entered into attrition agreements with the objecting unions for the protection of the employees, and that the merger would yield dollar savings greater than those estimated in the First Report. While this petition was pending before the Commission, the applicants entered into agreements with the North Western and the Milwaukee which provided that the merger applicants would agree to all the conditions sought by those roads; the Milwaukee and the North Western then agreed to support the merger. [7] Thereafter, these roads withdrew their opposition to the merger and urged the Commission to approve it. Approval was advocated or objections withdrawn by a number of parties who had previously either completely opposed the merger or opposed it absent imposition of adequate protective conditions. These included the Department of Agriculture, the Public Utility Commissioner of Oregon, and the States of North Dakota, South Dakota, Iowa, Wisconsin, and Michigan. [8] Second Report. —On January 4, 1967, the Commission granted the application and reopened the proceedings for reconsideration and further hearings. Although the order by its terms reopened the proceedings on all issues, the hearing was limited to taking evidence on the question of the amount of savings the merger would produce in light of the agreement between the applicants and the Milwaukee and the North Western, and the other changes relevant to savings which had occurred after the close of the first hearing. Oral arguments followed. On November 30, 1967, the Commission handed down a report and order (Second Report) approving the proposed merger by a vote of 8 to 2 as consistent with the public interest and imposing certain conditions to protect other carriers. [9] On April 11, 1968, the Commission denied an application for reconsideration. [10] District Court Proceedings The United States, acting through the Department of Justice, filed a complaint on May 9, 1968, in the United States District Court for the District of Columbia challenging the Commission order approving the merger. Other parties intervened, some as plaintiffs [11] and some as defendants. [12] After preliminary proceedings had resulted in a stay of the Commission's order pendente lite, the case was submitted on the merits to the three-judge court designated in accordance with 28 U. S. C. §§ 2325 and 2284. The court, in an opinion by Senior Circuit Judge Charles Fahy, unanimously sustained the Commission, holding that in approving the merger and the related transactions the Commission was guided by the applicable legal principles and that its findings were supported by substantial evidence. The court dismissed the complaints, vacated the stay pendente lite, and then stayed its order pending appeal to this Court. Upon the filing of appeals with this Court, we ordered a further stay pending final disposition.",The Present Merger
+303,108040,1,2,"Four appeals were taken from the District Court's judgment; the Department of Justice (No. 28), the Northern Pacific Stockholders' Protective Committee (No. 38), the City of Auburn, Washington (No. 43), and the Livingston Anti-Merger Committee (No. 44). Each of the four appellants attacks the approval of the merger on different grounds. Because these challenges cover every aspect of the merger, and because of the rather complex expositions of fact necessary to the disposition of each objection, these appeals will be dealt with seriatim. With the cases in this posture the Court must review the proceedings before the Commission to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence. Penn-Central Merger and N&W Inclusion Cases, 389 U. S. 486, 499 (1968). It should be emphasized, however, as Mr. Justice Fortas noted, speaking for the Court in a similar context, [w]ith respect to the merits of the merger . . . our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute. Id., at 498-499. The governing statute here is § 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U. S. C. § 5. The Act provides that the Commission is to approve a proposed merger when it is consistent with the public interest and the terms of the proposal are just and reasonable. In determining whether this standard is met, the Commission is to give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected. 49 U. S. C. § 5 (2) (c). In addition to the four factors listed above, the Commission must also consider the anticompetitive effects of any merger or consolidation, because under § 5 (11) of the Interstate Commerce Act any transaction approved by the Commission is relieved of the operation of the antitrust laws. McLean Trucking Co. v. United States, 321 U. S. 67, 83-87 (1944). In its First Report the Commission found that the merger would result in improved service to shippers in areas served by the Northern Lines because it would enable the roads to make more efficient use of their facilities and would permit the use of the shortest and swiftest internal routes available. In addition, the merger was found to afford estimated savings of approximately $25 million per year by the tenth year after merger. However, the Commission also found that as a consequence of the merger more than 5,200 jobs would be eliminated, this being a significant source of the reduced operating costs. The Commission then analyzed the anticompetitive impact of the proposal and found it would eliminate substantial competition between the Northern Lines in the Northern Tier. The Commission reasoned that even with protective conditions attached to the merger for the benefit of the Milwaukee, it would remain a weak carrier in the Northern Tier when compared with New Company. The Commission, by a vote of 6 to 5, as noted earlier, concluded that the proposed merger plan did not afford benefits of such scope and importance as to outweigh the lessening of rail competition in the Northern Tier; the merger was disapproved. When the Commission reopened the proceedings in 1967, it considered additional evidence including the changed positions of some of the major objectors, and new evidence on the savings to be realized from the merger; the Second Report was then issued. The Commission found that rather than the $25 million previously estimated, in fact more than $40 million per year in savings would be realized by the tenth year after merger. It also noted that agreements entered into by the applicants and their employees had removed objections of various unions to the merger and that no jobs would be eliminated except in the normal course of attrition. Aside from these changes, and the acceptance by the merger applicants of protective conditions sought by the Milwaukee, the record before the Commission was the same as that on which the First Report was based. The Second Report acknowledged that the First Report had failed to give appropriate weight to one of the aims of the national transportation policy and § 5 of the Interstate Commerce Act, to facilitate rail mergers consistent with the public interest in the development of a comprehensive national transport system, and that this had led the Commission to view the merger proposal too stringently. It then went on to re-examine the anticompetitive effects of the merger, weighing them against the savings and benefits to the public, shippers and the roads, and, accentuating the new and strengthened competitive posture of the Milwaukee, it concluded that the merger proposal should be approved because its benefits outweighed its anticompetitive effects in the Northern Tier region. That this was not an easy problem for the Commission is attested by the lengthy history of attempts to merge these lines which dates back three-quarters of a century. The efforts to establish a more unified rail transportation system in the Northern Tier represent a 20th century phase of the development of the American West; it brackets a period of enormous growth and change, and of new developments in transportation and public needs. Against this background it is not surprising that the members of the Commission were divided 6 to 5 against the merger on the First Report in 1966 and 8 to 2 in favor of the merger on the Second Report in 1967 after changes had been made in the plan to meet many of the objections raised. Nor is it remarkable that two great departments of government, each charged with responsibility to protect the public interest, took opposing positions; vigorous advocacy of divergent views on this difficult problem has narrowed and sharpened the issues and aided the Court in their resolution, ensuring that no factor which ought to be considered would elude our attention. Appellants' Contentions (a) No. 28, Department of Justice. —The United States, through the Antitrust Division of the Justice Department, challenges the Commission's approval of the merger primarily on the ground that the Commission in the Second Report did not properly apply the standard of § 5 (2) (b) of the Interstate Commerce Act in determining that the merger is consistent with the public interest. The Department contends that under the statute when a proposed merger will result in a substantial diminution of competition between two financially healthy, competing roads, its anticompetitive effects should preclude the approval of the merger absent a clear showing that a serious transportation need will be met or important public benefits will be provided beyond the savings and efficiencies that normally flow from a merger. The Department urges that the instant case presents a merger between two financially healthy carriers, each of which is the prime competitor of the other in the area served. Admittedly the Commission found in its First Report that the merger would result in a drastic lessening of competition. The Department argues that because no benefits are shown to flow from the merger beyond the economies and efficiencies normally resulting from unified operations, the Commission has not satisfied the statutory standard and that the District Court erred in refusing to enjoin the merger. The Department maintains that prior to 1920 the antitrust laws and their underlying policies applied with full force to railroads and that the Transportation Act of 1920, which commanded an affirmative development by the Commission of a nationwide plan for the consolidation of the railway properties of the continental United States into a limited number of systems, 41 Stat. 481, was primarily intended to promote the absorption of financially weak by strong carriers. To the extent that the 1920 Act did not intend to encourage rail mergers producing only the usual or normal kinds of merger benefits, the Department contends that the policies of the antitrust laws remain the guiding standard by which these consolidations are to be judged. The Transportation Act of 1940, according to the Department, did not alter this policy, but only eliminated the Commission's duty to formulate a national plan and to confine mergers to the four corners of this plan. The Department suggests that when the Commission is determining whether a merger or consolidation is consistent with the public interest, it must analyze the merger in terms of its anticompetitive impact and, if that impact would be great, then determine whether the merger is required by a serious transportation need or necessary to secure important public benefits. This standard, it urges, is consistent with both the legislative history of [§ 5] and, more generally, with the goal of substantial simplification of railroad systems that underlay the Transportation Acts of both 1920 and 1940. [13] The Department of Justice is correct in stating that one focal point of concern throughout the legislative consideration of the problems of railroads has been the weak carrier and its preservation through combination with the strong. Congress saw that as one—but only one—means to promote its objectives. The 1920 statute as a whole also embodied concern for economy and efficiency in rail operations. See Railroad Commission of California v. Southern Pacific Co., 264 U. S. 331, 341 (1924); Texas & Pacific R. Co. v. Gulf, Colorado & Santa Fe R. Co., 270 U. S. 266, 277 (1926); Texas v. United States, 292 U. S. 522, 530 (1934); United States v. Lowden, 308 U. S. 225, 232 (1939). Thus, a rail merger that furthers the development of a more efficient transportation unit and one that results in the joining of a sick with a strong carrier serve equally to promote the long-range objectives of Congress and, upon approval by the Commission, both are immunized from the operation of the antitrust laws. The policy of the 1920 Act has been consistently interpreted in this way. We find no basis for reading the congressional objective as confining these mergers to combinations by which the strong rescue the halt and the lame. In New York Central Securities Corp. v. United States, 287 U. S. 12 (1932), this Court cautioned that [t]he fact that the carriers' lines are parallel and competing cannot be deemed to affect the validity of the authority conferred upon the Commission.. . . The question whether the acquisition of control in the case of competing carriers will aid in preventing an injurious waste and in securing more efficient transportation service is thus committed to the judgment of the administrative agency upon the facts developed in the particular case. Id., at 25-26. Although this decision was prior to the passage of the Transportation Act of 1940, that Act in no way altered the basic policy [14] underlying the 1920 enactment. We recognized in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 319 (1954), that Congress adopted the recommendations of the Committee of Six when it passed the 1940 Transportation Act and relieved the Commission of its duty to promulgate a national railroad consolidation plan. That Committee's report recognized economies and efficiencies of operation as well as the elimination of circuitous routing to be benefits that could flow to the public through consolidations. [15] As recently as County of Marin v. United States, 356 U. S. 412 (1958), this Court observed: The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940 . . . was to facilitate merger and consolidation in the national transportation system. In the Transportation Act of 1920 the Congress had directed the Commission itself to take the initiative in developing a plan `for the consolidation of the railway properties of the continental United States into a limited number of systems,' 41 Stat. 481, but after 20 years of trial the approach appeared inadequate. The Transportation Act of 1940 extended § 5 to motor and water carriers, and relieved the Commission of its responsibility to initiate the unifications. `Instead, it authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness. . . .' (Emphasis added.) Schwabacher v. United States, 334 U. S. 182, 193 (1948). . . In short, the result of the Act was a change in the means, while the end remained the same. The very language of the amended `unification section' expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification. Id., at 416-418. (Emphasis in original.) (Footnotes omitted.) We turn now to consider the appropriate weight to be accorded by the Commission to antitrust policy in proceedings for approval of a merger. The role of antitrust policy under § 5 was discussed comprehensively and dispositively in McLean Trucking Co. v. United States, 321 U. S. 67 (1944), a case dealing with a merger of several large trucking companies. Since this Court has nowhere else dealt so definitively with this issue, the analysis by Mr. Justice Rutledge in the opinion for the Court merits extended quotation: The history of the development of the special national transportation policy suggests, quite apart from the explicit provision of § 5 (11), that the policies of the anti-trust laws determine 'the public interest' in railroad regulation only in a qualified way. And the altered emphasis in railroad legislation on achieving an adequate, efficient, and economical system of transportation through close supervision of business operations and practices rather than through heavy reliance on the enforcement of free competition in various phases of the business, cf. New York Central Securities Corp. v. United States, 287 U. S. 12, has its counterpart in motor carrier policy. . . . [T]here can be little doubt that the Commission is not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws. Congress authorized such consolidations because it recognized that in some circumstances they were appropriate for effectuation of the national transportation policy. It was informed that this policy would be furthered by `encouraging the organization of stronger units' in the motor carrier industry. And in authorizing those consolidations it did not import the general policies of the anti-trust laws as a measure of their permissibility. It in terms relieved participants in appropriate mergers from the requirements of those laws. § 5 (11). In doing so, it presumably took into account the fact that the business affected is subject to strict regulation and supervision, particularly with respect to rates charged the public—an effective safeguard against the evils attending monopoly, at which the Sherman Act is directed. Against this background, no other inference is possible but that, as a factor in determining the propriety of motor-carrier consolidations the preservation of competition among carriers, although still a value, is significant chiefly as it aids in the attainment of the objectives of the national transportation policy. Therefore, the Commission is not bound . . . to accede to the policies of the anti-trust laws . . . . Congress however neither has made the anti-trust laws wholly inapplicable to the transportation industry nor has authorized the Commission in passing on a proposed merger to ignore their policy. . . . Hence, the fact that the carriers participating in a properly authorized consolidation may obtain immunity from prosecution under the anti-trust laws in no sense relieves the Commission of its duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy. In short, the Commission must estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed consolidation and consider them along with the advantages of improved service, safer operation, lower costs, etc., to determine whether the consolidation will assist in effectuating the over-all transportation policy. Resolving these considerations is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the transportation industry. Congress left that task to the Commission . . . . `The wisdom and experience of that commission,' not of the courts, must determine whether the proposed consolidation is `consistent with the public interest.' [Citations omitted.] If the Commission did not exceed the statutory limits within which Congress confined its discretion and its findings are adequate and supported by evidence, it is not our function to upset its order. Id., at 83-88. (Footnotes omitted.) Accord, Minneapolis & St. L. R. Co. v. United States, 361 U. S. 173, 186-188 (1959); Seaboard Air Line R. Co. v. United States, 382 U. S. 154, 156-157 (1965); see Florida East Coast R. Co. v. United States, 259 F. Supp. 993 (D. C. M. D. Fla. 1966), aff'd per curiam, 386 U. S. 544 (1967). The Department urges that the Commission failed to give sufficient weight to the diminution of competition between the Northern Lines—in short, that it failed to strike the correct balance between antitrust objectives and the overall transportation needs that concern Congress. This contention tends to isolate individual factors that are to enter into the Commission's decision and view them as the controlling considerations. Competition is merely one consideration here, Penn-Central Merger and N&W Inclusion Cases, 389 U. S. 486, 500 (1968). And, we might add, it is a consideration that is implied and is in addition to the four specifically mentioned in § 5 (2) (c) of the statute. In our view the Commission, in both reports, exhibited a concern and sensitivity to the difficult task of accommodating the regulatory policy based on competition with the longrange policy of achieving carrier consolidations. Indeed, this led the Commission to disapprove the merger by a margin of one vote in 1966 after five years of study because of specified infirmities in the plan. The Commission reached a different conclusion by a decisive vote in 1967 on a supplemental record which reflected substantial changes in the merger plan. Our review, like that of the District Court, reveals substantial record evidence to support the Commission's determination that the conditions agreed to by the applicants, the attrition agreements with the employees, the enhanced savings found in the Second Report, and the service improvements to shippers and the public found in both the First and Second Reports outweighed the loss of competition between the Northern Lines. Striking the balance is for the Commission and we cannot say that it did so improperly. The benefits to the public from this merger are important and deserve elaboration. The Commission found that substantial service benefits would flow from the merger. Shippers will benefit from improved car supply, wider routing, better loading and unloading privileges, and improved tracing and claims service. New Company will be able to use the shortest and most efficient routes while eliminating yard interchange delays, thus providing shippers with faster service. The Commission found that the economics New Company will realize as a result of consolidating yards, repair facilities, and management, eliminating duplicate train services and pooling of cars and trains will result in lower rates to shippers and receivers. In addition, the opening of strategic gateways to the Milwaukee will remove artificial barriers to the development of new markets, sources of supply, and services. The Milwaukee objections prior to the First Report were based on the adverse impact of the merger on its competitive position and, in turn, on shippers and the public. Following the First Report the Northern Lines accepted conditions urged by the Milwaukee. Under the new conditions the posture of the Milwaukee, lying largely between the two Northerns and handicapped by limitations at both eastern and western terminals, will be greatly improved. Absent the protective conditions it would continue to be virtually strangled by the unified system; with them the Milwaukee gives prospect of affording substantial competition to the merged lines and will be placed in the position that at its inception it hoped to achieve. Its past failure to become a meaningful competitor came in large part because its lines did not reach into Portland, Oregon, or into the southwest terminal of the Northern Lines in California. In a strictly competitive situation it is understandable that neither of the Northern Lines would interchange traffic with the Milwaukee except on its own terms and this destined that the Milwaukee would fail to become a true transcontinental line even though its western terminus lay within a few miles of Portland with the latter's access to the sea. The Milwaukee north-south traffic on the West Coast was limited to the short run from Seattle to Longview, barely half the distance from the Canadian border to Washington's southern border. Moreover, westbound traffic destined for points on one of the Northern Lines was taken over by one of them at St. Paul or Minneapolis notwithstanding Milwaukee's line from there deep into Washington. In the proceedings prior to 1966 many objecting shippers joined the Milwaukee in pointing out that rates and limitations on Milwaukee's service precluded full use of the Milwaukee to the disadvantage of both shippers and the carrier. The conditions imposed by the Commission's Second Report will alter that situation and substantially enlarge the Milwaukee's competitive potential between St. Paul and Minneapolis and the West Coast due to enlargement of its long-haul capability. Shippers will be afforded more flexible service. Another condition attached to the Commission's approval will permit the Milwaukee to run lines from its present western terminus into Portland, giving it a link with the Southern Pacific. All this will enable the Milwaukee to compete with the Northern Lines for east-west traffic and some north-south traffic as well as linkage with Canadian carriers to the north, which was previously the exclusive domain of one or both of the Northerns. Other conditions of lesser consequence will buttress the newly designed competitive posture of the Milwaukee. The contention that the Commission failed to project an analysis of the relative position of the Milwaukee vis-à-vis the merged Northerns discounts the difficulty of precise forecasts and tends to overstate the need for such projections. The Commission can deal only in the probabilities that will arise from the Milwaukee's improved posture as a genuine competitor for traffic over a wide area, something it had never been able to achieve. After the merger it will afford shippers a choice of routes and service negating the idea that all rail competition will disappear in the Pacific Northwest. (b) No. 38, The Northern Pacific Stockholders' Protective Committee. —The Northern Pacific Stockholders' Protective Committee [16] has appealed the District Court's affirmance of the Commission's approval of the proposed merger's stock exchange provisions. To put each of the Committee's contentions in perspective requires that we describe the source of the Committee's concern and how the applicants dealt with it in reaching the present merger terms. The Committee's continuing opposition to the merger relates to Northern Pacific's land holdings. The Northern Pacific Railway Company holds more than two million acres in fee and has mineral rights in another six million acres. These lands are rich in natural resources, including coal, oil, and timber, and are important sources of income. The negotiations between the parties centered to a large extent on these lands. Northern Pacific's financial adviser had suggested that although Great Northern had a better history of earning power and its stock had generally sold at a level above that of Northern Pacific's, the large land holdings of the Northern Pacific with their vast resources were of sufficient worth to justify a share-for-share exchange ratio between the Great Northern and the Northern Pacific. The Great Northern, however, insisted on a 60-40 stock exchange ratio because of its traditional rail strength. After further negotiations the roads realized that the lands were a stumbling block to the merger and considered several modes of segregating them from Northern Pacific's rail properties. One was to create two classes of New Company stock, one being issued to Northern Pacific shareholders and representing the natural resource properties, and another being issued to both Great Northern and Northern Pacific shareholders and representing Northern Pacific's rail properties. The second solution considered was spinning off the natural resource lands into another corporation and using the proceeds from an issuance of its stock as a Northern Pacific contribution to the merger. Neither of these solutions was acceptable to the negotiators, the former because of the problems inherent in administering a corporation for two classes of stockholders with divergent interests, and the latter because of potential litigation with bondholders and adverse tax consequences to Northern Pacific. The negotiators concluded that the merger plan must include the land holdings of Northern Pacific. Thereafter both roads made concessions, the Great Northern abandoning its claim for a permanently larger share for its stockholders and the Northern Pacific abandoning its claim for immediate equality. The result was an exchange ratio giving immediate recognition to Great Northern's greater earning power and historically higher market price while giving Northern Pacific's shareholders equal participation in the earnings of the enterprise on a long-term basis. The terms of the merger, as worked out by the negotiators over a five-year period, were approved by both roads' financial advisors, their boards of directors and their stockholders. [17] Shortly thereafter the Northern Pacific Stockholders' Protective Committee was formed. When the merger proposal was submitted to the Commission for approval the Stockholders' Committee opposed the exchange ratio, pressing its claim that the natural resource lands were undervalued and that the Commission either should adjust the exchange ratio in accordance with the Committee's estimates of the property's worth or, preferably, should order the lands segregated and placed in a separate corporation, the stock of which would be available to Northern Pacific shareholders. The Hearing Examiner's report reviewed the extensive negotiations between the parties and the modes by which they reached a valuation of the contribution each road's shareholders were making to New Company, concluding that there had been good-faith arm's-length bargaining and that the result of this bargaining fairly reflected each group of stockholders' contribution to New Company. The Examiner found the Committee's contention on value to be unsupported by record evidence and its spinoff proposal to be unfair to Northern Pacific shareholders. He recommended approval of the terms of the exchange. The Commission's First Report, which disapproved the merger, did not reach the issue of the exchange ratio. When in 1967 the Commission reconsidered its earlier decision, it refused the Committee's request that it reopen the record for the taking of new evidence on the exchange ratio, but did not hear oral argument on the matter. The Committee again pressed its contentions. The Commission's Second Report rejected the Committee's arguments upon basically the same grounds given by the Hearing Examiner in his 1964 Report. The Committee continued its attack on the stock exchange ratio in the District Court and urged that the Commission had abused its discretion in refusing to reopen the record to receive updated evidence on the exchange ratio. The District Court ruled that the Commission's finding that the terms were just and reasonable was supported by substantial evidence. It also held that the evidence the Committee proffered was not of sufficient importance to have affected the ultimate fairness of the Commission's finding. The discretion exercised by the Commission in refusing to reopen the record was, therefore, found free from abuse. The Committee now contends that the record lacks substantial evidence to support the Commission's determination that the exchange ratios are just and reasonable; that the Commission failed to consider the whole record before it; that the Commission erred, abused its discretion, or denied appellant due process of law in not permitting the record to be updated respecting the 1967 worth of the contributions being made by each group of shareholders, especially respecting Northern Pacific's natural resource properties; that the record does not contain substantial evidence to support the determination of the Commission that the proposed segregation of the natural resource lands is a proposal lacking merit and is unfair to Northern Pacific shareholders; and that the District Court erred in upholding the Commission's action. Our review leads us to reject these contentions. Under § 5 (2) of the Interstate Commerce Act, the Commission is to approve only such merger terms as it finds to be just and reasonable. The Commission, as had the negotiators and the Hearing Examiner, fully considered the proposed segregation of the natural resource properties and concluded that it was neither feasible nor fair to Northern Pacific stockholders. That determination is supported by substantial record evidence. In passing we note that although the Commission in fulfilling its statutory responsibilities is to carefully review all of the terms of a merger proposal and determine whether they are just and reasonable, it is not for the agency, much less the courts, to dictate the terms of the merger agreement once this standard has been met. It can hardly be argued that the bargaining parties were not capable of protecting their own interests. The Commission's unwillingness to reopen the record in 1967 for the taking of new evidence on the exchange ratio was not an abuse of discretion nor did it deny the appellant due process of law. What this Court said in Interstate Commerce Commission v. Jersey City, 322 U. S. 503 (1944), is applicable here: Administrative consideration of evidence—particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it—always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearing, as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body. Id., at 514-515. Moreover, as this Court noted in United States v. Pierce Auto Freight Lines, 327 U. S. 515 (1946), it has been held consistently that rehearings before administrative bodies are addressed to their own discretion. . . . Only a showing of the clearest abuse of discretion could sustain an exception to that rule. Id., at 535. We find nothing in the Committee's arguments to persuade us that such an abuse occurred when the Commission refused to take further evidence on the question of each group of shareholders' contribution to the merger. Schwabacher v. United States, 334 U. S. 182 (1948), relied upon by the Committee, is not to the contrary. That decision requires that the value of a stockholder's contribution to a merger be determined in accord with the current worth of his equity. That does not mean there must be a repeated updating of the evidence before the agency; in a complex merger such as this that would lead to interminable delay. A determination that the terms of a merger proposal fairly reflect the current worth of each shareholder's contribution meets the standards of Schwabacher if the agency had before it evidence as to the worth of the shareholders' contributions at the time of the submission of the proposal, and there is no showing that subsequent events have materially altered the worth of the various shareholders' contributions to the merger. The evidence the appellant Committee presents to this Court, purporting to show that Northern Pacific's stock is presently worth considerably more, vis-à-vis Great Northern's, than was the case at the time of the initial hearings, does show fluctuations in the worth of the two companies' stock. But we cannot say that those fluctuations, in the context of this merger proposal, are sufficient to show that the worth of the various shareholders' contributions to the merger has been materially altered. We agree with the District Court that the Commission's refusal to reopen the record for further evidence was not an abuse of discretion. (c) No. 43, City of Auburn. —The City of Auburn, Washington, opposes the merger for the reasons set out in the brief of the Department of Justice, and, in addition, contends that the Commission failed to adequately assess the impact of the merger upon affected communities and explain why the benefits of the merger convincingly outweigh its adverse effects on these communities. Auburn also objects to the refusal to open the 1967 hearings for further testimony concerning the impact of the merger upon Auburn. Auburn is a city of 19,000 inhabitants in western Washington, halfway between Seattle and Tacoma, which serves as the western terminus for the Northern Pacific's transcontinental trains. A substantial part of the city's economy is dependent upon that road's activity there. The record before the Commission indicated that if the merger were approved, the Auburn yard would be closed, and that the town of Everett, on the other side of Seattle, would become the western terminus for all of New Company's transcontinental trains. Insofar as the city challenges the Commission's action on the same grounds as the Department of Justice, our disposition of the appeal in No. 28 applies here. As for the 1967 hearings, the city failed to object to the scope of the Commission's reopened hearings and made no attempt to present evidence at those hearings. Neither did it challenge the Commission's findings concerning the impact of the merger upon Auburn. Only when it came before the District Court did it raise its contentions. This alone might preclude its attack on the merger. But we need not decide that issue because we find that the Commission did not abuse its discretion in refusing to take evidence in 1967 as to the impact of the merger on Auburn. In the record upon which the Second Report is based the Commission had evidence of the impact of the yard's closing on the city. Thus, even assuming the closing, the Commission found that the long-run effect of the merger would be to benefit communities in the Northern Tier, such as Auburn, and that the brief and transitory dislocations the merger would occasion were not sufficient to outweigh the merger's benefits. We find this to be a justifiable conclusion supported by substantial evidence on the record. We can hardly imagine any merger of substantial carriers that would not cause some dislocations to some shippers, some communities, and some employees. The plans for the Auburn yard now seem to be altered; the applicants stated before the District Court and again before this Court that they now intend to maintain the Auburn yard. As a result, employment in Auburn will be largely unaffected by the merger. Since we conclude that the Commission properly determined that Auburn's hardships and those of communities similarly situated, as posited on the record, did not warrant disapproval of the merger, it is difficult to imagine any basis upon which we might find the Commission to have abused its discretion in not taking further evidence on the merger's impact on Auburn when the principal harm of which the city earlier complained has disappeared. (d) No. 44, Livingston Anti-Merger Committee. —Citizens of Montana, living in and about Livingston, Helena, and Glendive, who appear here as the Livingston, Anti-Merger Committee, attack the merger on several grounds. As a prelude to discussing these contentions, the historical facts upon which the Committee's attack is based should be stated. In 1864 Congress created the Northern Pacific Railroad Company (Railroad) and granted it authority to build a railroad from Lake Superior to Puget Sound. To subsidize this enterprise Congress granted Railroad a right-of-way and alternate sections of land along that right-of-way. According to the terms of Railroad's charter it could not encumber its franchise or right-of-way without congressional approval, and was not authorized to merge with another road, except under limited conditions not relevant here. [18] In 1870 Congress passed a resolution allowing Railroad to issue bonds secured by its property and subject to foreclosure for default. Shortly thereafter a mortgage was pledged, only to be foreclosed in 1875. After the foreclosure proceedings the property was struck off to a committee of bondholders. Later, however, the property was returned to Railroad pursuant to a reorganization plan. Although Congress did not further authorize mortgaging of the franchise or right-of-way, Railroad again encumbered its property by pledging several mortgages. In 1896, after these mortgages had been defaulted upon and foreclosure proceedings had been commenced, a negotiated settlement was made which resulted in the property of Railroad being sold to the Northern Pacific Railway Company (Railway), which has operated under Railroad's franchise and upon its right-of-way ever since. Railway presently owns 97% of the stock of Railroad, which is no longer an operating company. On the basis of these facts Livingston contends that the Interstate Commerce Commission had no authority to approve the proposed merger because Railway does not own the franchise and right-of-way involved in this merger, and Railroad is not a party to the merger. Livingston argues that the 1896 foreclosure was a sham and it actually was a sale of Railroad property to Railway; because Congress never authorized that sale, it is void. In addition, Livingston contends that the mortgages that led to the 1896 foreclosure were not authorized by Congress; therefore, they could not constitute the basis for a valid foreclosure and liquidation. The claimed consequence is that the title to the franchise and right-of-way remains in Railroad. Livingston argues that even if it should be held that Railway does own the franchise and right-of-way, under the 1864 charter of Railroad, to which Railway succeeded, no merger involving these properties can take place without congressional approval, and such approval has not been procured. Finally, Livingston urges that the Commission and the District Court failed to properly deal with these contentions and make specific findings as to the Commission's jurisdiction. The Commission was presented with these arguments and found them to be without merit. The District Court affirmed the Commission, ruling that it had not erred in refusing to disapprove the merger because of appellant's claims and had not erred in refusing to litigate their merits. We affirm the District Court. Section 5 (2) (a) of the Interstate Commerce Act provides in pertinent part: (a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph— (i) for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership . . . . 49 U. S. C. § 5 (2) (a). The premise of Livingston's position is that under this statute before the Commission can assume jurisdiction over a merger application it must determine that the applicants have proper legal title to the rights and property which they seek to bring into the merger. This is an erroneous assumption. The Commission is not required to deal with the subtleties of good title before assuming jurisdiction over a § 5 matter. Cf. O. C. Wiley & Sons v. United States, 85 F. Supp. 542, 543-545 (D. C. W. D. Va.), aff'd per curiam, 388 U. S. 902 (1949); Walker v. United States, 208 F. Supp. 388, 396 (D. C. W. D. Tex. 1962); Interstate Investors, Inc. v. United States, 287 F. Supp. 374, 392 n. 32 (D. C. S. D. N. Y. 1968), aff'd per curiam, 393 U. S. 479 (1969). And because a Commission order under § 5 (2) is permissive, not mandatory. New York Central Securities Corp. v. United States, 287 U. S. 12, 26-27 (1932), the approval of a merger proposal does not amount to an adjudication of any such questions. These are matters for the courts, not for an agency that has responsibility in the realm of regulating transportation systems. In the instant case there were ample grounds for the Commission's assumption of jurisdiction over the applicants. Although the validity of Railway's claim that it is Railroad's successor in interest and has good title to all of Railroad's rights and properties has never been judicially determined, this Court has impliedly recognized it several times. In Northern Pacific R. Co. v. Boyd, 228 U. S. 482 (1913), we held that a creditor of Railroad had an assertable claim against the equity of Railroad's shareholders represented by Railway's assets because the foreclosure amounted to little more than a judicially approved reorganization in which the shareholders of the old company became the shareholders of the new. As against a bona fide creditor of Railroad, we found the judicial sale ineffective to bar his rights. However, we also stated that [a]s between the parties and the public generally, the sale was valid. . . . [T]he Northern Pacific Railroad was divested of the legal title [to its properties]. . . . Id., at 506. In United States v. Northern Pacific R. Co., 311 U. S. 317 (1940), we described some of the history of the appellee company as follows: Pursuant to foreclosure proceedings the Northern Pacific Railway Company acquired title to the railroad, the land grant, and all other property of the original corporation and has since operated the road and obtained patents for millions of acres under the land grants. Id., at 328. In addition, Attorney General Harmon in 1897 advised the Secretary of the Interior that Railway had a right, as successor in interest of Railroad, to patents of land grants made to Railroad. 21 Op. Atty. Gen. 486. The Secretary of the Interior thereafter treated Railway as Railroad's legal successor and patented large amounts of land to Railway. When in 1905 the then Secretary of the Interior asked then Attorney General Moody, later an Associate Justice of this Court, about the right of Railway to Railroad's land grants, Mr. Moody, after investigating the matter, reaffirmed his predecessor's conclusion that Railway was Railroad's legitimate successor in interest. 25 Op. Atty. Gen. 401. In 1954 a committee of Railroad's minority shareholders sued Railway seeking to have the 1896 foreclosure set aside and all titles and franchises declared to be in Railroad and to obtain an accounting from Railway for all properties and profits received from 1896 through 1954. In an exhaustive opinion Judge Edward A. Tamm of the United States District Court for the District of Columbia held the action barred by laches and dismissed the complaint. Landell v. Northern Pacific R. Co., 122 F. Supp. 253 (D. C. D. C. 1954), aff'd, 96 U. S. App. D. C. 24, 223 F. 2d 316, cert. denied, 350 U. S. 844 (1955). In this context we think the Commission did not err in assuming jurisdiction over the applicants while refusing to adjudicate the merits of Railway's title. As the District Court stated, [f]or purposes of merger proceedings it could rely on the existing judicial records . . . supplemented by the opinions of two Attorneys General. [19] We are then faced with the contention of Livingston that Railway is prohibited from participating in the merger and that the Commission is barred from approving it by the terms of Railroad's charter. That charter does not authorize Railroad to merge with the applicant companies and prohibits the mortgaging of its property in the absence of congressional consent. If Railway is Railroad's successor in interest, Livingston contends, it is bound by the provisions of Railroad's charter, and those provisions would be violated by the proposed merger and issuance of securities incident thereto. Livingston argues that because the Act chartering Railroad is a law as much as it is a grant, see Oregon & California R. Co. v. United States, 238 U. S. 393, 427 (1915), it is binding upon the Commission and makes the Commission's approval of the merger unlawful. Livingston relies upon Union Pacific R. Co. v. Mason City & Fort Dodge R. Co., 199 U. S. 160 (1905), as standing for the proposition that statutory restrictions on a predecessor federal railroad company survive a foreclosure sale and apply to a successor private railroad company operating on the original company's rights and franchise. We do not find the Mason City decision to be controlling, despite its somewhat similar legal and factual context. In 1862 Congress chartered the Union Pacific Railroad Company and authorized it to build a transcontinental railroad. In 1865 Railroad, pursuant to congressional authorization, pledged a mortgage secured by its right-of-way and franchise to gain monies necessary for construction. In 1871 Congress granted Railroad authority to issue bonds for the construction of a bridge over the Missouri River, that grant being conditioned upon the bridge's being open for the use of all roads for a reasonable compensation, to be paid to the owner of the bridge. This condition was one generally inserted by Congress in statutes authorizing bridge construction. Sometime after the bridge was built the 1865 mortgage was foreclosed and the Union Pacific Railroad Company, a Utah corporation, purchased the assets of the federal corporation. It thereafter refused to allow any but its own trains to use the bridge, contending that as purchaser under the foreclosure of the 1865 mortgage, it was not bound by the 1871 statute's conditions. This Court rejected that contention and concluded that the conditions applied to the Utah corporation, reasoning that the purpose of Congress in authorizing the construction of the bridge required that the conditions appended to that authorization attach to the bridge and bind its owner. The instant case is quite different. Here the provisions of the charter of Northern Pacific Railroad Company which are urged to bar this merger were directed only to the operations of the federal corporation, not to the operation of the railroad. Thus, when the corporation's property was sold to another, the conditions of which Livingston speaks did not follow that property into the hands of the successor corporation. It therefore follows that the statute creating the Northern Pacific Railroad Company did not bar the Interstate Commerce Commission from authorizing a merger involving the Northern Pacific Railway Company, a Wisconsin corporation. [20] We find that the Commission acted within its authority in assuming jurisdiction over the instant merger proposal and that Railway is not barred by the statute from participating in that merger. We have considered Livingston's other contentions and find them to be without merit.",The Appeals Here
+304,109380,1,1,"The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions on political contributions and expenditures that apply broadly to all phases of and all participants in the election process. The major contribution and expenditure limitations in the Act prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign [12] and from spending more than $1,000 a year relative to a clearly identified candidate. [13] Other provisions restrict a candidate's use of personal and family resources in his campaign [14] and limit the overall amount that can be spent by a candidate in campaigning for federal office. [15] The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case. [16] Thus, the critical constitutional questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.
+The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to the exposition of ideas, Winters v. New York, 333 U. S. 507, 510 (1948), there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . . Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office. The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958), stemmed from the Court's recognition that [e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association. Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee  `freedom to associate with others for the common advancement of political beliefs and ideas,'  a freedom that encompasses  `[t]he right to associate with the political party of one's choice.'  Kusper v. Pontikes, 414 U. S. 51, 56, 57 (1973), quoted in Cousins v. Wigoda, 419 U. S. 477, 487 (1975). It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act's limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct. In upholding the constitutional validity of the Act's contribution and expenditure provisions on the ground that those provisions should be viewed as regulating conduct, not speech, the Court of Appeals relied upon United States v. O'Brien, 391 U. S. 367 (1968). See 171 U. S. App. D. C., at 191, 519 F. 2d, at 840. The O'Brien case involved a defendant's claim that the First Amendment prohibited his prosecution for burning his draft card because his act was  `symbolic speech'  engaged in as a  `demonstration against the war and against the draft.'  391 U. S., at 376. On the assumption that the alleged communicative element in O'Brien's conduct [was] sufficient to bring into play the First Amendment, the Court sustained the conviction because it found a sufficiently important governmental interest in regulating the non-speech element that was unrelated to the suppression of free expression and that had an incidental restriction on alleged First Amendment freedoms . . . no greater than [was] essential to the furtherance of that interest. Id., at 376-377. The Court expressly emphasized that O'Brien was not a case where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. Id., at 382. We cannot share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non speech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U. S. 809, 820 (1975); New York Times Co. v. Sullivan, supra, at 266. For example, in Cox v. Louisiana, 379 U. S. 559 (1965), the Court contrasted picketing and parading with a newspaper comment and a telegram by a citizen to a public official. The parading and picketing activities were said to constitute conduct intertwined with expression and association, whereas the newspaper comment and the telegram were described as a pure form of expression involving free speech alone rather than expression mixed with particular conduct. Id., at 563-564. Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O'Brien test because the governmental interests advanced in support of the Act involve suppressing communication. The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System's administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged conduct of giving or spending money arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. 391 U. S., at 382. Nor can the Act's contribution and expenditure limitations be sustained, as some of the parties suggest, by reference to the constitutional principles reflected in such decisions as Cox v. Louisiana, supra ; Adderley v. Florida, 385 U. S. 39 (1966); and Kovacs v. Cooper, 336 U. S. 77 (1949). Those cases stand for the proposition that the government may adopt reasonable time, place, and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. See Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975). In contrast to O'Brien, where the method of expression was held to be subject to prohibition, Cox, Adderley, and Kovacs involved place or manner restrictions on legitimate modes of expression—picketing, parading, demonstrating, and using a soundtruck. The critical difference between this case and those time, place, and manner cases is that the present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed. [17] A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. [18] This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech. The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending relative to a clearly identified candidate, 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press [19] from any significant use of the most effective modes of communication. [20] Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns [21] and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling. By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. [22] A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor. Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations. [23] The overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression. The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures relative to a clearly identified candidate precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U. S., at 460. The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression is simultaneously an interference with the freedom of [their] adherents, Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion). See Cousins v. Wigoda, 419 U. S., at 487-488; NAACP v. Button, 371 U. S. 415, 431 (1963). In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.
+1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees Section 608 (b) provides, with certain limited exceptions, that no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000. The statute defines person broadly to include an individual, partnership, committee, association, corporation or any other organization or group of persons. § 591 (g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office. [24] §§ 591 (e) (1), (2). The $1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608 (b) (4), (6). [25] The restriction applies to aggregate amounts contributed to the candidate for each election—with primaries, runoff elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. § 608 (b) (5). Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.
+As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association. The Court's decisions involving associational freedoms establish that the right of association is a basic constitutional freedom, Kusper v. Pontikes, 414 U. S., at 57, that is closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. Shelton v. Tucker, 364 U. S. 479, 486 (1960). See, e. g., Bates v. Little Rock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama, supra, at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. NAACP v. Alabama, supra, at 460-461. Yet, it is clear that [n]either the right to associate nor the right to participate in political activities is absolute. CSC v. Letter Carriers, 413 U. S. 548, 567 (1973). Even a  `significant interference' with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at 488. Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Two ancillary interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. [26] Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money. [27] It is unnecessary to look beyond the Act's primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions —in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. [28] Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra , the Court found that the danger to fair and effective government posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent. 413 U. S., at 565. [29] Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with proven and suspected quid pro quo arrangements. But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, [30] Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions— the narrow aspect of political association where the actuality and potential for corruption have been identified —while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources. [31] Significantly, the Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties. We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.
+Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated. A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for statewide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns, [32] Congress' failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, [i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000. 171 U. S. App. D. C., at 193, 519 F. 2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U. S. 51 (1973), with Rosario v. Rockefeller, 410 U. S. 752 (1973).
+Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face. [33] In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U. S. 137 (1971). There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major-party challengers to incumbents. Challengers can and often do defeat incumbents in federal elections. [34] Major-party challengers in federal elections are usually men and women who are well known and influential in their community or State. Often such challengers are themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that major-party challengers as well as incumbents are capable of raising large sums for campaigning. [35] Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their incumbent rivals. [36] And, to the extent that incumbents generally are more likely than challengers to attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers as a class. [37] Contrary to the broad generalization drawn by the appellants, the practical impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess of the ceilings that, for various reasons, the candidates in that election would otherwise have received and the utility of these additional amounts to the candidates. To be sure, the limitations may have a significant effect on particular challengers or incumbents, but the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class. [38] Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both. The charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions. [39] Although there is some force to appellants' response that minor-party candidates are primarily concerned with their ability to amass the resources necessary to reach the electorate rather than with their funding position relative to their major-party opponents, the record is virtually devoid of support for the claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of minor-party and independent candidacies. [40] Moreover, any attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election. [41] In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face. 2. The $5,000 Limitation on Contributions by Political Committees Section 608 (b) (2) permits certain committees, designated as political committees, to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U. S. C. § 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to five or more candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona fide groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees. 3. Limitations on Volunteers' Incidental Expenses The Act excludes from the definition of contribution the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee. § 591 (e) (5) (A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expenses are expressly limited to (1) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities. § 591 (e) (5) (B); (2) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge [at least equal to cost but] less than the normal comparable charge, § 591 (e) (5) (C); and (3) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate, § 591 (e) (5) (D). If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse [42] without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign. [43] 4. The $25,000 Limitation on Total Contributions During any Calendar Year In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. § 608 (b) (3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.
+The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, [44] to an expenditure of $1,000 relative to a clearly identified candidate during a calendar year. § 608 (e) (1). Other expenditure ceilings limit spending by candidates, § 608 (a), their campaigns, § 608 (c), and political parties in connection with election campaigns, § 608 (f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression at the core of our electoral process and of the First Amendment freedoms. Williams v. Rhodes, 393 U. S. 23, 32 (1968).
+Section 608 (e) (1) provides that [n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000. [45] The plain effect of § 608 (e) (1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views relative to a clearly identified candidate through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement relative to a clearly identified candidate in a major metropolitan newspaper. [46] Before examining the interests advanced in support of § 608 (e) (1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague. [47] Close examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U. S. 566, 573 (1974); Cramp v. Board of Public Instruction, 368 U. S. 278, 287-288 (1961); Smith v. California, 361 U. S. 147, 151 (1959). [48] The test is whether the language of § 608 (e) (1) affords the [p]recision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms. NAACP v. Button, 371 U. S., at 438. The key operative language of the provision limits any expenditure . . . relative to a clearly identified candidate. Although expenditure, clearly identified, and candidate are defined in the Act, there is no definition clarifying what expenditures are relative to a candidate. The use of so indefinite a phrase as relative to a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608 (e) (1) make sufficiently explicit the range of expenditures covered by the limitation. The section prohibits any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds $1,000. (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase relative to a candidate to be read to mean advocating the election or defeat of a candidate. [49] But while such a construction of § 608 (e) (1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. [50] In an analogous context, this Court in Thomas v. Collins, 323 U. S. 516 (1945), observed: [W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. Id., at 535. See also United States v. Auto. Workers, 352 U. S. 567, 595-596 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes, J., dissenting). The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608 (e) (1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of clearly identified in § 608 (e) (2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication. [51] This is the reading of the provision suggested by the non-governmental appellees in arguing that [f]unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered. We agree that in order to preserve the provision against invalidation on vagueness grounds, § 608 (e) (1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office. [52] We turn then to the basic First Amendment question —whether § 608 (e) (1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that section 608 (e) is a loophole-closing provision only that is necessary to prevent circumvention of the contribution limitations. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. We cannot agree. The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608 (e) (1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression. We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608 (e) (1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608 (e) (1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608 (e) (1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U. S., at 220. Second, quite apart from the shortcomings of § 608 (e) (1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608 (e) (1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. [53] Section 608 (b)'s contribution ceilings rather than § 608 (e) (1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608 (e) (1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608 (e) (1) severely restricts all independent advocacy despite its substantially diminished potential for abuse. While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to  `speak one's mind . . . on all public institutions'  includes the right to engage in  `vigorous advocacy' no less than `abstract discussion.'  New York Times Co. v. Sullivan, 376 U. S., at 269, quoting Bridges v. California, 314 U. S. 252, 270 (1941), and NAACP v. Button, 371 U. S., at 429. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. [54] It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608 (e) (1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure `the widest possible dissemination of information from diverse and antagonistic sources,'  and  `to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'  New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U. S. 1, 20 (1945), and Roth v. United States, 354 U. S., at 484. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U. S. 127, 139 (1961). [55] The Court's decisions in Mills v. Alabama, 384 U. S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them. 384 U. S., at 215 (emphasis in original). We held that no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment. Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U. S., at 256-257. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608 (e) (1). [56] For the reasons stated, we conclude that § 608 (e) (1)'s independent expenditure limitation is unconstitutional under the First Amendment.
+The Act also sets limits on expenditures by a candidate from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year. § 608 (a) (1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives. [57] The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608 (e) (1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression. [58] The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country public discussion is a political duty, Whitney v. California, 274 U. S. 357, 375 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608 (a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms. The primary governmental interest served by the Act— the prevention of actual and apparent corruption of the political process—does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded: Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family. 171 U. S. App. D. C., at 206, 519 F. 2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed. [59] The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608 (a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608 (a)'s restriction on a candidate's personal expenditures is unconstitutional.
+Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office. [60] Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. §§ 608 (c) (1) (A), (B). [61] The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. §§ 608 (c) (1) (C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608 (d). [62] No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608 (c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608 (c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U. S. App. D. C., at 210, 519 F. 2d, at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use these funds for any other lawful purpose. 2 U. S. C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings. The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support. [63] There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate. [64] Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign. The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign. [65] For these reasons we hold that § 608 (c) is constitutionally invalid. [66] In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608 (b) (1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608 (b) (2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608 (b) (3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608 (e) (1), its limitation on a candidate's expenditures from his own personal funds, § 608 (a), and its ceilings on overall campaign expenditures, § 608 (c). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. [67]",contribution and expenditure limitations
+305,109380,2,2,"1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees Section 608 (b) provides, with certain limited exceptions, that no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000. The statute defines person broadly to include an individual, partnership, committee, association, corporation or any other organization or group of persons. § 591 (g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office. [24] §§ 591 (e) (1), (2). The $1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608 (b) (4), (6). [25] The restriction applies to aggregate amounts contributed to the candidate for each election—with primaries, runoff elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. § 608 (b) (5). Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.
+As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association. The Court's decisions involving associational freedoms establish that the right of association is a basic constitutional freedom, Kusper v. Pontikes, 414 U. S., at 57, that is closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society. Shelton v. Tucker, 364 U. S. 479, 486 (1960). See, e. g., Bates v. Little Rock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama, supra, at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. NAACP v. Alabama, supra, at 460-461. Yet, it is clear that [n]either the right to associate nor the right to participate in political activities is absolute. CSC v. Letter Carriers, 413 U. S. 548, 567 (1973). Even a  `significant interference' with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at 488. Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Two ancillary interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. [26] Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money. [27] It is unnecessary to look beyond the Act's primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions —in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. [28] Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra , the Court found that the danger to fair and effective government posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent. 413 U. S., at 565. [29] Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with proven and suspected quid pro quo arrangements. But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, [30] Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed. The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions— the narrow aspect of political association where the actuality and potential for corruption have been identified —while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources. [31] Significantly, the Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties. We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.
+Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated. A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for statewide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns, [32] Congress' failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, [i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000. 171 U. S. App. D. C., at 193, 519 F. 2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U. S. 51 (1973), with Rosario v. Rockefeller, 410 U. S. 752 (1973).
+Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face. [33] In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U. S. 137 (1971). There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major-party challengers to incumbents. Challengers can and often do defeat incumbents in federal elections. [34] Major-party challengers in federal elections are usually men and women who are well known and influential in their community or State. Often such challengers are themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that major-party challengers as well as incumbents are capable of raising large sums for campaigning. [35] Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their incumbent rivals. [36] And, to the extent that incumbents generally are more likely than challengers to attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers as a class. [37] Contrary to the broad generalization drawn by the appellants, the practical impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess of the ceilings that, for various reasons, the candidates in that election would otherwise have received and the utility of these additional amounts to the candidates. To be sure, the limitations may have a significant effect on particular challengers or incumbents, but the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class. [38] Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both. The charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions. [39] Although there is some force to appellants' response that minor-party candidates are primarily concerned with their ability to amass the resources necessary to reach the electorate rather than with their funding position relative to their major-party opponents, the record is virtually devoid of support for the claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of minor-party and independent candidacies. [40] Moreover, any attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election. [41] In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face. 2. The $5,000 Limitation on Contributions by Political Committees Section 608 (b) (2) permits certain committees, designated as political committees, to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U. S. C. § 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to five or more candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona fide groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees. 3. Limitations on Volunteers' Incidental Expenses The Act excludes from the definition of contribution the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee. § 591 (e) (5) (A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expenses are expressly limited to (1) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities. § 591 (e) (5) (B); (2) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge [at least equal to cost but] less than the normal comparable charge, § 591 (e) (5) (C); and (3) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate, § 591 (e) (5) (D). If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse [42] without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign. [43] 4. The $25,000 Limitation on Total Contributions During any Calendar Year In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. § 608 (b) (3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.",Contribution Limitations
+306,109380,2,3,"The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, [44] to an expenditure of $1,000 relative to a clearly identified candidate during a calendar year. § 608 (e) (1). Other expenditure ceilings limit spending by candidates, § 608 (a), their campaigns, § 608 (c), and political parties in connection with election campaigns, § 608 (f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression at the core of our electoral process and of the First Amendment freedoms. Williams v. Rhodes, 393 U. S. 23, 32 (1968).
+Section 608 (e) (1) provides that [n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000. [45] The plain effect of § 608 (e) (1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views relative to a clearly identified candidate through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement relative to a clearly identified candidate in a major metropolitan newspaper. [46] Before examining the interests advanced in support of § 608 (e) (1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague. [47] Close examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U. S. 566, 573 (1974); Cramp v. Board of Public Instruction, 368 U. S. 278, 287-288 (1961); Smith v. California, 361 U. S. 147, 151 (1959). [48] The test is whether the language of § 608 (e) (1) affords the [p]recision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms. NAACP v. Button, 371 U. S., at 438. The key operative language of the provision limits any expenditure . . . relative to a clearly identified candidate. Although expenditure, clearly identified, and candidate are defined in the Act, there is no definition clarifying what expenditures are relative to a candidate. The use of so indefinite a phrase as relative to a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608 (e) (1) make sufficiently explicit the range of expenditures covered by the limitation. The section prohibits any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds $1,000. (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase relative to a candidate to be read to mean advocating the election or defeat of a candidate. [49] But while such a construction of § 608 (e) (1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. [50] In an analogous context, this Court in Thomas v. Collins, 323 U. S. 516 (1945), observed: [W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. Id., at 535. See also United States v. Auto. Workers, 352 U. S. 567, 595-596 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes, J., dissenting). The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608 (e) (1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of clearly identified in § 608 (e) (2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication. [51] This is the reading of the provision suggested by the non-governmental appellees in arguing that [f]unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered. We agree that in order to preserve the provision against invalidation on vagueness grounds, § 608 (e) (1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office. [52] We turn then to the basic First Amendment question —whether § 608 (e) (1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that section 608 (e) is a loophole-closing provision only that is necessary to prevent circumvention of the contribution limitations. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. We cannot agree. The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608 (e) (1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression. We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608 (e) (1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608 (e) (1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608 (e) (1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U. S., at 220. Second, quite apart from the shortcomings of § 608 (e) (1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608 (e) (1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. [53] Section 608 (b)'s contribution ceilings rather than § 608 (e) (1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608 (e) (1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608 (e) (1) severely restricts all independent advocacy despite its substantially diminished potential for abuse. While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to  `speak one's mind . . . on all public institutions'  includes the right to engage in  `vigorous advocacy' no less than `abstract discussion.'  New York Times Co. v. Sullivan, 376 U. S., at 269, quoting Bridges v. California, 314 U. S. 252, 270 (1941), and NAACP v. Button, 371 U. S., at 429. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. [54] It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608 (e) (1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure `the widest possible dissemination of information from diverse and antagonistic sources,'  and  `to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'  New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U. S. 1, 20 (1945), and Roth v. United States, 354 U. S., at 484. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U. S. 127, 139 (1961). [55] The Court's decisions in Mills v. Alabama, 384 U. S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them. 384 U. S., at 215 (emphasis in original). We held that no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment. Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U. S., at 256-257. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608 (e) (1). [56] For the reasons stated, we conclude that § 608 (e) (1)'s independent expenditure limitation is unconstitutional under the First Amendment.
+The Act also sets limits on expenditures by a candidate from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year. § 608 (a) (1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives. [57] The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608 (e) (1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression. [58] The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country public discussion is a political duty, Whitney v. California, 274 U. S. 357, 375 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608 (a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms. The primary governmental interest served by the Act— the prevention of actual and apparent corruption of the political process—does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded: Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family. 171 U. S. App. D. C., at 206, 519 F. 2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed. [59] The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608 (a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608 (a)'s restriction on a candidate's personal expenditures is unconstitutional.
+Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office. [60] Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. §§ 608 (c) (1) (A), (B). [61] The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. §§ 608 (c) (1) (C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608 (d). [62] No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608 (c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608 (c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U. S. App. D. C., at 210, 519 F. 2d, at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use these funds for any other lawful purpose. 2 U. S. C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings. The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support. [63] There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate. [64] Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign. The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign. [65] For these reasons we hold that § 608 (c) is constitutionally invalid. [66] In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608 (b) (1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608 (b) (2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608 (b) (3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608 (e) (1), its limitation on a candidate's expenditures from his own personal funds, § 608 (a), and its ceilings on overall campaign expenditures, § 608 (c). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. [67]",Expenditure Limitations
+307,109380,3,1,"Section 608 (e) (1) provides that [n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000. [45] The plain effect of § 608 (e) (1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views relative to a clearly identified candidate through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement relative to a clearly identified candidate in a major metropolitan newspaper. [46] Before examining the interests advanced in support of § 608 (e) (1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague. [47] Close examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U. S. 566, 573 (1974); Cramp v. Board of Public Instruction, 368 U. S. 278, 287-288 (1961); Smith v. California, 361 U. S. 147, 151 (1959). [48] The test is whether the language of § 608 (e) (1) affords the [p]recision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms. NAACP v. Button, 371 U. S., at 438. The key operative language of the provision limits any expenditure . . . relative to a clearly identified candidate. Although expenditure, clearly identified, and candidate are defined in the Act, there is no definition clarifying what expenditures are relative to a candidate. The use of so indefinite a phrase as relative to a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608 (e) (1) make sufficiently explicit the range of expenditures covered by the limitation. The section prohibits any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds $1,000. (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase relative to a candidate to be read to mean advocating the election or defeat of a candidate. [49] But while such a construction of § 608 (e) (1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. [50] In an analogous context, this Court in Thomas v. Collins, 323 U. S. 516 (1945), observed: [W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. Id., at 535. See also United States v. Auto. Workers, 352 U. S. 567, 595-596 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes, J., dissenting). The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608 (e) (1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of clearly identified in § 608 (e) (2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication. [51] This is the reading of the provision suggested by the non-governmental appellees in arguing that [f]unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered. We agree that in order to preserve the provision against invalidation on vagueness grounds, § 608 (e) (1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office. [52] We turn then to the basic First Amendment question —whether § 608 (e) (1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that section 608 (e) is a loophole-closing provision only that is necessary to prevent circumvention of the contribution limitations. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. We cannot agree. The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608 (e) (1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression. We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608 (e) (1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608 (e) (1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608 (e) (1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U. S., at 220. Second, quite apart from the shortcomings of § 608 (e) (1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608 (e) (1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. [53] Section 608 (b)'s contribution ceilings rather than § 608 (e) (1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608 (e) (1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608 (e) (1) severely restricts all independent advocacy despite its substantially diminished potential for abuse. While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to  `speak one's mind . . . on all public institutions'  includes the right to engage in  `vigorous advocacy' no less than `abstract discussion.'  New York Times Co. v. Sullivan, 376 U. S., at 269, quoting Bridges v. California, 314 U. S. 252, 270 (1941), and NAACP v. Button, 371 U. S., at 429. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. [54] It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608 (e) (1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure `the widest possible dissemination of information from diverse and antagonistic sources,'  and  `to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'  New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States, 326 U. S. 1, 20 (1945), and Roth v. United States, 354 U. S., at 484. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U. S. 127, 139 (1961). [55] The Court's decisions in Mills v. Alabama, 384 U. S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them. 384 U. S., at 215 (emphasis in original). We held that no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment. Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U. S., at 256-257. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608 (e) (1). [56] For the reasons stated, we conclude that § 608 (e) (1)'s independent expenditure limitation is unconstitutional under the First Amendment.","The $1,000 Limitation on Expenditures Relative to a Clearly Identified Candidate"
+308,109380,3,2,"The Act also sets limits on expenditures by a candidate from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year. § 608 (a) (1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives. [57] The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608 (e) (1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression. [58] The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country public discussion is a political duty, Whitney v. California, 274 U. S. 357, 375 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608 (a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms. The primary governmental interest served by the Act— the prevention of actual and apparent corruption of the political process—does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded: Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family. 171 U. S. App. D. C., at 206, 519 F. 2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed. [59] The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608 (a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608 (a)'s restriction on a candidate's personal expenditures is unconstitutional.",Limitation on Expenditures by Candidates from Personal or Family Resources
+309,109380,3,3,"Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office. [60] Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. §§ 608 (c) (1) (A), (B). [61] The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. §§ 608 (c) (1) (C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608 (d). [62] No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608 (c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608 (c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U. S. App. D. C., at 210, 519 F. 2d, at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use these funds for any other lawful purpose. 2 U. S. C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings. The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support. [63] There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate. [64] Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign. The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign. [65] For these reasons we hold that § 608 (c) is constitutionally invalid. [66] In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608 (b) (1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608 (b) (2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608 (b) (3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608 (e) (1), its limitation on a candidate's expenditures from his own personal funds, § 608 (a), and its ceilings on overall campaign expenditures, § 608 (c). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. [67]",Limitations on Campaign Expenditures
+310,109380,1,2,"Unlike the limitations on contributions and expenditures imposed by 18 U. S. C. § 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U. S. C. § 431 et seq. (1970 ed., Supp. IV), [68] are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association. [69] Indeed, appellants argue that narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy. Brief for Appellants 171. The particular requirements embodied in the Act are attacked as overbroad—both in their application to minor-party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, § 434 (e). The Court of Appeals found no constitutional infirmities in the provisions challenged here. [70] We affirm the determination on overbreadth and hold that § 434 (e), if narrowly construed, also is within constitutional bounds. The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It required political committees, defined as national committees and national congressional campaign committees of parties, and organizations operating to influence congressional elections in two or more States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures of $10 or more was also required. §§ 1, 5-6, 36 Stat. 822 824. Annual expenditures of $50 or more for the purpose of influencing or controlling, in two or more States, the result of a congressional election had to be reported independently if they were not made through a political committee. § 7, 36 Stat. 824. In 1911 the Act was revised to include prenomination transactions such as those involved in conventions and primary campaigns. Act of Aug. 19, 1911, § 2, 37 Stat. 26. See United States v. Auto. Workers, 352 U. S., at 575-576. Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations that accept contributions or make expenditures for the purpose of influencing or attempting to influence the Presidential or Vice Presidential elections (a) in two or more States or (b) as a subsidiary of a national committee, § 302 (c), 43 Stat. 1070, to report total contributions and expenditures, including the names and addresses of contributors of $100 or more and recipients of $10 or more in a calendar year. § 305 (a), 43 Stat. 1071. The Act was upheld against a challenge that it infringed upon the prerogatives of the States in Burroughs v. United States, 290 U. S. 534 (1934). The Court held that it was within the power of Congress to pass appropriate legislation to safeguard [a Presidential] election from the improper use of money to influence the result. Id., at 545. Although the disclosure requirements were widely circumvented, [71] no further attempts were made to tighten them until 1960, when the Senate passed a bill that would have closed some existing loopholes. S. 2436, 106 Cong. Rec. 1193. The attempt aborted because no similar effort was made in the House. The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on political committees and candidates. Political committee is defined in § 431 (d) as a group of persons that receives contributions or makes expenditures of over $1,000 in a calendar year. Contributions and expenditures are defined in lengthy parallel provisions similar to those in Title 18, discussed above. [72] Both definitions focus on the use of money or other objects of value for the purpose of . . . influencing the nomination or election of any person to federal office. §§ 431 (e) (1), (f) (1). Each political committee is required to register with the Commission, § 433, and to keep detailed records of both contributions and expenditures, §§ 432 (c), (d). These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person's contributions aggregate more than $100, his occupation and principal place of business are also to be included. § 432 (c) (2). These files are subject to periodic audits and field investigations by the Commission. § 438 (a) (8). Each committee and each candidate also is required to file quarterly reports. § 434 (a). The reports are to contain detailed financial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. § 434 (b). They are to be made available by the Commission for public inspection and copying. § 438 (a) (4). Every candidate for federal office is required to designate a principal campaign committee, which is to receive reports of contributions and expenditures made on the candidate's behalf from other political committees and to compile and file these reports, together with its own statements, with the Commission. § 432 (f). Every individual or group, other than a political committee or candidate, who makes contributions or expenditures of over $100 in a calendar year other than by contribution to a political committee or candidate is required to file a statement with the Commission. § 434 (e). Any violation of these recordkeeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison term of not more than a year, or both. § 441 (a).
+Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E. g., Gibson v. Florida Legislative Comm., 372 U. S. 539 (1963); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958). We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. [73] We also have insisted that there be a relevant correlation [74] or substantial relation [75] between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F. Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U. S. 14 (1968) ( per curiam ). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra, at 461. Cf. Kusper v. Pontikes, 414 U. S., at 57-58. Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of contributors and does not compel political organizations to submit the names of their members. [76] As we have seen, group association is protected because it enhances [e]ffective advocacy. NAACP v. Alabama, supra, at 460. The right to join together for the advancement of beliefs and ideas, ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if advocacy is to be truly or optimally effective. Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for [f]inancial transactions can reveal much about a person's activities, associations, and beliefs. California Bankers Assn. v. Shultz, 416 U. S. 21, 78-79 (1974) (POWELL, J., concurring). Our past decisions have not drawn fine lines between contributors and members but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of dues, assessments, and contributions paid, by whom and when paid. 361 U. S., at 518. See also United States v. Rumely, 345 U. S. 41 (1953) (setting aside a contempt conviction of an organization official who refused to disclose names of those who made bulk purchases of books sold by the organization). The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the free functioning of our national institutions is involved. Communist Party v. Subversive Activities Control Bd., 367 U. S. 1, 97 (1961). The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate [77] in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office. Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. [78] This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. [79] And, as we recognized in Burroughs v. United States, 290 U. S., at 548, Congress could reasonably conclude that full disclosure during an election campaign tends to prevent the corrupt use of money to affect elections. In enacting these requirements it may have been mindful of Mr. Justice Brandeis' advice: Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. [80] Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above. The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements we must look to the extent of the burden that they place on individual rights. It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants' concession [81] that disclosure requirements—certainly in most applications—appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist. [82] Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.
+Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to minor parties and independent candidates because the governmental interest in this information is minimal and the danger of significant infringement on First Amendment rights is greatly increased.
+In NAACP v. Alabama the organization had made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility, 357 U. S., at 462, and the State was unable to show that the disclosure it sought had a substantial bearing on the issues it sought to clarify, id., at 464. Under those circumstances, the Court held that whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner's constitutional objections. Id., at 465. The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in informing the electorate and preventing the corruption of the political process were furthered by requiring disclosure of minor parties and independent candidates, 171 U. S. App. D. C., at 218, 519 F. 2d, at 867, and therefore found no tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cutoff point is uniformly outweighed by potential contributors' associational rights, id., at 219, 519 F. 2d, at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama . No record of harassment on a similar scale was found in this case. [83] We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative. It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations the label Republican or Democrat tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position. The Government's interest in deterring the buying of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor-party candidate has little or no chance of winning, he may be encouraged by major-party interests in order to divert votes from other major-party contenders. [84] We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within [85] and without [86] the political arena. There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act's requirements cannot be constitutionally applied. [87] But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama . Instead, appellants primarily rely on the clearly articulated fears of individuals, well experienced in the political process. Brief for Appellants 173. At best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure. [88] On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.
+Appellants agree that the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases. Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered. Those parties that would be sufficiently minor to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public-financing purposes, see Part III-A, infra, as those who received less than 25% of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining minor parties as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used. [89] The difficulty with these suggestions is that they reflect only a party's past or present political strength and that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age, [90] or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners—some are consistent losers—and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity. An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is constitutionally required. [91] It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the evils of chill and harassment . . . are largely incapable of formal proof. [92] This dissent expressed its concern that a minor party, particularly a new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult. We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views. Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.
+Section 434 (e) requires [e]very person (other than a political committee or candidate) who makes contributions or expenditures aggregating over $100 in a calendar year other than by contribution to a political committee or candidate to file a statement with the Commission. [93] Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends. In considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way. 357 U. S., at 458, 460. See also NAACP v. Button, 371 U. S., at 429-431; Sweezy v. New Hampshire, 354 U. S., at 250. Appellants attack § 434 (e) as a direct intrusion on privacy of belief, in violation of Talley v. California, 362 U. S. 60 (1960), and as imposing very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech analogous to those held to be impermissible in Thomas v. Collins, 323 U. S. 516 (1945).
+The Court of Appeals upheld § 434 (e) as necessary to enforce the independent-expenditure ceiling imposed by 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV). It said: If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608 (e), surely it can require that there be disclosure to prevent misuse of the spending channel. 171 U. S. App. D. C., at 220 519 F. 2d, at 869. We have found that § 608 (e) (1) unconstitutionally infringes upon First Amendment rights. [94] If the sole function of § 434 (e) were to aid in the enforcement of that provision, it would no longer serve any governmental purpose. But the two provisions are not so intimately tied. The legislative history on the function of § 434 (e) is bare, but it was clearly intended to stand independently of § 608 (e) (1). It was enacted with the general disclosure provisions in 1971 as part of the original Act, [95] while § 608 (e) (1) was part of the 1974 amendments. [96] Like the other disclosure provisions, § 434 (e) could play a role in the enforcement of the expanded contribution and expenditure limitations included in the 1974 amendments, but it also has independent functions. Section 434 (e) is part of Congress' effort to achieve total disclosure by reaching every kind of political activity [97] in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible. The provision is responsive to the legitimate fear that efforts would be made, as they had been in the past, [98] to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of the Act.
+In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties [99] and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights. Section 434 (e) applies to [e]very person . . . who makes contributions or expenditures. Contributions and expenditures are defined in parallel provisions in terms of the use of money or other valuable assets for the purpose of . . . influencing the nomination or election of candidates for federal office. [100] It is the ambiguity of this phrase that poses constitutional problems. Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. United States v. Harriss, 347 U. S. 612, 617 (1954). See also Papachristou v. City of Jacksonville, 405 U. S. 156 (1972). Where First Amendment rights are involved, an even greater degree of specificity is required. Smith v. Goguen, 415 U. S., at 573. See Grayned v. City of Rockford, 408 U. S. 104, 109 (1972); Kunz v. New York, 340 U. S. 290 (1951). There is no legislative history to guide us in determining the scope of the critical phrase for the purpose of . . . influencing. It appears to have been adopted without comment from earlier disclosure Acts. [101] Congress has voiced its wishes in [most] muted strains, leaving us to draw upon those common-sense assumptions that must be made in determining direction without a compass. Rosado v. Wyman, 397 U. S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra, at 618; United States v. Rumely, 345 U. S., at 45. In enacting the legislation under review Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process. [102] Our task is to construe for the purpose of . . . influencing, incorporated in § 434 (e) through the definitions of contributions and expenditures, in a manner that precisely furthers this goal. In Part I we discussed what constituted a contribution for purposes of the contribution limitations set forth in 18 U. S. C. § 608 (b) (1970 ed., Supp. IV). [103] We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of contribution in § 431 (e) for disclosure purposes parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, contributions have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign. When we attempt to define expenditure in a similarly narrow way we encounter line-drawing problems of the sort we faced in 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV). Although the phrase, for the purpose of . . . influencing an election or nomination, differs from the language used in § 608 (e) (1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. [104] The general requirement that political committees and candidates disclose their expenditures could raise similar vagueness problems, for political committee is defined only in terms of amount of annual contributions and expenditures, [105] and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words political committee more narrowly. [106] To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of political committees so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related. But when the maker of the expenditure is not within these categories—when it is an individual other than a candidate or a group other than a political committee [107] —the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434 (e) is not impermissibly broad, we construe expenditure for purposes of that section in the same way we construed the terms of § 608 (e)—to reach only funds used for communications that expressly advocate [108] the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate. In summary, § 434 (e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate. Unlike 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV), § 434 (e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434 (e), like § 608 (e) (1), does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434 (e) were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434 (e), serve another, informational interest, and even as construed § 434 (e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign related but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434 (e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies. Section 434 (e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U. S. 60 (1960), and Thomas v. Collins, 323 U. S. 516 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was in no manner so limited. 362 U. S., at 64. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434 (e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view. [109]
+Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence. The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432 (c) (2), and these records are subject to Commission audit, § 438 (a) (8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434 (b) (2), and made available for public inspection, § 438 (a) (4). The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could discern no basis in the statute for authorizing disclosure outside the Commission . . . , and hence no substantial `inhibitory effect' operating upon appellants. 171 U. S. App. D. C., at 216, 519 F. 2d, at 865. The $100 threshold was found to be within the reasonable latitude given the legislature as to where to draw the line. Ibid. We agree. The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. [110] But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality. [111] We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations. The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U. S., at 56-57. [112] In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act. [113]",reporting and disclosure requirements
+311,109380,3,1,"In NAACP v. Alabama the organization had made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility, 357 U. S., at 462, and the State was unable to show that the disclosure it sought had a substantial bearing on the issues it sought to clarify, id., at 464. Under those circumstances, the Court held that whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner's constitutional objections. Id., at 465. The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in informing the electorate and preventing the corruption of the political process were furthered by requiring disclosure of minor parties and independent candidates, 171 U. S. App. D. C., at 218, 519 F. 2d, at 867, and therefore found no tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cutoff point is uniformly outweighed by potential contributors' associational rights, id., at 219, 519 F. 2d, at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama . No record of harassment on a similar scale was found in this case. [83] We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative. It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations the label Republican or Democrat tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position. The Government's interest in deterring the buying of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor-party candidate has little or no chance of winning, he may be encouraged by major-party interests in order to divert votes from other major-party contenders. [84] We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within [85] and without [86] the political arena. There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act's requirements cannot be constitutionally applied. [87] But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama . Instead, appellants primarily rely on the clearly articulated fears of individuals, well experienced in the political process. Brief for Appellants 173. At best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure. [88] On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.",Requisite Factual Showing
+312,109380,3,2,"Appellants agree that the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases. Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered. Those parties that would be sufficiently minor to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public-financing purposes, see Part III-A, infra, as those who received less than 25% of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining minor parties as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used. [89] The difficulty with these suggestions is that they reflect only a party's past or present political strength and that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age, [90] or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners—some are consistent losers—and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity. An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is constitutionally required. [91] It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the evils of chill and harassment . . . are largely incapable of formal proof. [92] This dissent expressed its concern that a minor party, particularly a new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult. We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views. Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.",Blanket Exemption
+313,109380,3,2,"In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties [99] and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights. Section 434 (e) applies to [e]very person . . . who makes contributions or expenditures. Contributions and expenditures are defined in parallel provisions in terms of the use of money or other valuable assets for the purpose of . . . influencing the nomination or election of candidates for federal office. [100] It is the ambiguity of this phrase that poses constitutional problems. Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. United States v. Harriss, 347 U. S. 612, 617 (1954). See also Papachristou v. City of Jacksonville, 405 U. S. 156 (1972). Where First Amendment rights are involved, an even greater degree of specificity is required. Smith v. Goguen, 415 U. S., at 573. See Grayned v. City of Rockford, 408 U. S. 104, 109 (1972); Kunz v. New York, 340 U. S. 290 (1951). There is no legislative history to guide us in determining the scope of the critical phrase for the purpose of . . . influencing. It appears to have been adopted without comment from earlier disclosure Acts. [101] Congress has voiced its wishes in [most] muted strains, leaving us to draw upon those common-sense assumptions that must be made in determining direction without a compass. Rosado v. Wyman, 397 U. S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra, at 618; United States v. Rumely, 345 U. S., at 45. In enacting the legislation under review Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process. [102] Our task is to construe for the purpose of . . . influencing, incorporated in § 434 (e) through the definitions of contributions and expenditures, in a manner that precisely furthers this goal. In Part I we discussed what constituted a contribution for purposes of the contribution limitations set forth in 18 U. S. C. § 608 (b) (1970 ed., Supp. IV). [103] We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of contribution in § 431 (e) for disclosure purposes parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, contributions have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign. When we attempt to define expenditure in a similarly narrow way we encounter line-drawing problems of the sort we faced in 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV). Although the phrase, for the purpose of . . . influencing an election or nomination, differs from the language used in § 608 (e) (1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. [104] The general requirement that political committees and candidates disclose their expenditures could raise similar vagueness problems, for political committee is defined only in terms of amount of annual contributions and expenditures, [105] and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words political committee more narrowly. [106] To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of political committees so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related. But when the maker of the expenditure is not within these categories—when it is an individual other than a candidate or a group other than a political committee [107] —the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434 (e) is not impermissibly broad, we construe expenditure for purposes of that section in the same way we construed the terms of § 608 (e)—to reach only funds used for communications that expressly advocate [108] the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate. In summary, § 434 (e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate. Unlike 18 U. S. C. § 608 (e) (1) (1970 ed., Supp. IV), § 434 (e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434 (e), like § 608 (e) (1), does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434 (e) were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434 (e), serve another, informational interest, and even as construed § 434 (e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign related but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434 (e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies. Section 434 (e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U. S. 60 (1960), and Thomas v. Collins, 323 U. S. 516 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was in no manner so limited. 362 U. S., at 64. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434 (e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view. [109]",Vagueness Problems
+314,109380,2,4,"Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence. The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432 (c) (2), and these records are subject to Commission audit, § 438 (a) (8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434 (b) (2), and made available for public inspection, § 438 (a) (4). The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could discern no basis in the statute for authorizing disclosure outside the Commission . . . , and hence no substantial `inhibitory effect' operating upon appellants. 171 U. S. App. D. C., at 216, 519 F. 2d, at 865. The $100 threshold was found to be within the reasonable latitude given the legislature as to where to draw the line. Ibid. We agree. The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. [110] But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality. [111] We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations. The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U. S., at 56-57. [112] In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act. [113]",Thresholds
+315,109380,1,3,"A series of statutes [114] for the public financing of Presidential election campaigns produced the scheme now found in § 6096 and Subtitle H of the Internal Revenue Code of 1954, 26 U. S. C. §§ 6096, 9001-9012, 9031-9042 (1970 ed., Supp. IV). [115] Both the District Court, 401 F. Supp. 1235, and the Court of Appeals, 171 U. S. App. D. C., at 229-238, 519 F. 2d, at 878-887, sustained Subtitle H against a constitutional attack. [116] Appellants renew their challenge here, contending that the legislation violates the First and Fifth Amendments. We find no merit in their claims and affirm.
+Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under § 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1) party nominating conventions, § 9008 (a), (2) general election campaigns, § 9006 (a), and (3) primary campaigns, § 9037 (a). [117] Chapter 95 of Title 26, which concerns financing of party nominating conventions and general election campaigns, distinguishes among major, minor, and new parties. A major party is defined as a party whose candidate for President in the most recent election received 25% or more of the popular vote. § 9002 (6). A minor party is defined as a party whose candidate received at least 5% but less than 25% of the vote at the most recent election. § 9002 (7). All other parties are new parties, § 9002 (8), including both newly created parties and those receiving less than 5% of the vote in the last election. [118] Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that amount, § 9008 (d), [119] and may not use any of this money to benefit a particular candidate or delegate, § 9008 (c). A minor party receives a portion of the major-party entitlement determined by the ratio of the votes received by the party's candidate in the last election to the average of the votes received by the major parties' candidates. § 9008 (b) (2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974 as the base year. § 9008 (b) (5). No financing is provided for new parties, nor is there any express provision for financing independent candidates or parties not holding a convention. For expenses in the general election campaign, § 9004 (a) (1) entitles each major-party candidate to $20,000,000. [120] This amount is also adjusted for inflation. See § 9004 (a) (1). To be eligible for funds the candidate [121] must pledge not to incur expenses in excess of the entitlement under § 9004 (a) (1) and not to accept private contributions except to the extent that the fund is insufficient to provide the full entitlement. § 9003 (b) Minor-party candidates are also entitled to funding, again based on the ratio of the vote received by the party's candidate in the preceding election to the average of the major-party candidates. § 9004 (a) (2) (A). Minor-party candidates must certify that they will not incur campaign expenses in excess of the major-party entitlement and that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. § 9003 (c). New-party candidates receive no money prior to the general election, but any candidate receiving 5% or more of the popular vote in the election is entitled to post-election payments according to the formula applicable to minor-party candidates. § 9004 (a) (3). Similarly, minor-party candidates are entitled to post-election funds if they receive a greater percentage of the average major-party vote than their party's candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. § 9004 (a) (3). A further eligibility requirement for minor-and new-party candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. § 9002 (2) (B). Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. § 9037 (a). This funding is intended to aid campaigns by candidates seeking Presidential nomination by a political party, § 9033 (b) (2), in primary elections, § 9032 (7). [122] The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each person contributing to the candidate. §§ 9033 (b) (3), (4). In addition, the candidate must agree to abide by the spending limits in § 9035. See § 9033 (b) (1). [123] Funding is provided according to a matching formula: each qualified candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. § 9034 (a). Payments to any candidate under Chapter 96 may not exceed 50% of the overall expenditure ceiling accepted by the candidate. § 9034 (b).
+Appellants argue that Subtitle H is invalid (1) as contrary to the `general welfare,'  Art. I, § 8, (2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions. Appellants' general welfare contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M`Culloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U. S. 299 (1941); Burroughs v. United States, 290 U. S. 534 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: [T]he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. United States v. Butler, 297 U. S. 1, 66 (1936). See Helvering v. Davis, 301 U. S. 619, 640-641 (1937). Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In this case, Congress was legislating for the general welfare—to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising. See S. Rep. No. 93-689, Pp. 1-10 (1974). Whether the chosen means appear bad, unwise, or unworkable to us is irrelevant; Congress has concluded that the means are necessary and proper to promote the general welfare, and we thus decline to find this legislation without the grant of power in Art. I, § 8. Appellants' challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money. But the appropriation to the Fund in § 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one-and two-dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress. [124] The fallacy of appellants' argument is therefore apparent; every appropriation made by Congress uses public money in a manner to which some taxpayers object. [125] Appellants next argue that by analogy to the Religion Clauses of the First Amendment public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses—Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof—require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U. S. 203, 222-226 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v. Board of Education, 330 U. S. 1, 15-16 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although Congress shall make no law . . . abridging the freedom of speech, or the press, Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. [126] Thus, Subtitle H furthers, not abridges, pertinent First Amendment values. [127] Appellants argue, however, that as constructed public financing invidiously discriminates in violation of the Fifth Amendment. We turn therefore to that argument. Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U. S. 636, 638 n. 2 (1975), and cases cited. In several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a vital governmental interest, American Party of Texas v. White, 415 U. S. 767, 780-781 (1974), that is achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity. Lubin v. Panish, 415 U. S. 709, 716 (1974). See American Party of Texas v. White, supra, at 780; Storer v. Brown, 415 U. S. 724, 729-730 (1974). These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'. [128] Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Non-eligible candidates are not subject to that limitation. [129] Accordingly, we conclude that public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases. [130] In any event, Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate. It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S. Rep. No. 93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E. g., Storer v. Brown, supra, at 736; Lubin v. Panish, supra, at 718-719; Jenness v. Fortson, 403 U. S. 431, 442 (1971); Williams v. Rhodes, 393 U. S., at 31-33. Congress' interest in not funding hopeless candidacies with large sums of public money, S. Rep. No. 93-689, supra, at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require some preliminary showing of a significant modicum of support, Jenness v. Fortson, supra, at 442, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to splintered parties and unrestrained factionalism. Storer v. Brown, supra, at 736; S. Rep. No. 93-689, supra, at 8; H. R. Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U. S. 134, 145 (1972). At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S. Rep. No. 93-689, supra, at 8-10; H. R. Rep. No. 93-1239, supra, at 13. As the Court of Appeals said, provisions for public funding of Presidential campaigns . . . could operate to give an unfair advantage to established parties, thus reducing, to the nation's detriment. . . . the `potential fluidity of American political life.'  171 U. S. App. D. C., at 231, 519 F. 2d, at 880, quoting from Jenness v. Fortson, supra, at 439.
+Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree. [131] As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson , there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra .  403 U. S., at 441-442. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections. [132] Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major-party entitlement. [133] Identical treatment of all parties, on the other hand, would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties. 171 U. S. App. D. C., at 231, 519 F. 2d, at 881. The Constitution does not require the Government to finance the efforts of every nascent political group, American Party of Texas v. White, 415 U. S., at 794, merely because Congress chose to finance the efforts of the major parties. Furthermore, appellants have made no showing that the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources, [134] and by our holding today new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates [135] such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties. Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U. S., at 439-440, that popular vote totals in the last election are a proper measure of public support. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability. [136] Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson , for example, incorporated alternative means of qualifying for the ballot, 403 U. S., at 440, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U. S., at 718. To suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot-access cases. See supra, at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism. Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of minority political groups in furthering the development of American democracy [137] were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them. Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to § 9004 (c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are contributions subject to the general limitations on contributions, 18 U. S. C. § 591 (e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk since the prospect of post-election participation in public funding will be good. [138] Finally, appellants challenge the validity of the 5% threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 5%, and because in their view the 5% requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U. S. 431 (1971), [139] the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 5% of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But under Chapter 95 a Presidential candidate needs only 5% or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U. S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We cannot say that Congress' choice falls without the permissible range. [140]
+The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H. R. Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates. [141] We therefore conclude that appellants' constitutional challenge to the provisions for funding nominating conventions must also be rejected.
+Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries [142] and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U. S. 641, 657 (1966): [I]n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not `strike at all evils at the same time,' Semler v. Dental Examiners, 294 U. S. 608, 610, and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co., 348 U. S. 483, 489. [143] The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism. The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College. [144] We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers [145] and to enhance the importance of smaller contributions. [146] Some candidates undoubtedly could raise large sums of money and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds. For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional. [147]
+The only remaining issue is whether our holdings invalidating 18 U. S. C. §§ 608 (a), (c), and (e) (1) (1970 ed., Supp. IV) require the conclusion that Subtitle H is unconstitutional. There is, of course, a relationship between the spending limits in § 608 (c) and the public financing provisions; the expenditure limits accepted by a candidate to be eligible for public funding are identical to the limits in § 608 (c). But we have no difficulty in concluding that Subtitle H is severable. Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law. Champlin Refining Co. v. Corporation Commission, 286 U. S. 210, 234 (1932). Our discussion of what is left leaves no doubt that the value of public financing is not dependent on the existence of a generally applicable expenditure limit. We therefore hold Subtitle H severable from those portions of the legislation today held constitutionally infirm.",public financing of presidential election campaigns
+316,109380,2,1,"Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under § 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1) party nominating conventions, § 9008 (a), (2) general election campaigns, § 9006 (a), and (3) primary campaigns, § 9037 (a). [117] Chapter 95 of Title 26, which concerns financing of party nominating conventions and general election campaigns, distinguishes among major, minor, and new parties. A major party is defined as a party whose candidate for President in the most recent election received 25% or more of the popular vote. § 9002 (6). A minor party is defined as a party whose candidate received at least 5% but less than 25% of the vote at the most recent election. § 9002 (7). All other parties are new parties, § 9002 (8), including both newly created parties and those receiving less than 5% of the vote in the last election. [118] Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that amount, § 9008 (d), [119] and may not use any of this money to benefit a particular candidate or delegate, § 9008 (c). A minor party receives a portion of the major-party entitlement determined by the ratio of the votes received by the party's candidate in the last election to the average of the votes received by the major parties' candidates. § 9008 (b) (2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974 as the base year. § 9008 (b) (5). No financing is provided for new parties, nor is there any express provision for financing independent candidates or parties not holding a convention. For expenses in the general election campaign, § 9004 (a) (1) entitles each major-party candidate to $20,000,000. [120] This amount is also adjusted for inflation. See § 9004 (a) (1). To be eligible for funds the candidate [121] must pledge not to incur expenses in excess of the entitlement under § 9004 (a) (1) and not to accept private contributions except to the extent that the fund is insufficient to provide the full entitlement. § 9003 (b) Minor-party candidates are also entitled to funding, again based on the ratio of the vote received by the party's candidate in the preceding election to the average of the major-party candidates. § 9004 (a) (2) (A). Minor-party candidates must certify that they will not incur campaign expenses in excess of the major-party entitlement and that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. § 9003 (c). New-party candidates receive no money prior to the general election, but any candidate receiving 5% or more of the popular vote in the election is entitled to post-election payments according to the formula applicable to minor-party candidates. § 9004 (a) (3). Similarly, minor-party candidates are entitled to post-election funds if they receive a greater percentage of the average major-party vote than their party's candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. § 9004 (a) (3). A further eligibility requirement for minor-and new-party candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. § 9002 (2) (B). Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. § 9037 (a). This funding is intended to aid campaigns by candidates seeking Presidential nomination by a political party, § 9033 (b) (2), in primary elections, § 9032 (7). [122] The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each person contributing to the candidate. §§ 9033 (b) (3), (4). In addition, the candidate must agree to abide by the spending limits in § 9035. See § 9033 (b) (1). [123] Funding is provided according to a matching formula: each qualified candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. § 9034 (a). Payments to any candidate under Chapter 96 may not exceed 50% of the overall expenditure ceiling accepted by the candidate. § 9034 (b).",Summary of Subtitle H
+317,109380,2,2,"Appellants argue that Subtitle H is invalid (1) as contrary to the `general welfare,'  Art. I, § 8, (2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions. Appellants' general welfare contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M`Culloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U. S. 299 (1941); Burroughs v. United States, 290 U. S. 534 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: [T]he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. United States v. Butler, 297 U. S. 1, 66 (1936). See Helvering v. Davis, 301 U. S. 619, 640-641 (1937). Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In this case, Congress was legislating for the general welfare—to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising. See S. Rep. No. 93-689, Pp. 1-10 (1974). Whether the chosen means appear bad, unwise, or unworkable to us is irrelevant; Congress has concluded that the means are necessary and proper to promote the general welfare, and we thus decline to find this legislation without the grant of power in Art. I, § 8. Appellants' challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money. But the appropriation to the Fund in § 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one-and two-dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress. [124] The fallacy of appellants' argument is therefore apparent; every appropriation made by Congress uses public money in a manner to which some taxpayers object. [125] Appellants next argue that by analogy to the Religion Clauses of the First Amendment public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses—Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof—require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U. S. 203, 222-226 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v. Board of Education, 330 U. S. 1, 15-16 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although Congress shall make no law . . . abridging the freedom of speech, or the press, Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. [126] Thus, Subtitle H furthers, not abridges, pertinent First Amendment values. [127] Appellants argue, however, that as constructed public financing invidiously discriminates in violation of the Fifth Amendment. We turn therefore to that argument. Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U. S. 636, 638 n. 2 (1975), and cases cited. In several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a vital governmental interest, American Party of Texas v. White, 415 U. S. 767, 780-781 (1974), that is achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity. Lubin v. Panish, 415 U. S. 709, 716 (1974). See American Party of Texas v. White, supra, at 780; Storer v. Brown, 415 U. S. 724, 729-730 (1974). These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'. [128] Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Non-eligible candidates are not subject to that limitation. [129] Accordingly, we conclude that public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases. [130] In any event, Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate. It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S. Rep. No. 93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E. g., Storer v. Brown, supra, at 736; Lubin v. Panish, supra, at 718-719; Jenness v. Fortson, 403 U. S. 431, 442 (1971); Williams v. Rhodes, 393 U. S., at 31-33. Congress' interest in not funding hopeless candidacies with large sums of public money, S. Rep. No. 93-689, supra, at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require some preliminary showing of a significant modicum of support, Jenness v. Fortson, supra, at 442, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to splintered parties and unrestrained factionalism. Storer v. Brown, supra, at 736; S. Rep. No. 93-689, supra, at 8; H. R. Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U. S. 134, 145 (1972). At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S. Rep. No. 93-689, supra, at 8-10; H. R. Rep. No. 93-1239, supra, at 13. As the Court of Appeals said, provisions for public funding of Presidential campaigns . . . could operate to give an unfair advantage to established parties, thus reducing, to the nation's detriment. . . . the `potential fluidity of American political life.'  171 U. S. App. D. C., at 231, 519 F. 2d, at 880, quoting from Jenness v. Fortson, supra, at 439.
+Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree. [131] As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson , there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra .  403 U. S., at 441-442. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections. [132] Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major-party entitlement. [133] Identical treatment of all parties, on the other hand, would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties. 171 U. S. App. D. C., at 231, 519 F. 2d, at 881. The Constitution does not require the Government to finance the efforts of every nascent political group, American Party of Texas v. White, 415 U. S., at 794, merely because Congress chose to finance the efforts of the major parties. Furthermore, appellants have made no showing that the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources, [134] and by our holding today new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates [135] such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties. Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U. S., at 439-440, that popular vote totals in the last election are a proper measure of public support. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability. [136] Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson , for example, incorporated alternative means of qualifying for the ballot, 403 U. S., at 440, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U. S., at 718. To suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot-access cases. See supra, at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism. Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of minority political groups in furthering the development of American democracy [137] were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them. Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to § 9004 (c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are contributions subject to the general limitations on contributions, 18 U. S. C. § 591 (e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk since the prospect of post-election participation in public funding will be good. [138] Finally, appellants challenge the validity of the 5% threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 5%, and because in their view the 5% requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U. S. 431 (1971), [139] the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 5% of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But under Chapter 95 a Presidential candidate needs only 5% or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U. S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We cannot say that Congress' choice falls without the permissible range. [140]
+The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H. R. Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates. [141] We therefore conclude that appellants' constitutional challenge to the provisions for funding nominating conventions must also be rejected.
+Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries [142] and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U. S. 641, 657 (1966): [I]n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not `strike at all evils at the same time,' Semler v. Dental Examiners, 294 U. S. 608, 610, and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co., 348 U. S. 483, 489. [143] The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism. The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College. [144] We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers [145] and to enhance the importance of smaller contributions. [146] Some candidates undoubtedly could raise large sums of money and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds. For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional. [147]",Constitutionality of Subtitle H
+318,109380,3,1,"Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree. [131] As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson , there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra .  403 U. S., at 441-442. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections. [132] Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major-party entitlement. [133] Identical treatment of all parties, on the other hand, would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties. 171 U. S. App. D. C., at 231, 519 F. 2d, at 881. The Constitution does not require the Government to finance the efforts of every nascent political group, American Party of Texas v. White, 415 U. S., at 794, merely because Congress chose to finance the efforts of the major parties. Furthermore, appellants have made no showing that the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources, [134] and by our holding today new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates [135] such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties. Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U. S., at 439-440, that popular vote totals in the last election are a proper measure of public support. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability. [136] Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson , for example, incorporated alternative means of qualifying for the ballot, 403 U. S., at 440, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U. S., at 718. To suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot-access cases. See supra, at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism. Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of minority political groups in furthering the development of American democracy [137] were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them. Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to § 9004 (c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are contributions subject to the general limitations on contributions, 18 U. S. C. § 591 (e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk since the prospect of post-election participation in public funding will be good. [138] Finally, appellants challenge the validity of the 5% threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 5%, and because in their view the 5% requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U. S. 431 (1971), [139] the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 5% of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But under Chapter 95 a Presidential candidate needs only 5% or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U. S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs. We cannot say that Congress' choice falls without the permissible range. [140]",General Election Campaign Financing
+319,109380,3,3,"Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries [142] and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U. S. 641, 657 (1966): [I]n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not `strike at all evils at the same time,' Semler v. Dental Examiners, 294 U. S. 608, 610, and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co., 348 U. S. 483, 489. [143] The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism. The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College. [144] We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers [145] and to enhance the importance of smaller contributions. [146] Some candidates undoubtedly could raise large sums of money and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds. For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional. [147]",Primary Election Campaign Financing
+320,109380,1,4,"The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission) and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission's authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers. Chapter 14 of Title 2 [148] makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties under § 438 (a) with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to serve as a national clearinghouse for information in respect to the administration of elections. § 438 (b). Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given extensive rulemaking and adjudicative powers. Its duty under § 438 (a) (10) is to prescribe suitable rules and regulations to carry out the provisions of . . . chapter [14]. Under § 437d (a) (8) the Commission is empowered to make such rules as are necessary to carry out the provisions of this Act. [149] Section 437d (a) (9) authorizes it to formulate general policy with respect to the administration of this Act and enumerated sections of Title 18's Criminal Code, [150] as to all of which provisions the Commission has primary jurisdiction with respect to [their] civil enforcement. § 437c (b). [151] The Commission is authorized under § 437f (a) to render advisory opinions with respect to activities possibly violating the Act, the Title 18 sections, or the campaign funding provisions of Title 26, [152] the effect of which is that [n]otwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered . . . who acts in good faith in accordance with the provisions and findings [thereof] shall be presumed to be in compliance with the [statutory provision] with respect to which such advisory opinion is rendered. § 437f (b). In the course of administering the provisions for Presidential campaign financing, the Commission may authorize convention expenditures which exceed the statutory limits. 26 U. S. C. § 9008 (d) (3) (1970 ed., Supp. IV). The Commission's enforcement power is both direct and wide ranging. It may institute a civil action for (i) injunctive or other relief against any acts or practices which constitute or will constitute a violation of this Act, § 437g (a) (5); (ii) declaratory or injunctive relief as may be appropriate to implement or con[s]true any provisions of Chapter 95 of Title 26, governing administration of funds for Presidential election campaigns and national party conventions, 26 U. S. C. § 9011 (b) (1) (1970 ed., Supp. IV); and (iii) such injunctive relief as is appropriate to implement any provision of Chapter 96 of Title 26, governing the payment of matching funds for Presidential primary campaigns, 26 U. S. C. § 9040 (c) (1970 ed., Supp. IV). If after the Commission's post-disbursement audit of candidates receiving payments under Chapter 95 or 96 it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the Treasury. 26 U. S. C. §§ 9010 (b), 9040 (b) (1970 ed., Supp. IV). In no respect do the foregoing civil actions require the concurrence of or participation by the Attorney General; conversely, the decision not to seek judicial relief in the above respects would appear to rest solely with the Commission. [153] With respect to the referenced Title 18 sections, § 437g (a) (7) provides that if, after notice and opportunity for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney General upon request by the Commission. . . shall institute a civil action for relief. Finally, as [a]dditional enforcement authority, § 456 (a) authorizes the Commission, after notice and opportunity for hearing, to make a finding that a person . . . while a candidate for Federal office, failed to file a required report of contributions or expenditures. If that finding is made within the applicable limitations period for prosecutions, the candidate is thereby disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate. [154] The body in which this authority is reposed consists of eight members. [155] The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate upon the recommendations of the majority leader of the Senate and the minority leader of the Senate. [156] Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.
+Appellants argue that given the Commission's extensive powers the method of choosing its members under § 437c (a) (1) runs afoul of the separation of powers embedded in the Constitution, and urge that as presently constituted the Commission's existence be held unconstitutional by this Court. Before embarking on this or any related inquiry, however, we must decide whether these issues are properly before us. Because of the Court of Appeals' emphasis on lack of ripeness of the issue relating to the method of appointment of the members of the Commission, we find it necessary to focus particularly on that consideration in this section of our opinion. We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and [p]roblems of prematurity and abstractness that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U. S. 583, 588 (1972). In Regional Rail Reorganization Act Cases, 419 U. S. 102, 140 (1974), we stated that ripeness is peculiarly a question of timing, and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant. We likewise observed in the Reorganization Act Cases: Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Id., at 143. The Court of Appeals held that of the five specific certified questions directed at the Commission's authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could not be adjudicated because [in] its present stance, this litigation does not present the court with the concrete facts that are necessary to an informed decision. [157] 171 U. S. App. D. C., at 244, 519 F. 2d, at 893. Since the entry of judgment by the Court of Appeals, the Commission has undertaken to issue rules and regulations under the authority of § 438 (a) (10). While many of its other functions remain as yet unexercised, the date of their all but certain exercise is now closer by several months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions. [158] Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U. S. 389 (1973); Glidden Co. v. Zdanok, 370 U. S. 530 (1962); Coleman v. Miller, 307 U. S. 433 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants' claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to which we have previously adverted we hold that appellants' claims as they bear upon the method of appointment of the Commission's members may be presently adjudicated.
+Appellants urge that since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of Art. II, § 2, cl. 2, of the Constitution, which provides in pertinent part as follows: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Appellants' argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact Officers of the United States and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by Officers of the United States, as that term must be construed within the doctrine of separation of powers. Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing appropriate legislative functions. The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v. Philippine Islands, 277 U. S. 189 (1928), that the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws. But it described appellants' argument based upon Art. II, § 2, cl. 2, as strikingly syllogistic, and concluded that Congress had sufficient authority under the Necessary and Proper Clause of Art. I of the Constitution not only to establish the Commission but to appoint the Commission's members. As we have earlier noted, it upheld the constitutional validity of congressional vesting of certain authority in the Commission, and concluded that the question of the constitutional validity of the vesting of its remaining functions was not yet ripe for review. The three dissenting judges in the Court of Appeals concluded that the method of appointment for the Commission did violate the doctrine of separation of powers.
+We do not think appellants' arguments based upon Art. II, § 2, cl. 2, of the Constitution may be so easily dismissed as did the majority of the Court of Appeals. Our inquiry of necessity touches upon the fundamental principles of the Government established by the Framers of the Constitution, and all litigants and all of the courts which have addressed themselves to the matter start on common ground in the recognition of the intent of the Framers that the powers of the three great branches of the National Government be largely separate from one another. James Madison, writing in the Federalist No. 47, [159] defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to Montesquieu's well-known maxim that the legislative, executive, and judicial departments ought to be separate and distinct: The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. `When the legislative and executive powers are united in the same person or body,' says he, `there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.' Again: `Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. ' Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. [160] Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. The President is a participant in the lawmaking process by virtue of his authority to veto bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively. Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U. S. 394 (1928), after stating the general principle of separation of powers found in the United States Constitution, went on to observe: [T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination. Id., at 406. More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952), succinctly characterized this understanding: While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. As Madison put it in Federalist No. 51: This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. [161] This Court has not hesitated to enforce the principle of separation of powers embodied in the Constitution when its application has proved necessary for the decisions of cases or controversies properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 13 How. 40 (1852); Hayburn's Case, 2 Dall. 409 (1792). The Court has held that the President may not execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra . In the course of its opinion in that case, the Court said: In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a law-maker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that `All legislative Powers herein granted shall be vested in a Congress of the United States . . . .'  343 U. S., at 587-588. More closely in point to the facts of the present case is this Court's decision in Springer v. Philippine Islands, 277 U. S. 189 (1928), where the Court held that the legislature of the Philippine Islands could not provide for legislative appointment to executive agencies.
+The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: All legislative Powers herein granted shall be vested in a Congress of the United States. Article II, § 1, vests the executive power in a President of the United States of America, and Art. III, § 1, declares that The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called Ineligibility and Incompatibility Clauses contained in Art. I, § 6: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. It is in the context of these cognate provisions of the document that we must examine the language of Art. II. § 2, cl. 2, which appellants contend provides the only authorization for appointment of those to whom substantial executive or administrative authority is given by statute. Because of the importance of its language, we again set out the provision: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing Officers of the United States, but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U. S. 508, 509-510 (1879): The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.  (Emphasis supplied.) We think that the term Officers of the United States as used in Art. II, defined to include all persons who can be said to hold an office under the government in United States v. Germaine, supra , is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States, and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. If all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment, United States v. Germaine, supra , it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U. S. 52 (1926), and the clerk of a district court, Ex parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such inferior Officers within the meaning of that Clause. [162] Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause authorizes Congress to vest the appointment of the officers described in that part in the Courts of Law, or in the Heads of Departments, neither the Speaker of the House nor the President pro tempore of the Senate comes within this language. The phrase Heads of Departments, used as it is in conjunction with the phrase Courts of Law, suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the Courts of Law, the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language Heads of Departments in this part of cl. 2. Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection. The Appointments Clause specifies the method of appointment only for Officers of the United States whose appointment is not otherwise provided for in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the inherent power of Congress to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides for the selection of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives, are elected under the internal rules of each House [163] and are designated by statute as officers of the Congress. [164] There is no occasion for us to decide whether any of these member officers are Officers of the United States whose appointment is otherwise provided for within the meaning of the Appointments Clause, since even if they were such officers their appointees would not be. Contrary to the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II, § 2, cl. 2, will deny to Congress all power to appoint its own inferior officers to carry out appropriate legislative functions. [165] Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention of relegating Congress to a position below that of the co-equal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those in whom the appointment power may be vested. But the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches. [166] The debates during the Convention, and the evolution of the draft version of the Constitution, seem to us to lend considerable support to our reading of the language of the Appointments Clause itself. An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were Officers of the United States. The debates on the floor of the Convention reflect at least in part the way the change came about. On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us: [167] Article IX, § 1: The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court. Article X, § 2: [The President] shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint —not merely nominate, but to actually appoint—all other officers was reposed in the President. During a discussion of a provision in the same draft from the Committee on Detail which provided that the Treasurer of the United States should be chosen by both Houses of Congress, Mr. Read moved to strike out that clause, leaving the appointment of the Treasurer as of other officers to the Executive. [168] Opposition to Read's motion was based, not on objection to the principle of executive appointment, but on the particular nature of the office of the Treasurer. [169] On Thursday, August 23, the Convention voted to insert after the word Ambassadors in the text of draft Art. IX the words and other public Ministers. Immediately afterwards, the section as amended was referred to the Committee of Five. [170] The following day the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words not otherwise provided for by this Constitution the words or by law. This motion was defeated by a vote of nine States to one. [171] On September 3 the Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made the Ineligibility Clause somewhat less stringent. [172] Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X. [173] The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given, not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees. It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term Officers of the United States, which since it had first appeared in Art. X had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation. Appellee Commission and amici urge that because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate congressional elections, by virtue of the power conferred in Art. I, § 4. [174] This Court has also held that it has very broad authority to prevent corruption in national Presidential elections. Burroughs v. United States, 290 U. S. 534 (1934). But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, M`Culloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers. The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial as well as executive officers. Neither has it been disputed—and apparently it is not now disputed—that the Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295 U. S. 602, 624 (1935), may be predominantly quasi-judicial and quasi-legislative rather than executive. The Court in that case carefully emphasized that although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them. Id., at 625-626. Appellees argue that the legislative authority conferred upon the Congress in Art. I, § 4, to regulate the Times, places and Manner of holding Elections for Senators and Representatives is augmented by the provision in § 5 that Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. Section 5 confers, however, not a general legislative power upon the Congress, but rather a power judicial in character upon each House of the Congress. Barry v. United States ex rel. Cunningham, 279 U. S. 597, 613 (1929). The power of each House to judge whether one claiming election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395 U. S. 486 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office. Whatever power Congress may have to legislate, such qualifications must derive from § 4, rather than § 5, of Art. I. Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the Commission to regulate practices in connection with the Presidential election is concerned. This Amendment provides that certificates of the votes of the electors be sealed [and] directed to the President of the Senate, and that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two Houses the same sort of power judicial in character, Barry v. United States ex rel. Cunningham, supra, at 613, as was conferred upon each House by Art. I, § 5, with respect to elections of its own members. We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President's campaign for re-election. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers' work. Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but rather its authority to provide that its own officers may make appointments to such office or commission. So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was necessary and proper to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so. The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President's power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U. S. 52 (1926), the Court held that Congress could not by statute divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said: The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. ..... Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . . Id., at 117, 163-164. In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the President's power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority  except in its selection.  295 U. S. at 625 (emphasis in original). Wiener v. United States, 357 U. S. 349 (1958), which applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments. This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U. S. 189 (1928), in which it was said: Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive. Id., at 202.
+Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause, [175] the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra, at 109-113, disclosed that the Commission's powers fall generally into three categories: functions relating to the flow of necessary information —receipt, dissemination, and investigation; functions with respect to the Commission's task of fleshing out the statute—rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules—informal procedures, administrative determinations and hearings, and civil suits. Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U. S. 168 (1881); McGrain v. Daugherty, 273 U. S. 135 (1927); Eastland v. United States Servicemen's Fund, 421 U. S. 491 (1975). As this Court stated in McGrain, supra, at 175: A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to take Care that the Laws be faithfully executed. Art. II, § 3. Congress may undoubtedly under the Necessary and Proper Clause create offices in the generic sense and provide such method of appointment to those offices as it chooses. But Congress' power under that Clause is inevitably bounded by the express language of Art. II, § 2, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be Officers of the United States. They may, therefore, properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not Officers of the United States. This Court observed more than a century ago with respect to litigation conducted in the courts of the United States: Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General. Confiscation Cases, 7 Wall. 454, 458-459 (1869). The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U. S., at 202, saying: Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this Court. Myers v. United States, 272 U. S. 52. Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive. We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are Officers of the United States within the language of that section. All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress [176] or the Executive Branch, are more legislative and judicial in nature than are the Commission's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U. S. 602 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are Officers of the United States. [177] It is also our view that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U. S. 549, 550-551 (1972). See Ryan v. Tinsley, 316 F. 2d 430, 431-432 (CA10 1963); Schaefer v. Thomson, 251 F. Supp. 450, 453 (Wyo. 1965), aff'd sub nom. Harrison v. Schaeffer, 383 U. S. 269 (1966). Cf. City of Richmond v. United States, 422 U. S. 358, 379 (1975) (BRENNAN, J., dissenting). We also draw on the Court's practice in the apportionment and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. This limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act. Cf. Georgia v. United States, 411 U. S. 526, 541 (1973); Fortson v. Morris, 385 U. S. 231, 235 (1966); Maryland Comm. v. Tawes, 377 U. S. 656, 675-676 (1964).",the federal election commission
+321,109380,2,1,"Appellants argue that given the Commission's extensive powers the method of choosing its members under § 437c (a) (1) runs afoul of the separation of powers embedded in the Constitution, and urge that as presently constituted the Commission's existence be held unconstitutional by this Court. Before embarking on this or any related inquiry, however, we must decide whether these issues are properly before us. Because of the Court of Appeals' emphasis on lack of ripeness of the issue relating to the method of appointment of the members of the Commission, we find it necessary to focus particularly on that consideration in this section of our opinion. We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and [p]roblems of prematurity and abstractness that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U. S. 583, 588 (1972). In Regional Rail Reorganization Act Cases, 419 U. S. 102, 140 (1974), we stated that ripeness is peculiarly a question of timing, and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant. We likewise observed in the Reorganization Act Cases: Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Id., at 143. The Court of Appeals held that of the five specific certified questions directed at the Commission's authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could not be adjudicated because [in] its present stance, this litigation does not present the court with the concrete facts that are necessary to an informed decision. [157] 171 U. S. App. D. C., at 244, 519 F. 2d, at 893. Since the entry of judgment by the Court of Appeals, the Commission has undertaken to issue rules and regulations under the authority of § 438 (a) (10). While many of its other functions remain as yet unexercised, the date of their all but certain exercise is now closer by several months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions. [158] Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U. S. 389 (1973); Glidden Co. v. Zdanok, 370 U. S. 530 (1962); Coleman v. Miller, 307 U. S. 433 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants' claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to which we have previously adverted we hold that appellants' claims as they bear upon the method of appointment of the Commission's members may be presently adjudicated.",Ripeness
+322,109380,3,2,"The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: All legislative Powers herein granted shall be vested in a Congress of the United States. Article II, § 1, vests the executive power in a President of the United States of America, and Art. III, § 1, declares that The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called Ineligibility and Incompatibility Clauses contained in Art. I, § 6: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. It is in the context of these cognate provisions of the document that we must examine the language of Art. II. § 2, cl. 2, which appellants contend provides the only authorization for appointment of those to whom substantial executive or administrative authority is given by statute. Because of the importance of its language, we again set out the provision: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing Officers of the United States, but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U. S. 508, 509-510 (1879): The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.  (Emphasis supplied.) We think that the term Officers of the United States as used in Art. II, defined to include all persons who can be said to hold an office under the government in United States v. Germaine, supra , is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States, and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. If all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment, United States v. Germaine, supra , it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U. S. 52 (1926), and the clerk of a district court, Ex parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such inferior Officers within the meaning of that Clause. [162] Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause authorizes Congress to vest the appointment of the officers described in that part in the Courts of Law, or in the Heads of Departments, neither the Speaker of the House nor the President pro tempore of the Senate comes within this language. The phrase Heads of Departments, used as it is in conjunction with the phrase Courts of Law, suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the Courts of Law, the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language Heads of Departments in this part of cl. 2. Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection. The Appointments Clause specifies the method of appointment only for Officers of the United States whose appointment is not otherwise provided for in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the inherent power of Congress to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides for the selection of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives, are elected under the internal rules of each House [163] and are designated by statute as officers of the Congress. [164] There is no occasion for us to decide whether any of these member officers are Officers of the United States whose appointment is otherwise provided for within the meaning of the Appointments Clause, since even if they were such officers their appointees would not be. Contrary to the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II, § 2, cl. 2, will deny to Congress all power to appoint its own inferior officers to carry out appropriate legislative functions. [165] Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention of relegating Congress to a position below that of the co-equal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those in whom the appointment power may be vested. But the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches. [166] The debates during the Convention, and the evolution of the draft version of the Constitution, seem to us to lend considerable support to our reading of the language of the Appointments Clause itself. An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were Officers of the United States. The debates on the floor of the Convention reflect at least in part the way the change came about. On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us: [167] Article IX, § 1: The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court. Article X, § 2: [The President] shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint —not merely nominate, but to actually appoint—all other officers was reposed in the President. During a discussion of a provision in the same draft from the Committee on Detail which provided that the Treasurer of the United States should be chosen by both Houses of Congress, Mr. Read moved to strike out that clause, leaving the appointment of the Treasurer as of other officers to the Executive. [168] Opposition to Read's motion was based, not on objection to the principle of executive appointment, but on the particular nature of the office of the Treasurer. [169] On Thursday, August 23, the Convention voted to insert after the word Ambassadors in the text of draft Art. IX the words and other public Ministers. Immediately afterwards, the section as amended was referred to the Committee of Five. [170] The following day the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words not otherwise provided for by this Constitution the words or by law. This motion was defeated by a vote of nine States to one. [171] On September 3 the Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made the Ineligibility Clause somewhat less stringent. [172] Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X. [173] The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given, not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees. It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term Officers of the United States, which since it had first appeared in Art. X had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation. Appellee Commission and amici urge that because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate congressional elections, by virtue of the power conferred in Art. I, § 4. [174] This Court has also held that it has very broad authority to prevent corruption in national Presidential elections. Burroughs v. United States, 290 U. S. 534 (1934). But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, M`Culloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers. The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial as well as executive officers. Neither has it been disputed—and apparently it is not now disputed—that the Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295 U. S. 602, 624 (1935), may be predominantly quasi-judicial and quasi-legislative rather than executive. The Court in that case carefully emphasized that although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them. Id., at 625-626. Appellees argue that the legislative authority conferred upon the Congress in Art. I, § 4, to regulate the Times, places and Manner of holding Elections for Senators and Representatives is augmented by the provision in § 5 that Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. Section 5 confers, however, not a general legislative power upon the Congress, but rather a power judicial in character upon each House of the Congress. Barry v. United States ex rel. Cunningham, 279 U. S. 597, 613 (1929). The power of each House to judge whether one claiming election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395 U. S. 486 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office. Whatever power Congress may have to legislate, such qualifications must derive from § 4, rather than § 5, of Art. I. Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the Commission to regulate practices in connection with the Presidential election is concerned. This Amendment provides that certificates of the votes of the electors be sealed [and] directed to the President of the Senate, and that the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two Houses the same sort of power judicial in character, Barry v. United States ex rel. Cunningham, supra, at 613, as was conferred upon each House by Art. I, § 5, with respect to elections of its own members. We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President's campaign for re-election. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers' work. Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but rather its authority to provide that its own officers may make appointments to such office or commission. So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was necessary and proper to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so. The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President's power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U. S. 52 (1926), the Court held that Congress could not by statute divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said: The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. ..... Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . . Id., at 117, 163-164. In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the President's power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority  except in its selection.  295 U. S. at 625 (emphasis in original). Wiener v. United States, 357 U. S. 349 (1958), which applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments. This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U. S. 189 (1928), in which it was said: Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive. Id., at 202.",The Appointments Clause
+323,109380,3,3,"Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause, [175] the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra, at 109-113, disclosed that the Commission's powers fall generally into three categories: functions relating to the flow of necessary information —receipt, dissemination, and investigation; functions with respect to the Commission's task of fleshing out the statute—rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules—informal procedures, administrative determinations and hearings, and civil suits. Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U. S. 168 (1881); McGrain v. Daugherty, 273 U. S. 135 (1927); Eastland v. United States Servicemen's Fund, 421 U. S. 491 (1975). As this Court stated in McGrain, supra, at 175: A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it. But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to take Care that the Laws be faithfully executed. Art. II, § 3. Congress may undoubtedly under the Necessary and Proper Clause create offices in the generic sense and provide such method of appointment to those offices as it chooses. But Congress' power under that Clause is inevitably bounded by the express language of Art. II, § 2, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be Officers of the United States. They may, therefore, properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not Officers of the United States. This Court observed more than a century ago with respect to litigation conducted in the courts of the United States: Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General. Confiscation Cases, 7 Wall. 454, 458-459 (1869). The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U. S., at 202, saying: Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this Court. Myers v. United States, 272 U. S. 52. Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive. We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are Officers of the United States within the language of that section. All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress [176] or the Executive Branch, are more legislative and judicial in nature than are the Commission's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U. S. 602 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are Officers of the United States. [177] It is also our view that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U. S. 549, 550-551 (1972). See Ryan v. Tinsley, 316 F. 2d 430, 431-432 (CA10 1963); Schaefer v. Thomson, 251 F. Supp. 450, 453 (Wyo. 1965), aff'd sub nom. Harrison v. Schaeffer, 383 U. S. 269 (1966). Cf. City of Richmond v. United States, 422 U. S. 358, 379 (1975) (BRENNAN, J., dissenting). We also draw on the Court's practice in the apportionment and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. This limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act. Cf. Georgia v. United States, 411 U. S. 526, 541 (1973); Fortson v. Morris, 385 U. S. 231, 235 (1966); Maryland Comm. v. Tawes, 377 U. S. 656, 675-676 (1964).",The Commission's Powers
+324,109974,1,1,"
+Taxpayer is a Delaware corporation with principal place of business in Illinois. It manufactures hand-held power tools, parts and accessories, and rubber products. At its various plants and service branches, Thor maintains inventories of raw materials, work-in-process, finished parts and accessories, and completed tools. At all times relevant, Thor has used, both for financial accounting and for income tax purposes, the lower of cost or market method of valuing inventories. App. 23-24. See Treas. Reg. § 1.471-2 (c), 26 CFR § 1.471-2 (c) (1978). Thor's tools typically contain from 50 to 200 parts, each of which taxpayer stocks to meet demand for replacements. Because of the difficulty, at the time of manufacture, of predicting the future demand for various parts, taxpayer produced liberal quantities of each part to avoid subsequent production runs. Additional runs entail costly retooling and result in delays in filling orders. App. 54-55. In 1960, Thor instituted a procedure for writing down the inventory value of replacement parts and accessories for tool models it no longer produced. It created an inventory contra-account and credited that account with 10% of each part's cost for each year since production of the parent model had ceased. 64 T. C., at 156-157; App. 24. The effect of the procedure was to amortize the cost of these parts over a 10-year period. For the first nine months of 1964, this produced a write-down of $22,090. 64 T. C., at 157; App. 24. In late 1964, new management took control and promptly concluded that Thor's inventory in general was overvalued. [1] After a physical inventory taken at all locations of the tool and rubber divisions, id., at 52, management wrote off approximately $2.75 million of obsolete parts, damaged or defective tools, demonstration or sales samples, and similar items. Id., at 52-53. The Commissioner allowed this writeoff because Thor scrapped most of the articles shortly after their removal from the 1964 closing inventory. [2] Management also wrote down $245,000 of parts stocked for three unsuccessful products. Id., at 56. The Commissioner allowed this write-down, too, since Thor sold these items at reduced prices shortly after the close of 1964. Id., at 62. This left some 44,000 assorted items, the status of which is the inventory issue here. Management concluded that many of these articles, mostly spare parts, [3] were excess inventory, that is, that they were held in excess of any reasonably foreseeable future demand. It was decided that this inventory should be written down to its net realizable value, which, in most cases, was scrap value. 64 T. C., at 160-161; Brief for Petitioner 9; Tr. of Oral Arg. 11. Two methods were used to ascertain the quantity of excess inventory. Where accurate data were available, Thor forecast future demand for each item on the basis of actual 1964 usage, that is, actual sales for tools and service parts, and actual usage for raw materials, work-in-process, and production parts. Management assumed that future demand for each item would be the same as it was in 1964. Thor then applied the following aging schedule: the quantity of each item corresponding to less than one year's estimated demand was kept at cost; the quantity of each item in excess of two years' estimated demand was written off entirely; and the quantity of each item corresponding to from one to two years' estimated demand was written down by 50% or 75%. App. 26. [4] Thor presented no statistical evidence to rationalize these percentages or this time frame. In the Tax Court, Thor's president justified the formula by citing general business experience, and opined that it was somewhat in between possible alternative solutions. [5] This first method yielded a total write-down of $744,030. 64 T. C., at 160. At two plants where 1964 data were inadequate to permit forecasts of future demand, Thor used its second method for valuing inventories. At these plants, the company employed flat percentage write-downs of 5%, 10%, and 50% for various types of inventory. [6] Thor presented no sales or other data to support these percentages. Its president observed that this is not a precise way of doing it, but said that the company felt some adjustment of this nature was in order, and these figures represented our best estimate of what was required to reduce the inventory to net realizable value. App. 67. This second method yielded a total write-down of $160,832. 64 T. C., at 160. Although Thor wrote down all its excess inventory at once, it did not immediately scrap the articles or sell them at reduced prices, as it had done with the $3 million of obsolete and damaged inventory, the write-down of which the Commissioner permitted. Rather, Thor retained the excess items physically in inventory and continued to sell them at original prices. Id., at 160-161. The company found that, owing to the peculiar nature of the articles involved, [7] price reductions were of no avail in moving this excess inventory. As time went on however, Thor gradually disposed of some of these items as scrap; the record is unclear as to when these dispositions took place. [8] Thor's total write-down of excess inventory in 1964 therefore was: Ten-year amortization of parts for discontinued tools $22,090 First method (aging formula based on 1964 usage) 744,030 Second method (flat percentage write-downs) 160,832 _________ Total $926,952 Thor credited this sum to its inventory contra-account, thereby decreasing closing inventory, increasing cost of goods sold, and decreasing taxable income for the year by that amount. [9] The company contended that, by writing down excess inventory to scrap value, and by thus carrying all inventory at net realizable value, it had reduced its inventory to market in accord with its lower of cost or market method of accounting. On audit, the Commissioner disallowed the write-down in its entirety, asserting that it did not serve clearly to reflect Thor's 1964 income for tax purposes. The Tax Court, in upholding the Commissioner's determination, found as a fact that Thor's write-down of excess inventory did conform to generally accepted accounting principles; indeed, the court was thoroughly convinced . . . that such was the case. Id., at 165. The court found that if Thor had failed to write down its inventory on some reasonable basis, its accountants would have been unable to give its financial statements the desired certification. Id., at 161-162. The court held, however, that conformance with generally accepted accounting principles is not enough; § 446 (b), and § 471 as well, of the 1954 Code, 26 U. S. C. §§ 446 (b) and 471, prescribe, as an independent requirement, that inventory accounting methods must clearly reflect income. The Tax Court rejected Thor's argument that its write-down of excess inventory was authorized by Treasury Regulations, 64 T. C., at 167-171, and held that the Commissioner had not abused his discretion in determining that the write-down failed to reflect 1964 income clearly.
+Inventory accounting is governed by §§ 446 and 471 of the Code, 26 U. S. C. §§ 446 and 471. Section 446 (a) states the general rule for methods of accounting: Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books. Section 446 (b) provides, however, that if the method used by the taxpayer does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the [Commissioner], does clearly reflect income. Regulations promulgated under § 446, and in effect for the taxable year 1964, state that no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income. Treas. Reg. § 1.446-1 (a) (2), 26 CFR § 1.446-1 (a) (2) (1964). [10] Section 471 prescribes the general rule for inventories. It states: Whenever in the opinion of the [Commissioner] the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventory shall be taken by such taxpayer on such basis as the [Commissioner] may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income. As the Regulations point out, § 471 obviously establishes two distinct tests to which an inventory must conform. First, it must conform as nearly as may be to the best accounting practice, a phrase that is synonymous with generally accepted accounting principles. Second, it must clearly reflect the income. Treas. Reg. § 1.471-2 (a) (2), 26 CFR § 1.471-2 (a) (2) (1964). It is obvious that on their face, §§ 446 and 471, with their accompanying Regulations, vest the Commissioner with wide discretion in determining whether a particular method of inventory accounting should be disallowed as not clearly reflective of income. This Court's cases confirm the breadth of this discretion. In construing § 446 and its predecessors, the Court has held that [t]he Commissioner has broad powers in determining whether accounting methods used by a taxpayer clearly reflect income. Commissioner v. Hansen, 360 U. S. 446, 467 (1959). Since the Commissioner has [m]uch latitude for discretion, his interpretation of the statute's clear-reflection standard should not be interfered with unless clearly unlawful. Lucas v. American Code Co., 280 U. S. 445, 449 (1930). To the same effect are United States v. Catto, 384 U. S. 102, 114 (1966); Schlude v. Commissioner, 372 U. S. 128, 133-134 (1963); American Automobile Assn. v. United States, 367 U. S. 687, 697-698 (1961); Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 189-190 (1957); Brown v. Helvering, 291 U. S. 193, 203 (1934). In construing § 203 of the Revenue Act of 1918, 40 Stat. 1060, a predecessor of § 471, the Court held that the taxpayer bears a heavy burden of [proof], and that the Commissioner's disallowance of an inventory accounting method is not to be set aside unless shown to be plainly arbitrary. Lucas v. Structural Steel Co., 281 U. S. 264, 271 (1930). As has been noted, the Tax Court found as a fact in this case that Thor's write-down of excess inventory conformed to generally accepted accounting principles and was within the term, `best accounting practice,' as that term is used in section 471 of the Code and the regulations promulgated under that section. 64 T. C., at 161, 165. Since the Commissioner has not challenged this finding, there is no dispute that Thor satisfied the first part of § 471's two-pronged test. The only question, then, is whether the Commissioner abused his discretion in determining that the write-down did not satisfy the test's second prong in that it failed to reflect Thor's 1964 income clearly. Although the Commissioner's discretion is not unbridled and may not be arbitrary, we sustain his exercise of discretion here, for in this case the write-down was plainly inconsistent with the governing Regulations which the taxpayer, on its part, has not challenged. [11] It has been noted above that Thor at all pertinent times used the lower of cost or market method of inventory accounting. The rules governing this method are set out in Treas. Reg. § 1.471-4, 26 CFR § 1.471-4 (1964). That Regulation defines market to mean, ordinarily, the current bid price prevailing at the date of the inventory for the particular merchandise in the volume in which usually purchased by the taxpayer. § 1.471-4 (a). The courts have uniformly interpreted bid price to mean replacement cost, that is, the price the taxpayer would have to pay on the open market to purchase or reproduce the inventory items. [12] Where no open market exists, the Regulations require the taxpayer to ascertain bid price by using such evidence of a fair market price at the date or dates nearest the inventory as may be available, such as specific purchases or sales by the taxpayer or others in reasonable volume and made in good faith, or compensation paid for cancellation of contracts for purchase commitments. § 1.471-4 (b). The Regulations specify two situations in which a taxpayer is permitted to value inventory below market as so defined. The first is where the taxpayer in the normal course of business has actually offered merchandise for sale at prices lower than replacement cost. Inventories of such merchandise may be valued at those prices less direct cost of disposition, and the correctness of such prices will be determined by reference to the actual sales of the taxpayer for a reasonable period before and after the date of the inventory. Ibid. The Regulations warn that prices which vary materially from the actual prices so ascertained will not be accepted as reflecting the market. Ibid. The second situation in which a taxpayer may value inventory below replacement cost is where the merchandise itself is defective. If goods are unsalable at normal prices or unusable in the normal way because of damage, imperfections, shop wear, changes of style, odd or broken lots, or other similar causes, the taxpayer is permitted to value the goods at bona fide selling prices less direct cost of disposition. § 1.471-2 (c). The Regulations define bona fide selling price to mean an actual offering of goods during a period ending not later than 30 days after inventory date. Ibid. The taxpayer bears the burden of proving that such exceptional goods as are valued upon such selling basis come within the classifications indicated, and is required to maintain such records of the disposition of the goods as will enable a verification of the inventory to be made. Ibid. From this language, the regulatory scheme is clear. The taxpayer must value inventory for tax purposes at cost unless the market is lower. Market is defined as replacement cost, and the taxpayer is permitted to depart from replacement cost only in specified situations. When it makes any such departure, the taxpayer must substantiate its lower inventory valuation by providing evidence of actual offerings, actual sales, or actual contract cancellations. In the absence of objective evidence of this kind, a taxpayer's assertions as to the market value of its inventory are not cognizable in computing its income tax. It is clear to us that Thor's procedures for writing down the value of its excess inventory were inconsistent with this regulatory scheme. Although Thor conceded that an active market prevailed on the inventory date, see 64 T. C., at 169, it made no effort to determine the purchase or reproduction cost of its excess inventory. Id., at 162. Thor thus failed to ascertain market in accord with the general rule of the Regulations. In seeking to depart from replacement cost, Thor failed to bring itself within either of the authorized exceptions. Thor is not able to take advantage of § 1.471-4 (b) since, as the Tax Court found, the company failed to sell its excess inventory or offer it for sale at prices below replacement cost. 64 T. C., at 160-161. Indeed, Thor concedes that it continued to sell its excess inventory at original prices. Thor also is not able to take advantage of § 1.471-2 (c) since, as the Tax Court and the Court of Appeals both held, it failed to bear the burden of proving that its excess inventory came within the specified classifications. 64 T. C., at 171; 563 F. 2d, at 867. Actually, Thor's excess inventory was normal and unexceptional, and was indistinguishable from and intermingled with the inventory that was not written down. More importantly, Thor failed to provide any objective evidence whatever that the excess inventory had the market value management ascribed to it. The Regulations demand hard evidence of actual sales and further demand that records of actual dispositions be kept. The Tax Court found, however, that Thor made no sales and kept no records. 64 T. C., at 171. Thor's management simply wrote down its closing inventory on the basis of a well-educated guess that some of it would never be sold. The formulae governing this write-down were derived from management's collective business experience; the percentages contained in those formulae seemingly were chosen for no reason other than that they were multiples of five and embodied some kind of anagogical symmetry. The Regulations do not permit this kind of evidence. If a taxpayer could write down its inventories on the basis of management's subjective estimates of the goods' ultimate salability, the taxpayer would be able, as the Tax Court observed, id., at 170, to determine how much tax it wanted to pay for a given year. [13] For these reasons, we agree with the Tax Court and with the Seventh Circuit that the Commissioner acted within his discretion in deciding that Thor's write-down of excess inventory failed to reflect income clearly. In the light of the well-known potential for tax avoidance that is inherent in inventory accounting, [14] the Commissioner in his discretion may insist on a high evidentiary standard before allowing write-downs of inventory to market. Because Thor provided no objective evidence of the reduced market value of its excess inventory, its write-down was plainly inconsistent with the Regulations, and the Commissioner properly disallowed it. [15]
+The taxpayer's major argument against this conclusion is based on the Tax Court's clear finding that the write-down conformed to generally accepted accounting principles. Thor points to language in Treas. Reg. § 1.446-1 (a) (2), 26 CFR § 1.446-1 (a) (2) (1964), to the effect that [a] method of accounting which reflects the consistent application of generally accepted accounting principles . . . will ordinarily be regarded as clearly reflecting income (emphasis added). Section 1.471-2 (b), 26 CFR § 1.471-2 (b) (1964), of the Regulations likewise stated that an inventory taken in conformity with best accounting practice can, as a general rule, be regarded as clearly reflecting . . . income (emphasis added). [16] These provisions, Thor contends, created a presumption that an inventory practice conformable to generally accepted accounting principles is valid for income tax purposes. Once a taxpayer has established this conformity, the argument runs, the burden shifts to the Commissioner affirmatively to demonstrate that the taxpayer's method does not reflect income clearly. Unless the Commissioner can show that a generally accepted method demonstrably distorts income, Brief for Chamber of Commerce of the United States as Amicus Curiae 3, or that the taxpayer's adoption of such method was motivated by tax avoidance, Brief for Petitioner 25, the presumption in the taxpayer's favor will carry the day. The Commissioner, Thor concludes, failed to rebut that presumption here. If the Code and Regulations did embody the presumption petitioner postulates, it would be of little use to the taxpayer in this case. As we have noted, Thor's write-down of excess inventory was inconsistent with the Regulations; any general presumption obviously must yield in the face of such particular inconsistency. We believe, however, that no such presumption is present. Its existence is insupportable in light of the statute, the Court's past decisions, and the differing objectives of tax and financial accounting. First, as has been stated above, the Code and Regulations establish two distinct tests to which an inventory must conform. The Code and Regulations, moreover, leave little doubt as to which test is paramount. While § 471 of the Code requires only that an accounting practice conform as nearly as may be to best accounting practice, § 1.446-1 (a) (2) of the Regulations states categorically that  no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income (emphasis added). Most importantly, the Code and Regulations give the Commissioner broad discretion to set aside the taxpayer's method if, in [his] opinion, it does not reflect income clearly. This language is completely at odds with the notion of a presumption in the taxpayer's favor. The Regulations embody no presumption; they say merely that, in most cases, generally accepted accounting practices will pass muster for tax purposes. And in most cases they will. But if the Commissioner, in the exercise of his discretion, determines that they do not, he may prescribe a different practice without having to rebut any presumption running against the Treasury. Second, the presumption petitioner postulates finds no support in this Court's prior decisions. It was early noted that the general rule specifying use of the taxpayer's method of accounting is expressly limited to cases where the Commissioner believes that the accounts clearly reflect the net income. Lucas v. American Code Co., 280 U. S., at 449. More recently, it was held in American Automobile Assn. v. United States that a taxpayer must recognize prepaid income when received, even though this would mismatch expenses and revenues in contravention of generally accepted commercial accounting principles. 367 U. S., at 690. [T]o say that in performing the function of business accounting the method employed by the Association `is in accord with generally accepted commercial accounting principles and practices,' the Court concluded, is not to hold that for income tax purposes it so clearly reflects income as to be binding on the Treasury. Id., at 693. [W]e are mindful that the characterization of a transaction for financial accounting purposes, on the one hand, and for tax purposes, on the other, need not necessarily be the same. Frank Lyon Co. v. United States, 435 U. S. 561, 577 (1978). See Commissioner v. Idaho Power Co., 418 U. S. 1, 15 (1974). Indeed, the Court's cases demonstrate that divergence between tax and financial accounting is especially common when a taxpayer seeks a current deduction for estimated future expenses or losses. E. g., Commissioner v. Hansen, 360 U. S. 446 (1959) (reserve to cover contingent liability in event of nonperformance of guarantee); Brown v. Helvering, 291 U. S. 193 (1934) (reserve to cover expected liability for unearned commissions on anticipated insurance policy cancellations); Lucas v. American Code Co., supra (reserve to cover expected liability on contested lawsuit). The rationale of these cases amply encompasses Thor's aim. By its president's concession, the company's write-down of excess inventory was founded on the belief that many of the articles inevitably would become useless due to breakage, technological change, fluctuations in market demand, and the like. [17] Thor, in other words, sought a current deduction for an estimated future loss. Under the decided cases, a taxpayer so circumstanced finds no shelter beneath an accountancy presumption. Third, the presumption petitioner postulates is insupportable in light of the vastly different objectives that financial and tax accounting have. The primary goal of financial accounting is to provide useful information to management, shareholders, creditors, and others properly interested; the major responsibility of the accountant is to protect these parties from being misled. The primary goal of the income tax system, in contrast, is the equitable collection of revenue; the major responsibility of the Internal Revenue Service is to protect the public fisc. Consistently with its goals and responsibilities, financial accounting has as its foundation the principle of conservatism, with its corollary that possible errors in measurement [should] be in the direction of understatement rather than overstatement of net income and net assets. [18] In view of the Treasury's markedly different goals and responsibilities, understatement of income is not destined to be its guiding light. Given this diversity, even contrariety, of objectives, any presumptive equivalency between tax and financial accounting would be unacceptable. [19] This difference in objectives is mirrored in numerous differences of treatment. Where the tax law requires that a deduction be deferred until all the events have occurred that will make it fixed and certain, United States v. Anderson, 269 U. S. 422, 441 (1926), accounting principles typically require that a liability be accrued as soon as it can reasonably be estimated. [20] Conversely, where the tax law requires that income be recognized currently under claim of right, ability to pay, and control rationales, accounting principles may defer accrual until a later year so that revenues and expenses may be better matched. [21] Financial accounting, in short, is hospitable to estimates, probabilities, and reasonable certainties; the tax law, with its mandate to preserve the revenue, can give no quarter to uncertainty. This is as it should be. Reasonable estimates may be useful, even essential, in giving shareholders and creditors an accurate picture of a firm's overall financial health; but the accountant's conservatism cannot bind the Commissioner in his efforts to collect taxes. Only a few reserves voluntarily established as a matter of conservative accounting, Mr. Justice Brandeis wrote for the Court, are authorized by the Revenue Acts. Brown v. Helvering, 291 U. S., at 201-202. Finally, a presumptive equivalency between tax and financial accounting would create insurmountable difficulties of tax administration. Accountants long have recognized that generally accepted accounting principles are far from being a canonical set of rules that will ensure identical accounting treatment of identical transactions. [22] Generally accepted accounting principles, rather, tolerate a range of reasonable treatments, leaving the choice among alternatives to management. Such, indeed, is precisely the case here. [23] Variances of this sort may be tolerable in financial reporting, but they are questionable in a tax system designed to ensure as far as possible that similarly situated taxpayers pay the same tax. If management's election among acceptable options were dispositive for tax purposes, a firm, indeed, could decide unilaterally—within limits dictated only by its accountants—the tax it wished to pay. Such unilateral decisions would not just make the Code inequitable; they would make it unenforceable.
+Thor complains that a decision adverse to it poses a dilemma. According to the taxpayer, it would be virtually impossible for it to offer objective evidence of its excess inventory's lower value, since the goods cannot be sold at reduced prices; even if they could be sold, says Thor, their reduced-price sale would just pull the rug out from under the identical non-excess inventory Thor is trying to sell simultaneously. The only way Thor could establish the inventory's value by a closed transaction would be to scrap the articles at once. Yet immediate scrapping would be undesirable, for demand for the parts ultimately might prove greater than anticipated. The taxpayer thus sees itself presented with an unattractive Hobson's choice: either the unsalable inventory must be carried for years at its cost instead of net realizable value, thereby overstating taxable income by such overvaluation until it is scrapped, or the excess inventory must be scrapped prematurely to the detriment of the manufacturer and its customers. Brief for Petitioner 25. If this is indeed the dilemma that confronts Thor, it is in reality the same choice that every taxpayer who has a paper loss must face. It can realize its loss now and garner its tax benefit, or it can defer realization, and its deduction, hoping for better luck later. Thor, quite simply, has suffered no present loss. It deliberately manufactured its excess spare parts because it judged that the marginal cost of unsalable inventory would be lower than the cost of retooling machinery should demand surpass expectations. This was a rational business judgment and, not unpredictably, Thor now has inventory it believes it cannot sell. Thor, of course, is not so confident of its prediction as to be willing to scrap the excess parts now; it wants to keep them on hand, just in case. This, too, is a rational judgment, but there is no reason why the Treasury should subsidize Thor's hedging of its bets. There is also no reason why Thor should be entitled, for tax purposes, to have its cake and to eat it too.",The Inventory Issue
+325,109974,1,2,"
+Deductions for bad debts are covered by § 166 of the 1954 Code, 26 U. S. C. § 166. Section 166 (a) (1) sets forth the general rule that a deduction is allowed for any debt which becomes worthless within the taxable year. Alternatively, the Code permits an accrual-basis taxpayer to account for bad debts by the reserve method. This is implemented by § 166 (c), which states that [i]n lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the [Commissioner]) a deduction for a reasonable addition to a reserve for bad debts. A reasonable addition is the amount necessary to bring the reserve balance up to the level that can be excepted to cover losses properly anticipated on debts outstanding at the end of the tax year. At all times pertinent, Thor has used the reserve method. Its reserve at the beginning of 1965 was approximately $93,000. See 64 T. C., at 162. During 1965, Thor's new management undertook a stringent review of accounts receivable. In the company's rubber division, credit personnel studied all accounts; a 100% reserve was set up for two accounts deemed wholly uncollectible, and a 1% reserve was established for all other receivables. Ibid. In the tool division, credit clerks analyzed all accounts more than 90 days past due with balances over $100; a 100% reserve was established for accounts judged wholly uncollectible, and an identical collectibility ratio was applied to accounts under $100 of the same age. A flat 2% reserve was set up for accounts more than 30 days past due, and a 1% reserve for all other accounts. Id., at 162-163. These judgments, approved by three levels of management, indicated that $136,150 should be added to the bad-debt reserve, bringing its balance at year-end to a figure slightly below $229,000. Id., at 162. Thor claimed this $136,150 as a deduction under § 166 (c). The Commissioner ruled that the deduction was excessive. He computed what he believed to be a reasonable addition to Thor's reserve by using the six-year moving average formula derived from the decision in Black Motor Co. v. Commissioner, 41 B. T. A. 300 (1940), aff'd on other grounds, 125 F. 2d 977 (CA6 1942). This formula seeks to ascertain a reasonable addition to a bad-debt reserve in light of the taxpayer's recent chargeoff history. [24] In this case, the formula indicated that, for the years 1960-1965, Thor's annual chargeoffs of bad debts amounted, on the average, to 3.128% of its year-end receivables. 64 T. C., at 163. Applying that percentage to Thor's 1965 year-end receivables, the Commissioner determined that $154,156.80 of accounts receivable could reasonably be expected to default. The amount required to bring Thor's reserve up to this level was $61,359.20, and the Commissioner decided that this was a reasonable addition. Accordingly, he disallowed the remaining $74,790.80 of Thor's claimed § 166 (c) deduction. Both the Tax Court, 64 T. C., at 174-175, and the Seventh Circuit, 563 F. 2d, at 870, held that the Commissioner had not abused his discretion in so ruling.
+Section 166 (c) states that a deduction for an addition to a bad-debt reserve is to be allowed in the discretion of the Commissioner. Consistently with this statutory language, the courts uniformly have held that the Commissioner's determination of a reasonable (and hence deductible) addition must be sustained unless the taxpayer proves that the Commissioner abused his discretion. [25] The taxpayer is said to bear a heavy burden in this respect. [26] He must show not only that his own computation is reasonable but also that the Commissioner's computation is unreasonable and arbitrary. [27] Since it first received the approval of the Tax Court in 1940, the Black Motor bad-debt formula has enjoyed the favor of all three branches of the Federal Government. The formula has been employed consistently by the Commissioner, [28] approved by the courts, [29] and collaterally recognized by the Congress. [30] Thor faults the Black Motor formula because of its retrospectively: By ascertaining current additions to a reserve by reference to past chargeoff experience, the formula assertedly penalizes taxpayers who have delayed in making writeoffs in the past, or whose receivables have just recently begun to deteriorate. Petitioner's objection is not altogether irrational, but it falls short of rendering the formula arbitrary. Common sense suggests that a firm's recent credit experience offers a reasonable index of the credit problems it may suffer currently. And the formula possesses the not inconsiderable advantage of enhancing certainty and predictability in an area peculiarly susceptible of taxpayer abuse. In any event, after its 40 years of near-universal acceptance, we are not inclined to disturb the Black Motor formula now. Granting that Black Motor in principle is valid, then, the only question is whether the Commissioner abused his discretion in invoking the formula in this case. Of course, there will be cases—indeed, the Commissioner has acknowledged that there are cases, see Rev. Rul. 76-362, 1976-2 Cum. Bull. 45, 46—in which the formula will generate an arbitrary result. If a taxpayer's most recent bad-debt experience is unrepresentative for some reason, a formula using that experience as data cannot be expected to produce a reasonable addition for the current year. [31] If the taxpayer suffers an extraordinary credit reversal (the bankruptcy of a major customer, for example), the six-year moving average formula will fail. [32] In such a case, where the taxpayer can point to conditions that will cause future debt collections to be less likely than in the past, the taxpayer is entitled to—and the Commissioner is prepared to allow—an addition larger than Black Motor would call for. See Rev. Rul. 76-362, supra. In this case, however, as the Tax Court found, Thor did not show that conditions at the end of 1965 would cause collection of accounts receivable to be less likely than in prior years. 64 T. C., at 175. Indeed, the Tax Court infer[red] from the entire record that collectibility was probably more likely at the end of 1965 than it was [previously] because new management had been infused into petitioner (emphasis added). Thor cited no changes in the conditions of business generally or of its customers specifically that would render the Black Motor formula unreliable; new management just came in and second-guessed its predecessor, taking a tougher approach. Management's pessimism may not have been unreasonable, but the Commissioner had the discretion to take a more sanguine view. [33] For these reasons, we agree with the Tax Court and with the Court of Appeals that the Commissioner did not abuse his discretion in recomputing a reasonable addition to Thor's bad-debt reserve according to the Black Motor formula. Thor failed to carry its heavy burden of showing why the application of that formula would have been arbitrary in this case. The judgment of the Court of Appeals is affirmed. It is so ordered.",The Bad-Debt Issue
+326,110130,1,2,"The Secretary advances two arguments in support of the constitutionality of § 407. First, he contends that although § 407 incorporates a gender distinction, it does not discriminate against women as a class. Second, he urges that the distinction is substantially related to the achievement of an important governmental objective: the need to deter real or pretended desertion by the father in order to make his family eligible for AFDC benefits.
+The Secretary readily concedes that § 407 entails a gender distinction. Brief for Appellant in No. 78-437, p. 36. He submits, however, that the Act does not award AFDC benefits to a father where it denies them to a mother. Rather, the grant or denial of aid based on the father's unemployment necessarily affects, to an equal degree, one man, one woman, and one or more children. As the Secretary puts it, even if the statute is gender-based, it is not gender-biased. Ibid. We are not persuaded by this analysis. For mothers who are the primary providers for their families, and who are unemployed, § 407 is obviously gender biased, for it deprives them and their families of benefits solely on the basis of their sex. The Secretary's argument, at bottom, turns on the fact that the impact of the gender qualification is felt by family units rather than individuals. But this Court has not hesitated to strike down gender classifications that result in benefits being granted or denied to family units on the basis of the sex of the qualifying parent. See Frontiero v. Richardson, 411 U. S. 677 (1973) (military quarters allowances and medical and dental benefits); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) (survivor's benefits); Califano v. Goldfarb, 430 U. S. 199 (1977) (survivor's benefits); Califano v. Jablon, 430 U. S. 924 (1977), summarily aff'g 399 F. Supp. 118 (Md. 1975) (spousal benefits). Here, as in those cases, the statute discriminates against one particular category of family—that in which the female spouse is a wage earner. Goldfarb, 430 U. S., at 209 (plurality opinion). The Secretary appears to acknowledge the force of these precedents, but suggests that each involved benefits that either were a form of compensation earned by a woman as a member of the labor force, or were directly related to such compensation. In the present case, in contrast, the benefits are part of a noncontributory welfare program. Thus, the Secretary argues, the gender qualification of § 407 is distinguishable from those contained in the earlier cases, for it does not denigrate the efforts of women who do work and whose earnings contribute significantly to their families' support. Wiesenfeld, 420 U. S., at 645. The distinction between employment-related benefits and other forms of government largesse may be relevant to equal protection analysis, for example in determining whether the differential treatment of survivor's benefits denigrates the efforts of the deceased spouse. Wiesenfeld, 420 U. S., at 645-647; Goldfarb, 430 U. S., at 206-207 (plurality opinion). This does not mean, however, that the Constitution is indifferent to a statute that conditions the availability of noncontributory welfare benefits on the basis of gender. The Secretary's argument to the contrary in effect invites a return to the discredited view that welfare benefits are a privilege not subject to the guarantee of equal protection. See Graham v. Richardson, 403 U. S. 365, 374 (1971). Putting labels aside, the exclusion here is if anything more pernicious than those in Frontiero, Wiesenfeld, and Goldfarb. AFDC-UF benefits are not fringe benefits, nor are they a type of social assistance paid without regard to need. Rather, they are subsistence payments made available as a last resort to families that would otherwise lack basic necessities. The deprivation imposed by § 407, moreover, is not a mere procedural barrier, like the proof-of-dependency requirement in Frontiero and Goldfarb, but is an absolute bar to qualification for aid. We therefore reject the contention that the classification imposed by § 407 does not discriminate on the basis of gender.
+The Secretary next argues that the gender distinction imposed by § 407 survives constitutional scrutiny because it is substantially related to achievement of an important governmental objective. Orr v. Orr, 440 U. S. 268, 279 (1979); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190. 197 (1976). The Secretary identifies two important objectives served by § 407. First and most obviously, the statute was intended to provide aid for children deprived of basic sustenance because of a parent's unemployment. H. R. Rep. No. 28, 87th Cong., 1st Sess., 2 (1961). As then HEW Secretary Ribicoff put it in testimony before the House Ways and Means Committee, there is no justification whatsoever for denying to the child of the unemployed parent the food that you give to the child of the parent who deserts or is absent or dead. Hearings on H. R. 3864 and 3865 before the House Committee on Ways and Means, 87th Cong., 1st Sess., 102 (1961). The appellant Secretary does not contend, however, that the gender qualification of § 407 serves to achieve this goal. Tr. of Oral Arg. 6, 7-8. Nor could he, since families where the mother is the principal wage earner and is unemployed are often in as much need of AFDC-UF benefits and Medicaid as families where the father is unemployed. Second, the statute was designed to remedy a structural fault in the original AFDC program. Under that program, a family was eligible for benefits if deprived of parental support because of the continued absence from the home . . . of a parent. 42 U. S. C. § 606 (a). In times of economic adversity, this provision was thought to create an incentive for the father to desert, or to pretend to desert, in order to make the family eligible for assistance. Section 407, by providing AFDC benefits to families rendered needy by parental unemployment, was intended to reduce this incentive and thereby promote the goal of family stability. The Secretary submits that reducing the incentive for the father to desert was an important objective of the AFDC-UF program, and he argues that the gender qualification is substantially related to its achievement. We perceive, however, at least two flaws in this argument. Although it is relatively clear that Congress was concerned about the problem of parental desertion, see S. Rep. No. 744. 90th Cong., 1st Sess., 160 (1967); H. R. Rep. No. 28, 87th Cong., 1st Sess.,2 (1961), there is no evidence that the gender distinction was designed to address this problem. See Weinberger v. Wiesenfeld, 420 U. S., at 648. Both the original AFDC program, and the temporary versions of the AFDC-UF program enacted in 1961 and 1962, were gender neutral. The gender qualification added to the permanent version of AFDC-UF in 1968 escaped virtually unnoticed in the hearings and floor debates. [5] The only explanation for this addition is contained in the following passage, which appears in nearly identical form in both the House and Senate Reports: This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers. However, some States make families in which the father is working but the mother is unemployed eligible for assistance. The bill would not allow such situations. Under the bill, the program could apply only to the children of unemployed fathers. S. Rep. No. 744, at 160. See also H. R. Rep. No. 554, 90th Cong., 1st Sess., 108 (1967). This suggests that the gender qualification was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs. [6] Congress was concerned that certain States were making AFDC-UF assistance available to families where the mother was out of work, but the father remained fully employed and able to support the family. Apparently, Congress was not similarly concerned about States making benefits available where the father was out of work, but the mother remained fully employed. From all that appears, Congress, with an image of the traditional family in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary. In short, the available evidence indicates that the gender distinction was inserted to reduce costs and eliminate what was perceived to be a type of superfluous eligibility for AFDC-UF benefits. There is little to suggest that the gender qualification had anything to do with reducing the father's incentive to desert. [7] Even if the actual purpose of the gender qualification was to deal with the problem of paternal desertion, it does not appear that the classification is substantially related to the achievement of that goal. The Secretary argues there is [s]olid statistical evidence that fathers are more susceptible to pressure to desert than mothers, and thus that Congress was justified in excluding families headed by unemployed mothers from the AFDC-UF program. Brief for Appellant in No. 78-437, p. 33. We may assume, for purposes of discussion, that Congress could legitimately view paternal desertion as a problem separate and distinct from maternal desertion. Even so, the gender qualification of § 407 is not substantially related to the stated purpose. There is no evidence, in the legislative history or elsewhere, that a father has less incentive to desert in a family where the mother is the breadwinner and becomes unemployed, than in a family where the father is the breadwinner and becomes unemployed. In either case, the family's need will be equally great, and the father will be equally subject to pressure to leave the home to make the family eligible for benefits. The Secretary urges that Congress could take one firm step toward the goal of eliminating the incentive to desert, quoting Califano v. Jobst, 434 U. S. 47, 57-58 (1977). But Congress may not legislate one step at a time when that step is drawn along the line of gender, and the consequence is to exclude one group of families altogether from badly needed subsistence benefits. Cf. Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955). We conclude that the gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals. It is, rather, part of the baggage of sexual stereotypes, Orr v. Orr, 440 U. S., at 283, that presumes the father has the primary responsibility to provide a home and its essentials, Stanton v. Stanton, 421 U. S. 7, 10 (1975), while the mother is the `center of home and family life.' Taylor v. Louisiana, 419 U. S. 522, 534 n. 15 (1975). Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment.",the secretary's appeal
+327,110130,1,3,"
+Where a statute is defective because of underinclusion, Mr. Justice Harlan noted, there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion. Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result). In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. See, e.g., Jimenez v. Weinberger, 417 U. S. 628, 637-638 (1974); Frontiero v. Richardson, 411 U. S., at 691 and n. 25 (plurality opinion). Indeed, this Court regularly has affirmed District Court judgments ordering that welfare benefits be paid to members of an unconstitutionally excluded class. E. g., Califano v. Goldfarb, 430 U. S. 199 (1977), aff'g 396 F. Supp. 308, 309 (EDNY 1975); Califano v. Silbowitz, 430 U. S. 924 (1977), summarily aff'g 397 F. Supp. 862, 871 (SD Fla. 1975); Jablon v. Califano, 430 U. S. 924 (1977), summarily aff'g 399 F. Supp. 118, 132-133 (Md. 1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), aff'g 367 F. Supp. 981, 991 (NJ 1973); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), aff'g 345 F. Supp. 310, 315-316 (DC 1972); Richardson v. Griffin, 409 U. S. 1069 (1972), summarily aff'g 346 F. Supp. 1226, 1237 (Md.). The District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice. Approximately 300,000 needy children currently receive AFDC-UF benefits, see 42 Soc. Sec. Bull. 78 (Jan. 1979), and an injunction suspending the program's operation would impose hardship on beneficiaries whom Congress plainly meant to protect. The presence in the Social Security Act of a strong severability clause, 42 U. S. C. § 1303, [8] likewise counsels against nullification, for it evidences a congressional intent to minimize the burdens imposed by a declaration of unconstitutionality upon innocent recipients of government largesse. There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an under-inclusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy. Juris. Statement in No. 78-689, p. 6; Motion to Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees support that remedy here, and the Secretary, while arguing in favor of § 407's constitutionality, urges that, if the statute is invalidated, the District Court's remedy should be affirmed. Brief for Federal Appellee in No. 78-689, pp. 5-10. The Commissioner likewise argues that extension, rather than nullification, is proper, Tr. of Oral Arg. 18; indeed, the Commissioner did not appeal from the District Court's April 20 extension order, but only from its August 9 refusal to limit extension along principal wage-earner lines. App. to Juris. Statement in No. 78-689, p. 15a. Since no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court. This Court's previous decisions, however, which routinely have affirmed District Court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists.
+The narrower question presented by the Commissioner's appeal concerns not the merits of extension versus nullification, but rather the form that extension should take. The District Court ordered that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act. The Commissioner agrees that either the mother's or the father's unemployment should be able to qualify a needy family for benefits, but proposes to award them only if the parent in question can show that he or she is both unemployed and the family's principal wage-earner. Citing the legislative history of the AFDC-UF program, the Commissioner argues that his proposed remedy comports with Congress' intent to aid families made needy by their breadwinner's unemployment. This argument, as the preceding portions of this opinion show, is not without force. We may assume arguendo that, if Congress knew in 1968 what it knows now, it might well have adopted the principal wage-earner model suggested by the Commissioner. But this does not mean that the AFDC-UF program should be restructured along these lines by a federal court. First, the Commissioner's proposed remedy would have the effect of terminating benefits to many families currently receiving them. Under the Act and implementing regulations, benefits are paid to needy families of all unemployed fathers, whether or not the father is actually the principal wage-earner. See 42 U. S. C. § 607 (a); 45 CFR § 233.100 (a) (1) (1978). No one contends that the Act and regulations, insofar as they provide benefits to families of all unemployed fathers, are invalid. Absent some such showing of invalidity, we would hesitate to terminate needy families' entitlement to statutory benefits merely because the unemployed father cannot prove breadwinner status. Second, the Commissioner's proposed remedy would involve a restructuring of the Act that a court should not undertake lightly. Whenever a court extends a benefits program to redress unconstitutional underinclusiveness, it risks infringing legislative prerogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that father be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The principal wage-earner solution, by contrast, would introduce a term novel in the AFDC scheme, [9] and would pose definitional and policy questions best suited to legislative or administrative elaboration. The Commissioner, with his principal wage-earner gloss on parental unemployment, in essence asks this Court to redefine unemployment within the meaning of the Act. Yet Congress in § 407 (a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes `unemployment' for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. Batterton v. Francis, 432 U. S., at 425 (emphasis in original). The remedy the Commissioner proposes, of course, undeniably would be cheaper than the remedy the District Court decreed, in part because it would terminate some current recipients' eligibility. Although cost may prove a dispositive factor in other contexts, we do not regard it as controlling here. The United States, which will bear the main burden of added coverage through federal matching grants, urges that the District Court's remedy be affirmed. The AFDC-UF program, furthermore, is optional with the States, id., at 431, and any State is free to drop out of it if dissatisfied with the added expense. This Court, in any event, is ill-equipped both to estimate the relative costs of various types of coverage, and to gauge the effect that different levels of expenditures would have upon the alleviation of human suffering. Under these circumstances, any fine-tuning of AFDC coverage along principal wage-earner lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable extension possible. The judgment of the District Court accordingly is affirmed. It is so ordered.",the commissioner's appeal
+328,109087,2,2,"To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents. Indiana Employment Division v. Burney, 409 U. S. 540 (1973); Bailey v. Patterson, 369 U. S. 31 (1962). In granting respondents standing to sue as representatives of the class of all United States citizens, the District Court therefore necessarily—and correctly—characterized respondents' interest as undifferentiated from that of all other citizens. The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the Incompatibility Clause, an interest shared by all citizens. The very language of respondents' complaint, supra, at 212, reveals that it is nothing more than a matter of speculation whether the claimed nonobservance of that Clause deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress. And that claimed nonobservance, standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury. [7] The Court has previously declined to treat generalized grievances about the conduct of Government as a basis for taxpayer standing. Flast v. Cohen, 392 U. S., at 106. We consider now whether a citizen has standing to sue under such a generalized complaint. Our analysis begins with Baker v. Carr, 369 U. S. 186 (1962), where the Court stated that the gist of the inquiry must be whether the complaining party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Id., at 204. Although dealing with a case of claimed taxpayer standing, Flast v. Cohen, supra , gave further meaning to the need for a personal stake in noting that it was meant to assure that the complainant seeking to adjudicate his claim was the proper party to present the claim in an adversary context and in a form historically viewed as capable of judicial resolution. 392 U. S., at 100, 101. In the circumstances of Flast, the Court held that the taxpayer-complainant before it had established a relationship between his status as a taxpayer and his claim under the Taxing and Spending Clause sufficient to give assurance. that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. Id., at 106. While Flast noted that the case or controversy limitation on the federal judicial power found in Art. III is a blend of constitutional requirements and policy considerations, id., at 97, the Court, subsequently, in the context of judicial review of regulatory agency action held that whatever else the case or controversy requirement embodied, its essence is a requirement of injury in fact. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152 (1970). Although we there noted that the categories of judicially cognizable injury were being broadened, id., at 154, we have more recently stressed that the broadening of categories is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury. Sierra Club v. Morton, 405 U. S. 727, 738 (1972). And, in defining the nature of that injury, we have only recently stated flatly: Abstract injury is not enough. O'Shea v. Littleton, 414 U. S. 488, 494 (1974). Ex parte Lévitt, 302 U. S. 633 (1937), was the only other occasion in which the Court faced a question under Art. I, § 6, cl. 2, although that challenge was made under the Ineligibility Clause, not the Incompatibility Clause involved here. There a petition was filed in this Court seeking an order to show cause why one of the Justices should not be disqualified to serve as an Associate Justice. The petition asserted that the appointment and confirmation of the Justice in August 1937 was unlawful because the Act of March 1, 1937, permitting Justices to retire at full salary after a period of specified service, thereby increased the emoluments of the office and that the statute was enacted while the challenged Justice was a Senator. The appointment of the Justice by the President and his confirmation by the Senate were thus said to violate the Ineligibility Clause which provides: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . the Emoluments whereof shall have been encreased during such time . . . . The Court held: The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. 302 U. S., at 634. [8] The Court has today recognized the continued vitality of Lévitt, [9] United States v. Richardson, ante, at 176-179; see also Laird v. Tatum, 408 U. S. 1, 13 (1972). We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance. Such authoritative presentations are an integral part of the judicial process, for a court must rely on the parties' treatment of the facts and claims before it to develop its rules of law. [10] Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions. Moreover, when a court is asked to undertake constitutional adjudication, the most important and delicate of its responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily. This principle is particularly applicable here, where respondents seek an interpretation of a constitutional provision which has never before been construed by the federal courts. First, concrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party. The desire to obtain [sweeping relief] cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks. McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 164 (1914). Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied. This is especially important when the relief sought produces a confrontation with one of the coordinate branches of the Government; here the relief sought would, in practical effect, bring about conflict with two coordinate branches. To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing government by injunction. The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government. Flast v. Cohen, 392 U. S., at 131 (Harlan, J., dissenting). [11] Our conclusion that there is no citizen standing here, apart from being in accord with all other federal courts of appeals that have considered the question, until the Court of Appeals' holding now under review, [12] is also consistent with the recent holdings of this Court. It is one thing for a court to hear an individual's complaint that certain specific government action will cause that person private competitive injury, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), or a complaint that individual enjoyment of certain natural resources has been impaired by such action, United States v. SCRAP, 412 U. S. 669, 687 (1973), but it is another matter to allow a citizen to call on the courts to resolve abstract questions. [13] The former provides the setting for a focused consideration of a concrete injury. In the latter, although allegations assert an arguable conflict with some limitation of the Constitution, it can be only a matter of speculation whether the claimed violation has caused concrete injury to the particular complainant. Finally, the several considerations advanced by the District Court in support of respondents' standing as citizens do not militate against our conclusion that it was error to grant standing to respondents as citizens. First, the District Court acknowledged that any injury resulting from the reservist status of Members of Congress was hypothetical, but stressed that the Incompatibility Clause was designed to prohibit such potential for injury. [14] 323 F. Supp., at 840. This rationale fails, however, to compensate for the respondents' failure to present a claim under that Clause which alleges concrete injury. The claims of respondents here, like the claim under the Ineligibility Clause in Lévitt, supra, would require courts to deal with a difficult and sensitive issue of constitutional adjudication on the complaint of one who does not allege a personal stake in the outcome of the controversy. Baker v. Carr, 369 U. S., at 204. To support standing there must be concrete injury in a form which assures the necessary specificity called for by Flast, 392 U. S., at 106, and that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions. Baker v. Carr, supra, at 204. Standing was thus found by premature evaluation of the merits of respondents' complaint. [15] The District Court next acknowledged this Court's longstanding reluctance to entertain generalized grievances about the conduct of government, Flast v. Cohen, 392 U. S., at 106, but distinguished respondents' complaint from such grievances by characterizing the Incompatibility Clause as precise [and] self-operative. 323 F. Supp., at 840. Even accepting that characterization of the Clause it is not an adequate substitute for the judicially cognizable injury not present here. Moreover, that characterization rested, as did the preceding characterization, on an interpretation of the Clause by way of the Court's preliminary appraisal of the merits of respondents' claim before standing was found. In any event, the Ineligibility Clause involved in Lévitt, supra, is no less specific or less precise [and] self-operative than the Incompatibility Clause. The District Court further relied on the fact that the adverse parties sharply conflicted in their interests and views and were supported by able briefs and arguments. Id., at 841. We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing is not a question of motivation but of possession of the requisite . . . interest that is, or is threatened to be, injured by the unconstitutional conduct. Doremus v. Board of Education, 342 U. S. 429, 435 (1952). This same theme as to the inadequacy of motivation to support standing is suggested in the Court's opinion in Sierra Club, supra : But a mere `interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization `adversely affected' or `aggrieved' within the meaning of the APA. 405 U. S., at 739. Respondents' motivation has indeed brought them sharply into conflict with petitioners, but as the Court has noted, motivation is not a substitute for the actual injury needed by the courts and adversaries to focus litigation efforts and judicial decisionmaking. Moreover, the evaluation of the quality of the presentation on the merits was a retrospective judgment that could have properly been arrived at only after standing had been found so as to permit the court to consider the merits. A logical corollary to this approach would be the manifestly untenable view that the inadequacy of the presentation on the merits would be an appropriate basis for denying standing. Furthermore, to have reached the conclusion that respondents' interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a case or controversy appropriate for judicial resolution. [16] The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries. Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court's observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners' action, then as a practical matter no one can. Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. See United States v. Richardson, ante, at 179.",Citizen Standing
+329,109087,2,3,"Consideration of whether respondents have standing to sue as taxpayers raises a different question from whether they may sue as citizens. Flast v. Cohen, supra , established that status as a taxpayer can, under certain limited circumstances, supply the personal stake essential to standing. There, the Court held that, in order to ensure the necessary personal stake, there must be a logical nexus between the [taxpayer] status asserted and the claim sought to be adjudicated, 392 U. S., at 102. In Flast, the Court determined that the taxpayer demonstrated such a logical nexus because, (1) he challenged the exercise of congressional power under the taxing and spending clause of Art. I, § 8 . . . and (2) the challenged enactment exceed[ed] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power under Art. I, § 8. Id., at 102-103. Here, the District Court, applying the Flast holding, denied respondents' standing as taxpayers for failure to satisfy the nexus test. We agree with that conclusion since respondents did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status. [17] Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.",Taxpayer Standing
+330,106366,1,1,"Because we deal with this case on appeal from an order of dismissal granted on appellees' motions, precise identification of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees' grounds (1) that the Court lacks jurisdiction of the subject matter, and (2) that the complaint fails to state a claim upon which relief can be granted . . . . In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal: First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act; Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants' rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment. We treat the first ground of dismissal as lack of jurisdiction of the subject matter. The second we consider to result in a failure to state a justiciable cause of action. The District Court's dismissal order recited that it was issued in conformity with the court's per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that The action is presently before the Court upon the defendants' motion to dismiss predicated upon three grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and third, that indispensable party defendants are not before the Court. 179 F. Supp., at 826. The court proceeded to explain its action as turning on the case's presenting a question of the distribution of political strength for legislative purposes. For, From a review of [numerous Supreme Court] . . . decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment. 179 F. Supp., at 826. The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F. Supp., at 827-828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation: With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress. 179 F. Supp., at 828. In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes. [16] Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.",the district court's opinion and order of dismissal.
+331,106366,1,2,"The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration—what we have designated nonjusticiability. The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not arise under the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, § 2), or is not a case or controversy within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237. infra, that this cause presents no nonjusticiable political question settles the only possible doubt that it is a case or controversy. Under the present heading of Jurisdiction of the Subject Matter we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U. S. C. § 1343. Article III, § 2, of the Federal Constitution provides that The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . . It is clear that the cause of action is one which arises under the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were so attenuated and unsubstantial as to be absolutely devoid of merit, Newburyport Water Co. v. Newburyport, 193 U. S. 561, 579, or frivolous, Bell v. Hood, 327 U. S. 678, 683. [17] That the claim is unsubstantial must be very plain. Hart v. Keith Vaudeville Exchange, 262 U. S. 271, 274. Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: It is obvious . . . that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States. Swafford v. Templeton, 185 U. S. 487, 493. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Bell v. Hood, 327 U. S. 678, 682. See also Binderup v. Pathe Exchange, 263 U. S. 291, 305-308. Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, § 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U. S. C. § 1343 (3): The district courts shall have original jurisdiction of any civil action authorized by law [18] to be commenced by any person . . . [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . . [19] An unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained Ohio legislation against an attack for repugnancy to Art. I, § 4, of the Federal Constitution, we affirmed on the merits and expressly refused to dismiss for want of jurisdiction In view . . . of the subject-matter of the controversy and the Federal characteristics which inhere in it . . . . Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 570. When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U. S. 355. And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U. S. 375; Carroll v. Becker, 285 U. S. 380. When a three-judge District Court, exercising jurisdiction under the predecessor of 28 U. S. C. § 1343 (3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U. S. 1, reversing 1 F. Supp. 134. A similar decree of a District Court, exercising jurisdiction under the same statute, concerning a Kentucky redistricting act, was reviewed and the decree reversed. Mahan v. Hume, 287 U. S. 575, reversing 1 F. Supp. 142. [20] The appellees refer to Colegrove v. Green, 328 U. S. 549, as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. MR. JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy stated: It is my judgment that the District Court had jurisdiction . . . , citing the predecessor of 28 U. S. C. § 1343 (3), and Bell v. Hood, supra. 328 U. S., at 568. Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U. S., at 564, 565, n. 2. Indeed, it is even questionable that the opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and Burton, doubted jurisdiction of the subject matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U. S., at 551. Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U. S. 675; Turman v. Duckworth , ibid.; Colegrove v. Barrett, 330 U. S. 804; [21] Tedesco v. Board of Supervisors, 339 U. S. 940; Remmey v. Smith, 342 U. S. 916; Cox v. Peters, 342 U. S. 936; Anderson v. Jordan, 343 U. S. 912; Kidd v. McCanless, 352 U. S. 920; Radford v. Gary, 352 U. S. 991; Hartsfield v. Sloan, 357 U. S. 916; Matthews v. Handley, 361 U. S. 127. [22] Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U. S. 281, the District Court dismissed for want of jurisdiction, which had been invoked under 28 U. S. C. § 1343 (3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State's 102 counties. This Court's disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U. S. 276, we affirmed the dismissal of an attack on the Georgia county unit system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedy existed under 28 U. S. C. § 1343 (3). The express words of our holding were that Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a state's geographical distribution of electoral strength among its political subdivisions. 339 U. S., at 277. We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.",jurisdiction of the subject matter.
+332,110116,1,2,"The Secretary overpaid the Hawaii respondents, [5] and notified them of his determination to recoup the overpayments. After unsuccessful attempts to obtain administrative relief, they brought suit in the United States District Court for the District of Hawaii challenging the legality of the Secretary's recoupment procedures. They alleged that, because the notice they received was inadequate and because they were not given an opportunity for an oral hearing before recoupment began, the recoupment procedures violated both § 204 of the Act and the Fifth Amendment of the Constitution. They sought class certification, and requested both declaratory and injunctive relief that would require the Secretary to cease future recoupment until such time as he provided the class with adequate notice and opportunity for a hearing. App. 11-21. The District Court certified a class of all social security old age and disability benefit recipients resident in the State of Hawaii, who are being or will be subjected to adjustment of their social security benefits pursuant to 42 U. S. C. §§ 404 (a) and (b) without adequate prior notice of the grounds for such action and without a prior hearing on disputed issues relating to such actions. Id., at 35. The court found jurisdiction under the mandamus statute, 28 U. S. C. § 1361, and granted relief to respondents. The court said that due process required that the Secretary provide an opportunity for an informal oral hearing before an independent decisionmaker prior to recoupment. In so holding, the court relied on Goldberg v. Kelly, 397 U. S. 254 (1970), which determined that, under the Due Process Clause, a statutory right to welfare benefits could not be terminated without prior notice and opportunity for an evidential hearing. The court also held that the Constitution required that the initial overpayment notice be modified to inform the recipient more fully concerning recoupment procedures. Although the court did not discuss respondents' statutory claim, it granted judgment for respondents on both statutory and constitutional grounds and ordered injunctive relief for the class. Elliott v. Weinberger, 371 F. Supp. 960 (1974). The Buffington Case Relying on annual earnings reports, the Secretary determined that the individual respondents in Buffington had been overpaid for previous years. [6] After receiving notice, both named respondents sought administrative relief, but were unable to halt recoupment. They then brought suit in the United States District Court for the Western District of Washington. They, too, alleged that the Secretary's recoupment procedures were contrary to both § 204 and the Due Process Clause of the Fifth Amendment. They requested certification of a nationwide class, an injunction ordering repayment of amounts unlawfully withheld, and declaratory and mandamus relief that would require the Secretary to provide notice and an opportunity for a hearing before recoupment began again. App. 188-201. The District Court certified a nationwide class composed of all individuals eligible for [old-age and survivors' benefits] whose benefits have been or will be reduced or otherwise adjusted without prior notice and opportunity for a hearing. The court, however, excluded from the class residents of Hawaii and the Eastern District of Pennsylvania, where suits raising similar issues were known to have been brought. Id., at 259. See, e. g., Mattern v. Weinberger, 519 F. 2d 150 (CA3 1975). As a precautionary measure, the court also excluded all persons who had participated as plaintiffs or members of a plaintiff class in litigation against the Secretary on similar issues, if a decision on the merits previously had been rendered. App. 259-260. The court then granted summary judgment for the class. The court found jurisdiction under the mandamus statute, 28 U. S. C. § 1361. [7] It enjoined the Secretary from ordering recoupment without having provided recipients with a prior opportunity for an informal hearing before an independent decisionmaker. The court also ordered that the initial notice be amended to provide more information about recoupment procedures. Buffington v. Weinberger, Civ. No. 734-73C2 (WD Wash. Oct. 22, 1974). App. 262-265. The Court of Appeals The United States Court of Appeals for the Ninth Circuit consolidated the two cases for disposition on appeal. In an unreported opinion, Elliott v. Weinberger, Nos. 74-1611 and 74-3118 (Oct. 1, 1975), App. to Pet. for Cert. 40A-84A, that court found that the complaints presented substantial constitutional questions and so § 1361 mandamus jurisdiction was proper. It upheld the certification of the classes under Fed. Rule Civ. Proc. 23 (b) (2), finding counsel was sufficiently skilled and experienced to represent the class. It rejected the Secretary's contention that a nationwide class should not have been certified. It found nothing in Rule 23 indicating that such a class was improper, and it believed as a practical matter that, because respondents did not seek damages, no manageability problems were present. It indicated that to require recipients to sue individually would result in an unnecessary duplication of actions, the evil that Rule 23 was designed to prevent. On the merits, the Court of Appeals, without directly addressing respondents' statutory claims, affirmed the holdings that the Secretary's recoupment procedures were unconstitutional. Subsequent to that decision, this Court, in Mathews v. Eldridge, 424 U. S. 319 (1976), held that the Due Process Clause does not require an oral hearing prior to termination of Social Security disability insurance benefits. We then granted petitions for writs of certiorari filed by the Secretary both in this case and in Mattern, supra, vacated the judgments below, and remanded the cases for further consideration in light of Eldridge. 425 U. S. 987 (1976). On remand, the Court of Appeals adhered to the essential features of its original decision. Elliott v. Weinberger, 564 F. 2d 1219 (1977). The court reaffirmed its holding that it had jurisdiction under the mandamus statute. It noted that, while Eldridge had indicated that named plaintiffs would be able to assert jurisdiction based on § 205 (g) under Weinberger v. Salfi, 422 U. S. 749, 755, 764 (1975), there was some doubt as to whether that statute would provide jurisdiction for a class action seeking injunctive relief, and therefore the extraordinary remedy of mandamus could be invoked. The court found that these actions were not foreclosed by the jurisdictional limitations contained in § 205 (h), because these actions were brought to enforce constitutional rights, not to recover on any claim for benefits. On the merits, the court found Eldridge distinguishable. One of three grounds cited in support of this conclusion is of particular relevance here. The court expressly found that the Secretary's procedures for handling waivers created an undue risk of erroneous deprivation. It said that, unlike the medical decision at issue in Eldridge, the grant of a waiver frequently depended on credibility, which could not be ascertained from the written submission on which the Secretary relied. The court thus held that when waiver was requested, the Due Process Clause required that the recipient be given an oral hearing before recoupment begins. The court said a prior hearing was not required, however, in § 204 (a) reconsideration cases if the dispute was a routine one centering on a computational error or a payment problem that did not demand an evaluation of credibility. [8] The court specified six requirements that the oral hearing should meet, including rights to receive notice, to submit evidence, to cross-examine witnesses, to have counsel, to have an impartial hearing officer, and to receive a written decision. The court did not require that a transcript of the hearing be made. 564 F. 2d, at 1235. The court also held that the notice must be plainly and clearly communicated. Ibid. The court suggested that this could be accomplished by including in the notice such matters as the reason for overpayment, a statement of the right to request reconsideration or waiver, the forms available for that purpose, a description of the nature of reconsideration and waiver, and notice of the right to a prerecoupment hearing. Id., at 1236. The Secretary filed a petition for a writ of certiorari seeking review of both the holding that the Due Process Clause required a prerecoupment oral hearing, and the determination that the class was properly certified. The Secretary, however, did not request review of the holding that his notice of recoupment was constitutionally defective. Certiorari was granted. Califano v. Elliott, 439 U. S. 816 (1978).",The Elliott Case[4]
+333,109122,2,1,"The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipments from those occurring during the study period had been made with an eye toward demonstrating service inadequacies. [3] These worst case studies figured in the Commission's finding that service would be improved by the entry of new carriers to the routes at issue. The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants' presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appellees' presentations but concluded that they offered an inadequate rebuttal to the applicants' exhibits because (1) they relate to short periods of time or cover traffic handled for specified shippers; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation Co., 114 M. C. C. 571, 599 (1971). The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees' exhibits were based upon the same study periods and the same shippers as the applicants' exhibits. 364 F. Supp., at 1259-1260. We agree with the District Court that the first reason assigned by the Commission—that the appellees' exhibits were based only upon short periods and particular shippers —failed to distinguish the presentations of applicants and opponents. To counter the applicants' presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor. The Commission's second reason, however—that the appellees' studies covered periods subsequent to a notice of hearing—provides support for the Commission's assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers' performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters' service during that period, for the incentive effect the Commission identified would have, if anything, distorted the performance studies in the protesters' favor. The issue before the Commission was not whether the appellees' service met some absolute standard of performance but whether the public convenience and necessity would be served by the entry of new carriers into the markets served by appellees. United States v. Dixie Express, 389 U. S. 409, 411-412 (1967). Even if the Commission had accepted appellees' exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees' studies as possibly nonrepresentative of the usual service afforded, [4] to reason that the shortcomings were probably greater than these studies showed, and to conclude that service would be improved by granting the applications.",Evidence as to Existing Service
+334,109122,2,2,"The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes served by the applicants that were substantially longer than those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appellees cited service restrictions that the applicants practiced on other routes—refusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like. The Commission attributed little significance to the appellees' rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M. C. C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants' transit-time evidence ( id., at 586, 600) to support its finding of fitness. 364 F. Supp., at 1260-1261. Similarly, the District Court viewed as arbitrary the Commission's failure to mention in its opinion the service restrictions by applicants that appellees' had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M. C. C., at 600. The Commission's treatment of the evidence of the applicants' performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the arbitrary and capricious test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants' performance on other routes might, because of market conditions peculiar to that route ( e. g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive. [5] The particular features of the applicants' performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove dispositive, and that accordingly, absent some compelling demonstration by a proponent of a performance elsewhere study that it offered important predictive value, the Commission should disregard such evidence. [6] Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found that in the main the carriers participating in these proceedings are substantial and responsible carriers (2 App. 878), and no party has disputed this finding. We do not find the Commission's treatment of the evidence arbitrary.",Evidence of Applicants' Fitness
+335,107013,1,1,"The faulty prop in the Court's reasoning is that it focuses entirely on what is taking place in the studio rather than on what the viewer is seeing on his screen. That which the viewer sees with his own eyes is not, however, what is taking place in the studio, but an electronic image. If the image he sees on the screen is an accurate reproduction of what he would see with the naked eyes were the experiment performed before him with sandpaper in his home or in the studio, there can hardly be a misrepresentation in any legally significant sense. While the Commission undoubtedly possesses broad authority to give content to the proscriptions of the Act, its discretion, as the Court recognizes, is not unbridled, and in the last analysis the words `deceptive practices' set forth a legal standard and they must get their final meaning from judicial construction ( ante, p. 385). In this case, assuming that Rapid Shave could soften sandpaper as quickly as it does sand-covered plexiglass, a viewer who wants to entertain his friends by duplicating the actual experiment could do so by buying a can of Rapid Shave and some sandpaper. If he wished to shave himself, and his beard were really as tough as sandpaper, he could perform this part of his morning ablutions with Rapid Shave in the same way as he saw the plexiglass shaved on television. I do not see how such a commercial can be said to be deceptive in any legally acceptable use of that term. The Court attempts to distinguish the case where a celebrity has written a testimonial endorsing some product, but the original testimonial cannot be seen over television and a copy is shown over the air by the manufacturer. The Court states of this hypothetical: In respondents' hypothetical the objective proof of the product claim that is offered, the word of the celebrity or agency that the experiment was actually conducted, does exist: while in the case before us the objective proof offered, the viewer's own perception of an actual experiment, does not exist. Ante, at 390. But in both cases the viewer is told to see for himself, in the one case that the celebrity has endorsed the product; in the other, that the product can shave sandpaper; in neither case is the viewer actually seeing the proof; and in both cases the objective proof does exist, be it the original testimonial or the sandpaper test actually conducted by the manufacturer. In neither case, however, is there a material misrepresentation, because what the viewer sees is an accurate image of the objective proof. Nor can I readily understand how the accurate portrayal of an experiment by means of a mock-up can be considered more deceptive than the use of mashed potatoes to convey the glamorous qualities of a particular ice cream ( ante, pp. 392-393); indeed, to a potato-lover the smile on the face of the tiger might come more naturally than if he were actually being served ice cream. It is commonly known that television presents certain distortions in transmission for which the broadcasting industry must compensate. Thus, a white towel will look a dingy gray over television, but a blue towel will look a sparkling white. On the Court's analysis, an advertiser must achieve accuracy in the studio even though it results in an inaccurate image being projected on the home screen. This led the Court of Appeals to question whether it would be proper for an advertiser to show a product on television that somehow, because of the medium, looks better on the screen than it does in real life. 310 F. 2d 89, 94; 326 F. 2d 517, 523, n. 16. A perhaps more commonplace example suggests itself: Would it be proper for respondent Colgate, in advertising a laundry detergent, to demonstrate the effectiveness of a major competitor's detergent in washing white sheets; and then before the viewer's eyes, to wash a white (not a blue) sheet with the competitor's detergent? The studio test would accurately show the quality of the product, but the image on the screen would look as though the sheet had been washed with an ineffective detergent. All that has happened here is the converse: a demonstration has been altered in the studio to compensate for the distortions of the television medium, but in this instance in order to present an accurate picture to the television viewer. In short, it seems to me that the proper legal test in cases of this kind concerns not what goes on in the broadcasting studio, but whether what is shown on the television screen is an accurate representation of the advertised product and of the claims made for it.",mock-ups as such.
+336,107013,1,2,"The Commission ordered both respondents to cease and desist from using mock-ups in any test, experiment or demonstration—in the case of respondent Bates. whether or not relating to Colgate products—as a result of its finding that the use of a plexiglass mock-up in this instance constituted a separate misrepresentation. If that were the only misrepresentation found by the Commission, I would affirm the judgment of the Court of Appeals. The Commission, however, found another misrepresentation, not disputed here, namely, that Rapid Shave would shave sandpaper as quickly as plexiglass, and on this record I cannot say that such finding might not support the Commission's broad order. In so concluding, some further observations are called for. The Court brings to the support of the Commission's broad order the suggestion that it might be difficult for the Commission to police the reliability of simulated demonstrations, and, further, that the Commission might have cause for concern as to advertisers which have demonstrated a propensity for misrepresentation. The policing factor certainly should not permit the Commission to sweep with the broad brush it has used here, since the same risk of inaccurate reproduction inheres in all commercials, not only those involving tests or experiments. Although the Commission doubtless has wide discretion in fashioning remedies ( ante, p. 395), I do not believe that an order banning use of all mock-ups can be justified merely on the score of policing. There is some indication, however, that the Commission has had troubles with both respondents in the past (see 59 F. T. C. 1452, 1473 and n. 30). If the Commission should find that a pattern of misrepresentations by respondents creates a substantial risk that they will not accurately portray experiments if permitted to continue using mock-ups, the Commission's present order might well be justified. I think the Commission should have an opportunity to make such findings, which were unnecessary under what I believe was its mistaken view of the case. To that end, I would vacate the judgment of the Court of Appeals and remand the case to the Commission for further proceedings in light of what has been said in this opinion.",the commission's remedy.
+337,108196,1,1,"Phillipsburg is a small industrial city on the Delaware River in the southwestern corner of Warren County, New Jersey. Its population was 18,500 in 1960, 28,500 counting the population of its bordering suburbs. Although the population of the suburbs is and has been increasing, Phillipsburg itself has not grown. Easton, Pennsylvania, lies directly across the river. It had a population of 32,000 in 1960, 60,000 counting its bordering suburbs. Its population growth pattern has paralleled that of Phillipsburg. The cities are linked by two bridges and the testimony was that they are in effect . . . one town. This one town has seven commercial banks, four in Easton and three in Phillipsburg. PNB and SNB are respectively the third and fifth largest in overall banking business. All seven fall within the category of small banks, their assets in 1967 ranging from $13,200,000 to $75,600,000. [3] PNB, with assets then of approximately $23,900,000, and SNB with assets of approximately $17,300,000, are the first and second largest of the three Phillipsburg banks. The merger would produce a bank with assets of over $41,100,000, second in size of the six remaining commercial banks in one town. PNB and SNB are direct competitors. Their main offices are opposite one another on the same downtown street. SNB's only branch is across a suburban highway from one of PNB's two branches. Both banks offer the wide range of services and products available at commercial banks, including, for instance, demand deposits, savings and time deposits, consumer loans, commercial and industrial loans, real estate mortgages, trust services, safe deposit boxes, and escrow services. As is characteristic of banks of their size operating in small communities, PNB and SNB have less of their assets in commercial and industrial loans than do larger banks. They emphasize real estate loans and mortgages, and they have relatively more time and savings deposits than demand deposits. Similarly, their trust assets are quite small. In short, both banks are oriented toward the needs of small depositors and small borrowers. Thus, in 1967 75% of PNB's number of deposits and 73% of SNB's were $1,000 or less; 98% of PNB's number of deposits and 97% of SNB's were $10,000 or less. Similarly, 75% of PNB's number of loan accounts and 59% of SNB's were $2,500 or less, and 93% and 87% respectively were $10,000 or less. Both banks serve predominantly Phillipsburg residents. In 1967, although 91.6% of PNB's and 92% of SNB's depositors were residents of one town, only 5.3% of PNB's and 9% of SNB's depositors lived in Easton. And, although 78.6% of PNB's and 87.2% of SNB's number of loans were made to residents of one town, only 14.8% and 11.6% respectively went to persons living in Easton. A witness testified that all of the approximately 8,500 Phillipsburg families deal with one or another of the three commercial banks in that city. The town's businessmen prefer to do the same. The preference for local banks was strikingly evidenced by the fact that PNB and SNB substantially increased their savings deposit accounts during 1962-1967, even though their passbook savings rates were lower than those being paid by other readily accessible banks. At a time when Phillipsburg banks were paying 3.5% interest and Easton banks only 3% other banks within a 13-mile radius were offering 4%. Phillipsburg-Easton is in the northeastern part of the Lehigh Valley, a region of approximately 1,000 square miles, with a population of 492,000 in 1960 and 38 commercial banks in June 1968. There is considerable mobility among residents of the area for social, shopping, and employment purposes. Customer preference and conservative banking practices, however, have tended to limit the bulk of each commercial bank's business to its immediate geographic area. Neither PNB nor SNB has aggressively sought business outside one town. Similarly, most other banks in the Lehigh Valley have shown little interest in seeking customers in Phillipsburg-Easton. The District Court found that [t]here is an attitude of complacency on the part of many banks [in the Valley]. They are content to continue outmoded banking practice and reluctant to risk changes which would improve service and extend services over a greater area to a larger segment of the population. 306 F. Supp., at 661. The merger would reduce the number of commercial banks in one town from seven to six, and from three to two in Phillipsburg. The merged bank would have five of the seven banking offices in Phillipsburg and its environs and would be three times as large as the other Phillipsburg bank; it would have 75.8% of the city's banking assets, 76.1% of its deposits, and 84.1% of its loans. Within Phillipsburg-Easton PNB-SNB would become the second largest commercial bank, having 19.3% of the total assets, 23.4% of total deposits, 19.2% of demand deposits, and 27.3% of total loans. This increased concentration would give the two largest banks 54.8% of the one town banking assets, 64.8% of its total deposits, 63.3% of demand deposits, 63% of total loans, and 10 of the 16 banking offices. We entertain no doubt that this factual pattern requires a determination whether the merger passes muster under the antitrust standards of United States v. Philadelphia National Bank, 374 U. S. 321 (1963), which were preserved in the Bank Merger Act of 1966. United States v. First National Bank of Houston, supra; United States v. Third National Bank in Nashville, supra . Mergers of directly competing small commercial banks in small communities, no less than those of large banks in large communities, are subject to scrutiny under these standards. Indeed, competitive commercial banks, with their cluster of products and services, play a particularly significant role in a small community unable to support a large variety of alternative financial institutions. Thus, if anything, it is even more true in the small town than in the large city that if the businessman is denied credit because his banking alternatives have been eliminated by mergers, the whole edifice of an entrepreneurial system is threatened; if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected . . . . Philadelphia Bank, 374 U. S., at 372. When PNB and SNB sought the Comptroller's approval of their merger, as required by the Bank Merger Act, 12 U. S. C. § 1828 (c), independent reports on the competitive factors involved were obtained, as required by § 1828 (c) (4), from the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General. All three viewed the problem as involving commercial banking in Phillipsburg-Easton and reported that the merger would have a significantly harmful effect upon competition in that area. The Comptroller nevertheless approved the merger, finding that the agencies had defined the product and geographic markets too narrowly. He treated not Phillipsburg-Easton but most of the Lehigh Valley as the relevant geographic area, and evaluated competition from 34 finance companies and 13 savings and loan institutions, as well as from the more than 30 commercial banks in the area. The Comptroller concluded that the merger would have no significant anticompetitive effect and, further, that it would enable the resultant bank to serve more effectively the convenience and needs of the community.",the factual setting
+338,108196,1,3,"In determining the relevant geographic market, we held in Philadelphia Bank, supra, at 357, that [t]he proper question to be asked . . . is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. . . . This depends upon `the geographic structure of supplier-customer relations.'  More specifically we stated that the `area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies . . . .'  Id., at 359. The District Court selected as the relevant geographic market an area approximately four times as large as Phillipsburg-Easton, with a 1960 population of 216,000 and 18 banks. The area included the city of Bethlehem, Pennsylvania. 306 F. Supp., at 652-653, 656-658. The court explicitly rejected the claim of the United States that Phillipsburg-Easton constitutes the relevant market. We hold that the District Court erred. Commercial realities in the banking industry make clear that banks generally have a very localized business. We observed in Philadelphia Bank, supra, at 358, that [i]n banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their local community; they find it impractical to conduct their banking business at a distance. . . . The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries. In locating the market area in which the seller operates, it is important to consider the places from which it draws its business, the location of its offices, and where it seeks business. As indicated, the appellee banks' deposit and loan statistics show that in 1967 they drew over 85% of their business from the Phillipsburg-Easton area and, of that, only about 10% from Easton. It has been noted that nearly every family in Phillipsburg deals with one of the city's three banks, and the town's businessmen prefer to do the same. All of PNB and SNB's banking offices are located within Phillipsburg or its immediate suburbs; although the city is sufficiently small that there is easy access to its down-town area where the banks have their main offices, the banks found it necessary to open branches in the suburbs because, as a witness testified, that is where the customers are. See also Philadelphia Bank, supra, at 358 n. 35. The one town banks generally compete for deposits within a radius of only a few miles. The localization of business typical of the banking industry is particularly pronounced when small customers are involved. We stated in Philadelphia Bank, supra, at 361, that in banking the relevant geographical market is a function of each separate customer's economic scale—that the smaller the customer, the smaller is his banking market geographically, id., at 359 n. 36. Small depositors have little reason to deal with a bank other than the one most geographically convenient to them. For such persons, geographic convenience can be a more powerful influence than the availability of a higher rate of interest at a more distant, though still nearby, bank. The small borrower, if he is to have his needs met, must often depend upon his community reputation and upon his relationship with the local banker. PNB, for instance, has made numerous unsecured loans on the basis of character, which are difficult for local borrowers to get elsewhere. And, as we said in Philadelphia Bank, supra, at 369, [s]mall businessmen especially are, as a practical matter, confined to their locality for the satisfaction of their credit needs. . . . If the number of banks in the locality is reduced, the vigor of competition for filling the marginal small business borrower's needs is likely to diminish. Thus, the small borrower frequently cannot practicably turn for supplies outside his immediate community; and the small depositor—because of habit, custom, personal relationships, and, above all, convenience—is usually unwilling to do so. See id., at 357 n. 34. The patrons of PNB and SNB, of course, are small customers: almost 75% of the banks' deposits are for amounts less than $1,000, and virtually all of their loans are for less than $10,000, most falling below $2,500. We observed in Philadelphia Bank, supra, at 361, that we were helped to our conclusion regarding geographic market by the fact that the three federal banking agencies regard the area in which banks have their offices as an `area of effective competition.'  Here the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General found that a relevant banking market exists in the Phillipsburg-Easton area and that the proposed merger's competitive effect should be judged within it. [5] We agree. We find that the evidence shows that Phillipsburg-Easton constitutes a geographic market in which the proposed merger's effect would be direct and immediate. It is the market area in which PNB and SNB operate, and, as a practical matter, it is the area in which most of the merging banks' customers must, or will, do their banking. Thus, we hold that the District Court mistakenly rejected the Government's contention that Phillipsburg-Easton is an appropriate section of the country under § 7. Appellee banks argue that Phillipsburg-Easton cannot conceivably be considered a `market' for antitrust purposes, on the ground that it is not an economically significant section of the country. They cite our language in Brown Shoe, supra, at 320, that [t]he deletion of the word `community' in the original [Clayton] Act's description of the relevant geographic market is another illustration of Congress' desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant `section' of the country. In Brown Shoe, however, we found relevant geographic markets in cities with a population exceeding 10,000 and their environs. Id., at 339. Phillipsburg-Easton and their immediate environs had a population of almost 90,000 in 1960. Seven banks compete for their business. This market is clearly an economically significant section of the country for the purposes of § 7.",the relevant geographic market
+339,108196,1,4,"We turn now to the ultimate question under § 7: whether the effect of the proposed merger may be substantially to lessen competition. We pointed out in Philadelphia Bank, supra, at 362, that a prediction of anticompetitive effects is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive. . . . And unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded. . . . So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation. . . . And so in any case in which it is possible, without doing violence to the congressional objective embodied in § 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration. We stated in Brown Shoe, supra, at 315, that [t]he dominant theme pervading congressional consideration of the 1950 amendments [to § 7] was a fear of what was considered to be a rising tide of economic concentration in the American economy. In Philadelphia Bank, supra, at 363, we held that [t]his intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects. That principle is applicable to this case. The commercial banking market in Phillipsburg-Easton is already concentrated. Of its seven banks, the two largest in 1967—Easton National Bank and Lafayette Trust Co.—had 49% of its total banking assets, 56% of its total deposits, 49% of its total loans and seven of its 16 banking offices. Easton National is itself the product of the merger of two smaller banks in 1959. The union of PNB-SNB would, in turn, significantly increase commercial banking concentration in one town. The combined bank would become the second largest in the area, with assets of over $41,100,000 (19.3% of the area's assets), total deposits of $38,400,000 (23.4%), and total loans of $24,900,000 (27.3%). The assets held by the two largest banks would then increase from 49% to 55%, the deposits from 56% to 65%, the loans from 49% to 63%, and the banking offices from seven to 10. The assets held by the three largest banks would increase from 60% to 68%, the deposits from 70% to 80%, the loans from 64% to 76%, and the banking offices from 10 to 12. In Phillipsburg alone, of course, the impact would be much greater: banking alternatives would be reduced from three to two; the resultant bank would be three times larger than the only other remaining bank, and all but two of the banking offices in the city would be controlled by one firm. Thus, we find on this record that the proposed merger, if consummated, is . . . inherently likely to lessen competition substantially. Cf. Philadelphia Bank, supra; Nashville Bank, supra; United States v. Von's Grocery Co., 384 U. S. 270 (1966); United States v. Pabst Brewing Co., 384 U. S. 546 (1966). Appellee banks argue that they are presently so small that they lack the personnel and resources to serve their community effectively and to compete vigorously. Thus, they contend that the proposed merger could have procompetitive effects: by enhancing their competitive position, it would stimulate other small banks in the area to become more aggressive in meeting the needs of the area and it would enable PNB-SNB to meet an alleged competitive challenge from large, outside banks. Although such considerations are certainly relevant in determining the convenience and needs of the community under the Bank Merger Act, they are not persuasive in the context of the Clayton Act. As we said in Philadelphia Bank, supra, at 371, for the purposes of § 7, a merger the effect of which `may be substantially to lessen competition' is not saved because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. The District Court stated: Ease of access to the market is also a factor that deserves consideration in evaluating the anticompetitive effects of a merger. It is not difficult for a small group of business men to raise sufficient capital to establish a new small bank when the banking needs of the community are sufficient to warrant approval of the charter. 306 F. Supp., at 659. Appellees, however, made no attempt to show that a group of businessmen would move to start a new bank in Phillipsburg-Easton, should the proposed merger be approved. The banking laws of New Jersey and Pennsylvania severely restrict the capacity of existing banks to establish operations in one town. Relying on a recent New Jersey banking statute, N. J. Stat. Ann. § 17:9A-19 (Supp. 1969), appellees contend that [t]here is no doubt that the three banks in Phillipsburg. . . are fair game for attractive merger proposals by the large banks from Bergen, Passaic, Essex, Hudson and Morris Counties. But, as the District Court pointed out, Large city banks in Newark and in other well populated cities in the counties mentioned can now establish branch banks in Warren County [only] in any municipality in which no banking institution has its principal office or a branch office and in any municipality which has a population of 7,500 or more where no banking institution has its principal office . . . . 306 F. Supp., at 660. Thus, mergers under § 17:9A-19 are possible in Phillipsburg only with the three banks now in existence there. Accordingly, mergers under this statute would not bear upon the anticompetitive effects in question, because they could not increase the number of banking alternatives in one town. Since the decision below, the Court of Appeals for the Third Circuit has held that a national bank may avoid the New Jersey bar against branching, N. J. Stat. Ann. § 17:9A-19 (B) (3) (Supp. 1969), by moving its headquarters into a protected community, such as Phillipsburg, while simultaneously reopening its former main office as a branch. Ramapo Bank v. Camp, 425 F. 2d 333 (1970). We intimate no view upon the correctness of that decision. We do observe, however, that the District Court decision in Ramapo Bank, affirmed in the recent Court of Appeals ruling, was handed down almost five months before the present District Court decision. Both opinions were written by the same District Judge. Accordingly, had an outside national bank been interested in moving its main office to Phillipsburg, no doubt this fact would have been made known to the District Court or to this Court. Nothing in the present record suggests that any national bank now located outside Phillipsburg will apply to move its main office to that city; therefore, on the record before us, that possibility does not bear on the anticompetitive effects of the merger.",the anticompetitive effects of the merger
+340,108196,1,5,"The District Court's errors necessarily require re-examination of its conclusion that any anticompetitive effects caused by the proposed merger would be outweighed by the merger's contribution to the community's convenience and needs. The District Court's conclusion, moreover, is undermined by the court's erroneous application of the convenience-and-needs standard. In the balancing of competitive effect against benefit to community convenience and needs, [t]o weigh adequately one of these factors against the other requires a proper conclusion as to each. Nashville Bank, supra, at 183. The District Court misapplied the convenience-and-needs standard by assessing the competitive effect of the proposed merger in the broad, multi-community area that it adopted as the relevant geographic market, while assessing the merger's contribution to community convenience and needs in Phillipsburg alone. Appellees argue that [n]owhere does the district court equate `community' with Phillipsburg. We disagree. In determining convenience and needs, the court stated that [t]here are two banking services which must be improved in the area to satisfy present and rapidly increasing need. Lending limits of the small banks are not sufficient to satisfy loan requirements for substantial industrial and commercial enterprise. . . . There is a definite lack of competent trust service and . . . servicing of substantial trust accounts must be obtained outside the community . . . . If the merger is approved, the merged bank can establish [loan and trust] departments and staff them with personnel capable of the kind of loan and trust service that patrons must, in large part, now seek outside the community. 306 F. Supp., at 661. The court then cited examples of persons in Phillipsburg who found the existing loan and trust services in that city inadequate. Id., at 662-666. Since several Easton banks already provide appreciable trust services and have legal lending limits greater than those of PNB-SNB combined, it is obvious that the court was primarily concerned with loan and trust possibilities in Phillipsburg. We hold, however, that evaluation must be in terms of the convenience and needs of Phillipsburg-Easton as a whole. Section 1828 (c) (5) (B) provides that any . . . proposed merger transaction whose effect in any section of the country may be substantially to lessen competition. . . [shall not be approved by the responsible banking agency] unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served. Representative Reuss explained during debate on the Bank Merger Act that [w]hat is meant by [§ (c) (5) (B)] and what counts is the effect of the transaction in meeting the needs and conveniences of the community which that particular sought-to-be merged bank serves. 112 Cong. Rec. 2457. He indicated that in a community having say, 10 banks of relatively equal size, and where one of the banks was in difficulty—say with regard to a problem of management succession—the `convenience and needs of the community' would be best served if that bank were permitted to merge with one of the other 9 banks despite some resulting anticompetitive effects. Id., at 2445. These comments support our conclusion that the geographic market—the community which that particular sought-to-be merged bank serves—is the area in which convenience and needs must be evaluated. Commercial realities, moreover, make clear that the community to be served is virtually always as large, or larger, than the geographic market. Although the area in which merging banks compete while they are still separate entities is often smaller than the area in which the resultant bank will compete, it is rare that the community served by a merged bank is smaller than that served by its constituent firms prior to their merger. Further, evaluation of convenience and needs in an area smaller than the geographic market could result in the approval of a merger that, though it has anticompetitive effects throughout the market, has countervailing beneficial impact in only part of the market. Under the approach taken by the District court, anticompetitive effects in some parts of a relevant geographic market could be justified by community benefits in other parts of it. Such a result would subvert the clear congressional purpose in the Bank Merger Act that convenience and needs not be assessed in only a part of the community to be served, and such a result would unfairly deny the benefits of the merger to some of those who sustain its direct and immediate anticompetitive effects. [6] Cf. Philadelphia Bank, supra, at 370. Accordingly, we hold that the District Court erred in failing to assess the proposed merger's effect in terms of the convenience and needs of the relevant geographic market. We held in Nashville Bank, supra, at 190, that before a merger injurious to the public interest is approved, a showing [must] be made that the gain expected from the merger cannot reasonably be expected through other means. Thus, before approving such a merger, a district court must reliably establish the unavailability of alternative solutions to the woes faced by the merging banks. Ibid. Accordingly, on remand, the District Court should consider in concrete detail the adequacy of attempts by PNB and SNB to overcome their loan, trust, and personnel difficulties by methods short of their own merger. Beyond careful consideration of alternative methods of serving the convenience and needs of Phillipsburg-Easton, the court should deal specifically with whether the proposed merger is likely to benefit all seekers of banking services in the community, rather than simply those interested in large loan and trust services. The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. No costs shall be assessed against appellee banks. It is so ordered. MR. JUSTICE STEWART took no part in the decision of this case, and MR. JUSTICE BLACKMUN took no part in its consideration or decision.",meeting the convenience and needs of the community
+341,108478,1,1,"S&H has been issuing trading stamps—small pieces of gummed paper about the size of postage stamps— since 1896. In 1964, the year from which data in this litigation are derived, the company had about 40% of the business in an industry that annually issued 400 billion stamps to more than 200,000 retail establishments for distribution in connection with retail sales of some 40 billion dollars. In 1964, more than 60% of all American consumers saved S&H Green Stamps. In the normal course, the trading stamp business operates as follows. S&H sells its stamps to retailers, primarily to supermarkets and gas stations, at a cost of about $2.65 per 1200 stamps; retailers give the stamps to consumers (typically at a rate of one for each 10 ¢ worth of purchases) as a bonus for their patronage; consumers paste the stamps in books of 1,200 and exchange the books for gifts at any of 850 S&H Redemption Centers maintained around the country. Each book typically buys between $2.86 and $3.31 worth of merchandise depending on the location of the redemption center and type of goods purchased. Since its development of this cycle 75 years ago, S&H has sold over one trillion stamps and redeemed approximately 86% of them. A cluster of factors relevant to this litigation tends to disrupt this cycle and, in S&H's view, to threaten its business. An incomplete book has no redemption value. Even a complete book is of limited value because most gifts may be obtained only on submission of more than one book. For these reasons a collector of another type of stamps who has acquired a small number of green stamps may benefit by exchanging with a green stamp collector who has opposite holdings and preferences. Similarly, because of the seasonal usefulness or immediate utility [2] of an object sought, a collector may want to buy stamps outright and thus put himself in a position to secure redemption merchandise immediately though it is priced beyond his current stamp holdings. Or a collector may seek to sell his stamps in order to use the resulting cash to make more basic purchases (food, shoes, etc.) than redemption centers normally provide. Periodically over the past 70 years professional exchanges have arisen to service this demand. Motivated by the prospect of profit realizable as a result of serving as middlemen in swaps, the exchanges will sell books of S&H stamps previously acquired from consumers, or, for a fee, will give a consumer another company's stamps for S&H's or vice versa. Further, some regular merchants have offered discounts on their own goods in return for S&H stamps. Retailers do this as a means of competing with merchants in the area who issue stamps. By offering a price break in return for stamps, the redeeming merchant replaces the incentive to return to the issuing merchant (to secure more stamps so as to be able to obtain a gift at a redemption center) with the attraction of securing immediate benefit from the stamps by exchanging them for a discount at his store. [3] S&H fears these activities because they are believed to reduce consumer proclivity to return to green-stamp-issuing stores and thus lower a store's incentive to buy and distribute stamps. The company attempts to pre-empt trafficking in its stamps by contractual provisions reflected in a notice on the inside cover of every S&H stamp book. The notice reads: Neither the stamps nor the books are sold to merchants, collectors or any other persons, at all times the title thereto being expressly reserved in the Company . . . . The stamps are issued to you as evidence of cash payment to the merchants issuing the same. The only right which you acquire in said stamps is to paste them in books like this and present them to us for redemption. You must not dispose of them or make any further use of them without our consent in writing. We will in every case where application is made to us give you permission to turn over your stamps to any other bona-fide collector of S&H Green . . . Stamps; but if the stamps or the books are transferred without our consent, we reserve the right to restrain their use by, or take them from other parties. It is to your interest that you fill the book, and personally derive the benefits and advantages of redeeming it. (Reproduced at 2 App. 230.) S&H makes no effort to enforce this condition when consumers casually exchange stamps with each other, though reportedly some 20% of all the company's stamps change hands in this manner. But S&H vigorously moves against unauthorized commercial exchanges and redeemers. Between 1957 and 1965, by its own account the company filed for 43 injunctions against merchants who redeemed or exchanged its stamps without authorization, and it sent letters threatening legal action to 140 stamp exchanges and 175 businesses that redeemed S&H stamps. In almost all instances the threat or the reality of suit forced the businessmen to abandon their unauthorized practices.",The Challenged Conduct
+342,109456,2,1,"The opinion of the District Court for the District of Columbia in Hackley v. Johnson , relied on by the Court of Appeals here, expressed the view that the phrase as applicable in § 717 (d) evidences a congressional intent to restrict or qualify the right to a de novo proceeding granted by § 717 (c). 360 F. Supp., at 1252 n. 9. A careful reading of § 717 (d) and the provisions to which it refers indicates, however, that the phrase was intended merely to reflect the fact that certain provisions in §§ 706 (f) through (k) pertain to aspects of the Title VII enforcement scheme that have no possible relevance to judicial proceedings involving federal employees. Section 717 (d) states that [t]he provisions of section 706 (f) through (k), as applicable, shall govern civil actions brought hereunder. Sections 706 (f) through (k) set forth specific procedures and guidelines to be followed in private-sector civil actions. Several of these procedures could not possibly apply to civil actions involving federal employees. Section 706 (f) (1), for instance, provides that in the private sector the EEOC may bring a civil action against any respondent not a government, governmental agency, or political subdivision and that the Attorney General of the United States may bring a civil action for employment discrimination against a state government, agency, or political subdivision. The individual complainant retains the right to intervene in suits brought by the EEOC or the Attorney General. In the case of a civil action maintained by an individual complainant against a private or state governmental employer, the EEOC or the Attorney General, respectively, may be permitted to intervene upon certification that the case is of general public importance. These provisions, allowing suits and permissive intervention by the EEOC or the Attorney General, could have no possible application to civil actions under § 717 (c), because the individual federal employee or job applicant is the only party who can institute and maintain a civil action under that subsection. Similarly, the provision in § 706 (f) (2) permitting the EEOC or the Attorney General to bring an action for appropriate temporary or preliminary relief pending final disposition of a charge where the EEOC has conclude[d] on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act could not possibly apply without modification to civil actions involving federal employees, because the EEOC is given no general responsibility for investigating or prosecuting the complaints of federal employees. The most natural reading of the phrase as applicable in § 717 (d) is that it merely reflects the inapplicability of provisions in §§ 706 (f) through (k) detailing the enforcement responsibilities of the EEOC and the Attorney General. [7] We cannot, therefore, agree with the view expressed by the District Court in Hackley v. Johnson, supra , and relied on by the Court of Appeals here, that Congress used the words as applicable to voice its intent to disallow trials de novo by aggrieved federal employees who have received prior administrative hearings. As the Court of Appeals for the District of Columbia Circuit held in reversing Hackley v. Johnson, supra , such an interpretation of the phrase as applicable would require a strained and unnatural reading of §§ 706 (f) through (k). Hackley v. Roudebush, 171 U. S. App. D. C., at 389, 520 F. 2d, at 121. This Court pointed out in Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370, that  `the plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.'  To read the phrase as applicable in § 717 (d) as obliquely qualifying the federal employee's right to a trial de novo under § 717 (c) rather than as merely reflecting the inapplicability to § 717 (c) actions of provisions relating to the enforcement responsibilities of the EEOC or the Attorney General would violate this elementary canon of construction.",The Meaning of the Phrase As Applicable
+343,87506,1,1,"First. It is insisted by the United States, that it is not shown by competent evidence, that a public tribunal, empowered by law to take jurisdiction over the subject-matter of the acquisition of a mine, or mining right, or privilege, has ever acted in this case, and adjudicated to the claimant the title to the mine, as alleged by him in the petition. Secondly. That if such a tribunal is shown by competent evidence to have taken any action in the case, still it does not exercise its special and limited jurisdiction in a manner required by law so as to constitute or evidence any title to the mine claimed by the petitioner. 1. Mines under Mexican laws, as before explained, whether situated in public or private lands, belong to the Supreme Government, and private persons can only acquire a title in one not previously discovered and made individual property according to law, by conforming substantially to the conditions ordained in the provisions of the 4th article of the mining ordinance as herein previously recited. Applicant must resort to the proper tribunal and present his written statement, specifying in it his name and the names of his partners, if he has any, the place of their birth, their residence, profession and employment, and the most particular and distinguishing features of the place, hill or vein, of which he asks adjudication. The title to such properties are acquired by the citizen or subject wherever Spanish law prevails by the adjudication of the proper tribunal having jurisdiction of the subject-matter. Contrary to what is supposed by the claimant is the adjudication, or decree, of the proper tribunal in a case duly presented for decision, and the registry of the adjudication together with the proceedings on which it is founded, which vest the title in the applicant, and not the mere fact of discovery as was supposed at the argument. Without proof of discovery by the applicant, there can be no adjudication in his favor, but the discovery of a mine, by a party in whose favor there has been no adjudition by a tribunal having jurisdiction of the subject-matter, secures no right or title to the discoverer. Boundaries also must be fixed to carry the adjudication into effect or rather to complete it, else the title or claim, like other indefinite and uncertain interests in lands, will be void for uncertainty. Marking of boundaries also is essential under all circumstances, whether the mine is situated in public or private lands, for if the location is in public lands, compliance with the requirement is essential to show what extent of the public domain has been segregated from the mass of such lands and has passed into private ownership. 2. Public convenience, therefore, in such a case requires that the boundaries should be fixed, and, besides, unless the limits of the pertenencia were fixed and staked, or monuments set, other tribunals, whose duty it is to adjudicate lands to applicants for agricultural purposes, would be subjected to embarrassment and be led into error. Definite limits also to mining rights or privileges are equally necessary and important, where the same happen to be located upon the lands of private individuals, in order that the land owner, as contradistinguished from the owner of the mine, may have the means of knowing and be judicially notified, as to what portion of his land has been condemned and appropriated to the use of another. 3. Registry, also, is expressly required by the very article of the mining ordinance under which the party in this case claims title to the mine, and it is a great error to suppose that a compliance with that provision is shown by proving that sheets of paper, not executed at the same time, but assumed to constitute an espediente, were at some time placed in the office of the Alcalde and remained there for a time in one of the pigeon-holes of his desk. Such a suggestion is destitute of any foundation. On the contrary, the requirement is in express terms that the statement of the discoverer, together with the time when he presented himself, shall be noted in a book of registry, which the deputation and notary, if there be one, shall keep, and in respect to the action of the tribunal on the application, the provision is that an exact account shall be taken in order that it may be added to the corresponding part of the registry with the evidence of possession, which shall immediately be given. Act of possession, therefore, is to be added to the registry, together with the action of the tribunal on making the adjudication; and they are both required to be noted in a book (Libro) of registry. 4. Strict compliance with that provision is required as matter of public policy, because the mines of a country like Mexico are a great sources of revenue to the Government, and because it tends to prevent disputes and litigation; prevent fraud and false swearing; secure such rights of property, and promote order and a good understanding among miners holding and working contiguous pertenencias. 1 Gamboa per H., pp. 143, 144. The tribunal empowered by the mining ordinance to exercise this jurisdiction was the Deputation of Mining for the territory or district where the mine was situated, or the nearest one thereto, should there be none there. Halleck Coll. 224. Former ordinances, especially that of 1584, on which Gamboa wrote, conferred the power of adjudicating such titles exclusively on the Mining Court within whose jurisdiction the mine was situated. Ord. 1584, art. 17, Gamboa per H., 139. Section 17th of that Ordinance also provided that in case such registry be not made in the manner, and within the prescribed time, any person may register such mine, and shall thereby have and acquire the right which such discoverer or other person who might have required the registry, would have had if he had caused the registry to be made. Gamboa, p. 141. 5. Cases occurred under that Ordinance where mines were discovered in districts having no Mining Court and in that state of the case there was no tribunal in the parent country which had jurisdiction of the subject-matter, and of course the matter had to be referred to the sovereign power, and to remedy the embarrassment arising under such circumstances from the want of a court to adjudicate such titles, it was provided, in the mining Ordinance of 1783, that the court nearest thereto should have jurisdiction of such a case. Parties concede that the ordinance last named was in force at the date of these proceedings, and unless it can be shown, (and the burden is upon him who avers it,) that the provision referred to has been modified or repealed, it is clearly applicable to this case. Constitution of Mexico vested all the judicial powers of the Republic in one Supreme Court of Justice, and other courts and tribunals to be constituted in conformity to the instrument. Coll. Mexican Constitution; tomo 1, titulo 5, art. 123. Pursuant to that provision the Tribunal-General of Mining, on the 20th of May, 1826, was deprived of its powers. New regulations were then adopted, which were from time to time amended, but it is not important to notice those decrees, because on the 2d day of December, 1842, a new system, carefully digested, was put in force, the 4th article of which constituted and regulated the tribunals of mining. Halleck Coll., pp. 409, 424, 434, 441. Among other things it provides for the creation of Courts of the First Instance in each Department, and for the mode of their election, and also provides that those courts, within their respective districts, shall exercise the executive, judicial, and economical powers given by the old ordinance. Halleck Coll. p. 441 title 4, art. 26. 6. Courts of the First Instance were never organized in the Department of California, and the argument of the claimant is, that in consequence of that fact the ordinary tribunals, as for example, an Alcalde could take jurisdiction over such a subject-matter, and on the application of the discoverer, could adjudicate the title. But the position cannot be sustained, because by the express law of the Republic, as evidence in the special decree of the 14th of January, 1843, it is provided that territorial deputations may continue to exercise their functions until the Courts of First Instance   are established. Halleck Coll., p. 443. Support to the position cannot be derived, as is supposed, from the fact that the law was so in some of the dependencies of Spain prior to 1783, because it is from the express terms of the Ordinance of that year that the Mining Deputation derived their exclusive jurisdiction over the subject, and inasmuch as the supposed analogy on which the position was based fails, the position must fall with it. 7. Mexican policy also, and administration in regard to that Department, afford strong ground to conclude that no such power was intended to be conferred upon any of the officers of the Local Government. Those officers were a Governor, appointed by the Supreme Government, a Departmental Assembly, consisting or seven members, who were chosen by electors, but their election was subject to the approval of the Home Government. Most of the important functions of the Local Government were performed by the Governor and the Departmental Assembly; but the law also made provision for the appointment of Prefects, who were to be nominated by the Governor and confirmed by the General Government; also, Sub-Prefects, who were to be nominated by the Prefects and approved by the Governor. Provision was also made for Ayuntamientos or Municipal Councils, whose ordinary members were elective; and also for the appointment of Alcaldes and Juaces de Paz or Justices of the Peace, whose numbers were to be fixed by the Departmental Assembly, in concurrence with the Governor. Arrillaga, Recop., pp. 202, 214, 223, 230. Judicial functions were exercised by the Prefect as well as the Alcalde, and no reason is perceived for holding that the latter could adjudicate a mining title which might not be adduced with equal and even greater force to show that the same important duty might be performed by the Prefect; but the truth is, there was no law which gave either the one or the other any pretence of jurisdiction in any such matter Theory of claimant is, and so is the argument, that the jurisdiction must have been confided to some of the officers of the Department, and that the presumption is, that the Alcalde had jurisdiction, inasmuch as it is not shown that Courts of First Instance had been constituted and organized. Giving the argument, however, its utmost force, it only shows that a law conferring upon an Alcalde such a jurisdiction would have been a convenience to the inhabitants, and especially to the claimant; but it has no tendency to show there was any such law, which is the question to be decided. Opinion is expressed by two or three of claimant's witnesses that an Alcalde might make such an adjudication, but they exhibit no law to that effect, nor do they attempt to prove there was any such general usage; and inasmuch as their opinions are not competent evidence, their testimony may be dismissed without further remark. Authorities of Mexico had long dreaded the influence of foreigners in that Department, and although the policy of the Home Government was to promote the settlement and growth of the Department, still they had always manifested an unwillingness to confer any more power upon the Local Government than was necessary to accomplish those objects. Mineral wealth, if discovered, would furnish a motive to attempt the conquest of the Department, and it may well be inferred that the authorities of the Home Government had determined to reserve the adjudication of titles to such important public interests to the Federal tribunals. Strong support to that view of the case is derived from the course pursued by those authorities when the land system of the Department was devised and put into operation. 8. Power to grant vacant lands was as early as the 18th of August, 1824, vested in the Governor, in concurrence with the Departmental Assembly. Additional regulations upon the subject were adopted on the 21st of November, 1828, which exhibit a system as complete and perfect as is to be found anywhere. Granting vacant lands for agricultural purposes was by no means regarded as a matter of so much public importance as the adjudication of titles to newly discovered mines. Those provisions and regulations confer very ample power upon the Governor to grant vacant lands in concurrence with the Departmental Assembly, but they confer no power upon them or upon any of the local authorities to adjudicate titles to mines. Grants of land made under those laws did not convey to the grantee the unsevered minerals in the soil or any interest in them, and there is no ground whatever to hold that the Supreme Government ever conferred upon any of the local tribunals any jurisdiction upon the subject under consideration. Authority of the Alcalde therefore, cannot be inferred from the fact of its exercise, or from the fact that no other tribunal of the Department was authorized to exercise such a jurisdiction. VII. But if the Alcalde had power to take jurisdiction of the subject-matter, still it is insisted by the United States in the second place that he had only a special and limited authority, and that he did not exercise it in the manner required by law. 1. His proceedings were based upon the written statement of the claimant, and that was upon its face exceedingly imperfect if not absolutely insufficient. Some of the provisions of the mining ordinance are doubtless merely directory, others may be regarded as conditions subsequent, but those appertaining to the registry of the mine, together with the action of the tribunal thereon, and in respect to the juridical possession of the same are evidently conditions precedent; so that it is necessary, in order to support a title to such a right or privilege as a discoverer, to show that the party substantially performed those conditions. Unless a claimant shows a substantial compliance with those requirements the conclusion is inevitable, not that he has forfeited his right to the mine, but that he never acquired any such title. Forfeiture is of that which a party hath, but he cannot be said to have forfeited what he never had acquired, as the title to that which he had never acquired, must always have been in the State or in another person. 2. Nothing like forfeiture is pretended by the United States, and no such question arises in the case; but the proposition is, that the claimant never acquired any right or privilege in the mine even if he was the discoverer, because he did not, as required by law, pursue the necessary steps to give vitality to the inchoate privilege or pre-emption accorded to the discoverer to proceed according to law, and ripen such privilege or pre-emption into a perfect or complete right by a registry of that which he had discovered before the proper tribunal, and by securing the juridical possession of the same under a legal adjudication of the title. His discovery, and its registration, as is well said by the counsel of the United States, gave him a right, within ninety days to make an opening into the vein, and the further right to apply to the proper public authority and have that which he claimed to have discovered defined and set out to him and its boundaries marked, and a record made of his title to the defined pertenencias. When all this is done according to law, the inchoate privilege or pre-emption of a discoverer so to proceed is then ripened into a perfect or complete right, and his title to the mine comes into existence. 3. Returning to the written statement which in this case is the petition of the claimant addressed to the Alcalde, and noting the representations it contains, it is clear that it is not a compliance with the requirements of the ordinance in many respects. Ordinance, for example, requires a written statement of the most particular and distinguishing features of the place, hill, or vein of which adjudication is asked, or of which he asks the grant, as the phrase is rendered in some of the translations. Representation in the statement or petition is, that he, the claimant, has discovered a vein of silver with a ley of gold on the rancho of José Reyes Berreyesa, which was a hacienda of a league square, mostly table land, with disputed boundaries. Another requirement of the ordinance is, that the applicant shall give the names of his partners, if he has any, and the place of their birth, their residence, profession, and employment; and by article 6, of title 7, the discoverer is expressly forbidden to denounce a mine for himself having entered into a contract of partnership, and yet the claimant's petition which shows that there was a partnership, fails to disclose the names of his partners or any of the required particulars, and it also shows that he denounced the mine to himself alone. 4. Strong doubts are entertained whether the Alcalde, even if he had jurisdiction of the subject-matter, was authorized to proceed and adjudicate the title upon the basis of such a statement; but it is not necessary to decide that question, as there are two other defects in the proceedings which are fatal to the pretensions of the claimant. No such registry of the particulars concerning the mine, or of the action of the Alcalde upon the allegations of the petition, or of his proceedings in respect to the juridical possession of the mine was ever made, as is required by the provisions of the ordinance, nor were the pertenencias measured or definitely located, or the boundaries fixed, or the stakes set, as is therein required. Registry has been required as the basis of the title to a mine wherever Spanish law has prevailed for more than three centuries, and probably no case ever occurred within that period which more fully showed the absolute necessity for such a rule or more fully exemplified its wisdom than the case under consideration. When the Alcalde was first called and examined in another suit concerning the proceedings before him, in respect to the registry of this mine, and the supposed juridical possession given of the same, he testified that the claimant applied to him to go and give him possession of the mine, according to the Mexican custom. Taking the account of the matter, as he then gave it, to be true, he went there with the claimant and others, and pointed out such boundaries as he thought the claimant ought to have; but he expressly stated, on that occasion, that no fixed possession was given to him, for the reason that there was a dispute between him and José Reyes Berreyesa, on whose rancho the mine was situated. Berreyesa, as the witness stated, would not consent that possession should be given unless the claimant would admit that he, Berreyesa, should have an interest in the mine, and as the claimant would not do that, he, the witness, did not give any fixed possession of the mine. Witness was three times examined in this case, and on two of the occasions, he was interrogated upon this subject. His statements are to the effect that he, with the claimant and others, went to the mine; that after they arrived there, he sent for José Reyes Berreyesa, the proprietor of the Rancho, and that he accordingly came to the mine; that he, the witness, made known to Berreyesa what it was that was proposed to be done; that at first he objected, but finally consented, and that he, the witness, delivered the possession to the claimant. They made no survey, fixed no boundaries, and set no stakes, and the witness expressly states that he had no idea whether the three thousand varas in all directions were to be laid out in a square or round; that a part of the tract only was to be located around the mine, and the residue on the public domain in that neighborhood. 6. Nothing was done on the land; and if the witness is to be believed, very little was said, except that he stated that he delivered the three thousand varas in all directions to the claim ant. During the examination he was reminded of his former statements upon that subject, and was requested to explain the differences, but his answer was that, according to his understanding, there was no contradiction between his testimony then given and the statement in the act of possession. Alcalde Antonio Ma. Pico had a secretary by the name of José Fernandez, who was a witness in this case, and who was also the escribano of the Court, but the Padre Real expressed a wish that these documents, whatever they were, should be prepared by one Gutierrez, a teacher at the Mission of Santa Clara, which was a league or two from the Juzgado of San José Guadalupe. They were not, therefore, prepared by the Secretary of the Court, and all he knows upon the subject is, that two or three days after the party returned from the mine, the schoolmaster, Gutierrez, brought him the document, and said, there, now, it is all finished, and here is your fee, giving him three dollars and a half, and so, in the language of the witness, the document remained in the Court, but he expressly states that he never read it, or examined it and when asked by the United States what he did with it, he answered: It remained there in Court. I did nothing else with it. Other witnesses were examined upon these topics, but the statement given contains the substance of the evidence on both; and all the witnesses agree that there was no survey, no stakes set, and no boundaries marked in any manner. On this state of the case, it is insisted by the United States, that the acts of the Alcalde were absolutely void, but the claimant insists that even conceding the irregularities to have been such as represented, still that the acts of the Alcalde were not absolutely void, but at most only voidable, and that they were afterwards ratified and confirmed by the Supreme Government. 7. Reliance, it is proper to remark, is placed by the claimant upon the evidence of ratification, as affording a sufficient and complete answer to all the objections taken to the claim made by him to the mine. Examination of that evidence, as exhibited in the copies of documents, introduced as true copies of originals on file in the Departments of the Supreme Government, has already been so fully made that a brief reference to it in this stage of the investigation will be sufficient. Statement of the claimant in his communication to the Junta de Fomento is, that he had discovered a mine of quicksilver in the Mission of Santa Clara; that he had denounced and taken possession, not only of the mine, but also of an extent of three thousand varas in all directions, that he had formed a company to work it, had constructed the pit, and had complied with all the conditions prescribed by the ordinance. Required, as he was, to make the representation in writing, it was of course prepared with deliberation; and yet he falsely states that the mine is situated in the Mission of Santa Clara, and suppresses altogether the fact stated in his petition, and repeated in the act of possession, that the mine was situated on the rancho of José Reyes Berreyesa. He refers to none of the documents, and none were produced, and this remark applies as well to his seventh proposition as to his representations in the preliminary part of his communication to the Junta. They adopted his seventh proposition, and recommended to the President, through the Minister of Justice, that the possession given to the claimant by the local authorities, as he represented, should be confirmed. Two accounts are given, as to what was the action of the President on the occasion. First, in the dispatch of the Minister of Justice, and secondly, in that of the Minister of Relations. In the first, the language is, that the President has been pleased to approve in all its parts the agreement made with (the claimant) in order to commence the working of said mine; and in the second, the language is the same, except that the purpose of the agreement, as described, was to commence the exploration of that mine. Neither the one or the other contains a word which, by any proper construction, can be held to confirm the acts of the local authorities, or any of them, or to vest in the claimant any right, title, or interest in the mine. None of the documents, executed by the Alcalde were before the President, and it does not appear that he ever heard of them in any other manner than by those vague representations, or others of a similar character. Action of the President evinces caution and circumspection, and the several communications, taken together clearly show that he did not act at all upon the seventh proposition of the claimant, or upon his representations in respect to the juridical possession of the mine; and there is nothing in the marginal order in any respect inconsistent with this view of the case, as it is evident that the purpose and intent of that order was accomplished in the contemporaneous dispatch of the Minister of Justice. Credence was evidently given to the representations that a mine had been discovered, and the President was willing that an advance of $5,000 or $6,000 should be made to the claimant to enable him to commence its exploration. Directions were accordingly given to approve the agreement to that extent, and to make the advance and furnish the retorts and other apparatus therein mentioned. 8. Second grants of land in the Department of California were seldom made by the Governors, and as the claimant already had one, he could hardly expect to obtain another without the special approbation of the Supreme Government. Hence his eighth proposition that a grant should be made to him, as a colonist, which was approved by the President so far as appears in the dispatch of the Minister of Relations already explained. Grants of that description conveyed no interest in the minerals, as was well known to the claimant; and in respect to the eighth proposition, the President was silent, evidently reserving that matter for further information and a more deliberate consideration. Irrespective, therefore, of the question of fraud, we are of the opinion that, by the true construction of the several communications, the claimant fails to show that the acts of the Alcalde have in any manner been ratified or confirmed by the Supreme Government. It is clear, therefore, that the respective documents executed before the Alcalde must stand or fall, by what appears in the instruments, when considered in connection with the evidence, showing what was lone at the time of their execution. Conceding full credit to the witnesses, and giving the utmost scope to their testimony consistent with the language employed, still it is obvious from the claimant's own showing that he never made any registry of the mine, within the meaning of the provision requiring it to be made. Such a document cannot be said to have been registered, merely because it was handed to the Secretary of the Alcalde, before whom it was executed, and was for a time somewhere in the courthouse, especially when it appears that it was subsequently abstracted from the depository, if such it may be called, and was not returned to it for years afterwards, and then clandestinely and under circumstances of the greatest suspicion. Constrained as we are to regard the facts in point of view, the conclusion is inevitable that there was no legal registry of the mine, and the evidence is all one way to show that there was no survey of the nine hundred pertenencias granted, and no boundaries were fixed, and no stakes were set as required in the ordinance. Assuming, therefore, that the Alcalde had jurisdiction over the subject-matter, still, as it was but a special and limited authority, in order to give any validity to his acts he must exercise it in the manner required by law, and not having done so, his acts are void. U.S. vs. Osio, 23 How., p. 283; U.S. vs. Castillero, 23 How., p. 466. VIII. Conduct of claimant throughout shows that he knew that he had no title as is plainly to be inferred from the fact that in the several conveyances made by him he never referred to the registry of the mine or to the acts of juridical possession supposed to have been executed before the Alcalde as the source or foundation of his title. 1. Whenever he referred to the source of his title he uniformly pointed to the writing of partnership. Sale of five barras or shares of the mine was on the 17th day of December, 1846 made by the claimant to Alexander Forbes, of Tepic. 2. Negotiations for the purchase and sale commenced on the 5th of the same month between the claimant and Francisco M. Negrete, the agent of the purchaser. Several interviews took place, but the negotiations were suspended to await the arrival of the Padre Ugenio McNamara, the agent of José Castro. He arrived from Tepic a short time before the contract of sale was completed, and Negrete testifies that up to that time he had seen no other document than the writing of partnership, and no other had been mentioned. Padre McNamara brought with him the contract of lease or avio, which had been concluded between him, as the agent of José Castro, and Alexander Forbes. 3. Claimant approved the contract of avio, voluntarily putting into it his claim to the two square leagues of land. At the same time, also, he executed the conveyance of the five shares to the purchaser, but in none of these transactions was any mention made of the registry of the mine or of the act of juridical possession, leaving it to be inferred that the writing of partnership was the only document ever executed before the Alcalde, or certainly that there was no other, that the claimant thought proper to exhibit to a purchaser. IX. Much stronger evidence, however, is exhibited in the record to show that the parties most interested in the mine, and who were engaged in working it, knew full well that the supposed title was invalid, as is fully shown by the correspondence between James A. Forbes and Alexander Forbes, or between the former and Barron Forbes & Company. More than forty letters between these parties are exhibited in the record. Brief references will be made to such as have the most direct bearing upon the question under consideration, omitting all such parts as are not material to the inquiry, but preserving the substance. 1. Under date of the 5th May, 1847, James A. Forbes suggests to William Forbes, but evidently in reply to letters received from Alexander Forbes, that it is of the most vital importance to obtain from Mexico a positive, formal and unconditional grant of the two sitios of land conceded to thè claimant according to the decree appended to the contract, and also an unqualified ratification of the juridical possession which was given of the mine by the local authorities, including, if possible, the three thousand varas of land given in that possession as a gratification to the discoverer. He also suggests in the same letter that the documents should be made out in the name of the claimant and his partners. 2 No letter is produced which is a direct reply to that communication. Record shows that Alexander Forbes visited California early in October, 1847, and it appears that he remained there until near the close of March, 1848, engaged, at least for a part of the time, in exploring the mine and in overseeing the prudential affairs of the Company. During that period other persons acquired an interest in the mine, and among the number were Barron, Forbes & Company, and they accordingly wrote to James A. Forbes, under date of the 11th of April, 1849, informing him that hereafter he might expect that the mine would be worked to the utmost of its capabilities of production. On the 20th of May, 1849, they wrote another letter to the same individual, saying in effect that from certain circumstances that he had mentioned it might be necessary to purchase some lands in the vicinity of the mine and hacienda of New Almaden, and authorized him to make such purchases, not to exceed in price the sum of $5000, as might be necessary to the secure possession of the mine and hacienda, or to effect such other arrangements as he might deem necessary for that purpose. 3. Seven days after the date of that letter, and before it was received, James A. Forbes arrived at Tepic, and while there left with Alexander Forbes the following memorandum to be delivered to the claimant: Very private. Memorandum of the documents which Don Andres Castillero will have to procure in Mexico. 1st. The full approbation and ratification by the Supreme Government of all the acts of the Alcalde of the District of San Jose, in Upper California — in the possession given by the said officers of the quicksilver mine situated in his jurisdiction, to Don Andres Castillero, in December, 1845. 2d. An absolute and unconditional title of two leagues of land to Don Andres Castillero, specifying the following boundaries: — On the north by the lands of the Rancho of San Vicente and Los Capitancillos; on the east, south, and west by vacant lands or vacant highlands. 3d. The dates of these documents will have to be arranged by Don Andres, the testimony of them taken in due form, and besides, certified to by the American Minister in Mexico, and transmitted to California as soon as possible. Tepic, May 27, 1849. Proofs in the case show that the author of that memorandum returned to San Francisco, and on the 28th day of October following, in a letter to William Forbes, he again called his attention to the importance of his former suggestions as to the necessity of perfecting the title to the mine. In that letter he also referred to verbal explanations previously given by him to his correspondent and Alexander Forbes, and then proceeds to impress upon the mind of his correspondent the vast importance of securing from Mexico the documents comprised in the memorandum left with Alexander Forbes, when he was in Tepic, for the claimant. Two days afterwards he wrote again to Alexander Forbes, in which letter, among other things, he says to his correspondent, you will now readily perceive the great importance of my advice to you to purchase a part both of the lands of Cook and of the Berreyesas. You were of the opinion that this measure would not be necessary in view of the supposed facility of getting the title to the mine perfected in Mexico, and he complains that more than five months have elapsed since it was decided that the claimant should procure the necessary documents in that city, and that they have not been sent to him. 4. His description of his situation shows plainly that he was in great want of the documents, because he says that on the one side he depended upon the precarious and illegal possession of the mine granted by the Alcalde of the District to the claimant, who was himself in reality the judge of the quantity of land given by the Alcalde; and on the other side, he says he was attacked by the purchasers of the same land declared by the claimant himself to comprise the mine. Evidently that letter was regarded as one of importance, for it called forth two replies, one from Barron, Forbes & Co., and one from Alexander Forbes. By the one first mentioned, he was informed by his correspondent that on the 13th of the same month they had enclosed to him a notarial copy of the grant of land made by the Mexican Government to the claimant. They acknowledged therein the receipt of his letters, thanked him for his able conduct, expressed satisfaction in view of the document sent, that he had not been obliged to purchase the land of Berreyesa, but submitted the matter to his best judgment, requesting him, however, to keep in view, that at all hazard, and at whatever cost, the property of the mine must be secured, adding, Castillero, we expect, will soon be here from Lower California, and if anything can be done in Mexico, he is the fittest person to procure what may be wanted. Recurring to the other letter, it will be seen that it was more guarded, but the writer recommends that his correspondent and agent should proceed, without fear of disapproval, or waiting for instructions, in taking such measures as shall preserve this valuable negotiation from any risk from those unprincipled claimants who have lately given him so much trouble, or from any other proceedings that may take place. 5. Another letter, also, was written by Alexander Forbes to James A. Forbes, under date of the 1st of December, 1849, in which he stated that the copy of the grant of land made to the claimant was, by mistake, not the one meant to be sent; and he explains the difference, which was, that the one sent was directed at the foot to the Governor, but the proper one was directed to the claimant, and was deposited at Monterey. Explanation is also given as to the difference in the legal effect between the two documents, which was, as explained, that by the first one the delivery by the Governor was perhaps necessary, whereas the other, being addressed directly to the claimant, did not require that formality, nor was any other proceeding necessary, thus making it, as the writer affirmed, a better document than the greater part of the other titles for lands in that Department. Having made these explanations, he then expressed the hope that the well known cleverness of his correspondent had already enabled him to find out the mistake; suggesting, but rather doubtingly, that the one previously sent should be withdrawn. and the second one substituted in its place; but presently, as if upon reflection, mentions another difficulty which might arise, and that was that the copy of the grant of the two sitios of land inserted in the contract of lease or avio was also directed to the Governor, and in view of that fact he finally decided to send a copy of all the documents and leave it to the good judgment of his correspondent to make such use of them as he should think proper. Nothing need be remarked respecting the copy of the document last sent, except to say that if it was addressed to the claimant it was a forgery, as the whole evidence shows that but one dispatch upon the subject was ever issued by the Minister of Relations, and that was directed to the Governor. 6. Reference will next be made to another letter from Alexander Forbes under date of the 3d of February, 1850, which is also addressed to the same person as the preceding letter. Among other things the writer states that he has every reason to believe that the documents mentioned by his correspondent would be found in the City of Mexico, and as the claimant would return that way he had no doubt they would be procured. In another part of the same letter he also states that at present they think it may be the best plan to get an authenticated copy of the approval of the Mexican Government of the grant of three thousand varas given by the Alcalde on giving possession of the mine, as a doubt may be started whether the Alcalde, acting as the `Jues de mineria,' had a right to make this grant, yet if approved by the Government of Mexico, before the possession of the country by the Americans, there could be no doubt on the subject.        Castillero says such approval was given, and that on his arrival in Mexico he will procure a judicial copy of it. This is the plan we shall adopt if we hear nothing from you to alter this resolution. Writing from the mine, James A. Forbes, on the 26th day of February, 1850, replied to that letter, and the importance of that reply makes it necessary to give a somewhat extended extract from it as disclosing the intent and purpose of the entire series. Speaking of the claimant, he says: He succeeded in obtaining the grant of two sitios to himself on the mining possession in Santa Clara, while that very act of possession declares that the mine is situated on the lands of one José R. Berreyesa, five leagues distant from Santa Clara, and you will at once perceive that such a discrepancy would not fail to attract the attention of United States Land Commissioners and to put the case of the mine in great risk in the judicial ordeal to which its title will be subjected. Without troubling you with what I have so many times written and explained to you verbally, on the importance of the acquisition of the document, I will only say now what it must be, and it is this: 1. A full and complete ratification of all the acts of the Alcalde of this jurisdiction in the possession of the mine. 2. A full and unconditional grant to Castillero of two sitios of land covering that mining possession, expressing the boundaries stated by me in the memorandum I left with you at Tepic. Both of these documents to be of the proper date, and placed in the proper governmental custody in Mexico; and — 3. The necessary certified copies of them duly authenticated by the American Minister in that capital, taken and sent to me at the earliest possible moment. Prompt reply was made by Barron, Forbes & Co., to that communication, under date of the 2d of March, 1850, in which they say: Mr. Barron and Don Andres Castillero, are about to proceed to the City of Mexico and will attend to what you have recommended. When that letter was written, the persons therein named were about to proceed to Mexico, but Alexander Forbes, nine days later, wrote a letter to the same correspondent, in which he stated that Mr. Barron and Castillero have gone off to Mexico, and I wrote them to-day respecting the document you know of, which, if possible, will be procured. Wishing, doubtless, to keep his correspondent well advised of the efforts being made to comply with his requisition for the title papers to the mine, he wrote him again on the 7th of April, 1850, in which he stated that Mr. Barron and Castillero have arrived in Mexico, and have every prospect of finding the documents you are aware of and which will, of course, be forwarded as soon as possible. Counsel for claimant admit that every one of these letters are genuine, and the proofs in the case are full to that effect. Comments upon these extraordinary documents are unnecessary as they disclose their own construction and afford a demonstration that those in the possession of the mine, holding it under conveyance for the claimant, knew full well that he had no title. X. More than that can hardly be required in this case, but it is equally true, and satisfactory proofs are exhibited in the record to show it, that Mexico herself knew, must have known, that the pretensions of the claimant were unfounded, else she never could have agreed to the 10th article of the treaty, or, when that was stricken out, never could have given her sanction to the corresponding explanations that were signed by the duly authorized representatives of both countries. Remarks, however, upon that topic are unnecessary, and we forbear to pursue the subject. The decree of the District Court in No. 133 is reversed, and in the other the appeal is dismissed, and the cause remanded with directions to dismiss the entire petition.",Two other principal objections are made to the confirmation of the claim:
+344,86446,1,1,"As the contract for the purchase of these lands, and the mortgage given to secure the balance of the purchase-money, were executed in the island of Cuba, the court below allowed the current and legal rate of interest of that place (five per cent.) from the time the respective payments became due. It is a dictate of natural justice, and the law of every civilized country, that a man is bound in equity, not only to perform his engagements, but also to repair all the damages that accrue naturally from their breach. Hence, every nation, whether governed by the civil or common law, has established a certain common measure of reparation for the detention of money not paid according to contract, which is usually calculated at a certain and legal rate of interest. Every one who contracts to pay money on a certain day knows, that, if he fails to fulfil his contract, he must pay the established rate of interest as damages for his non-performance. Hence it may correctly be said, that such is the implied contract of the parties. (See 2 Fonblanque, Eq. 423. 1 Domat, book 3, tit. 5.) The appellants themselves seem to have been fully aware of the justice of this rule, as in all their communications with the mortgagees they have admitted their liability to pay interest, and in their bill, filed in 1837, to have satisfaction entered on the mortgage (which makes a part of the record of this case), they offer to pay interest at five per cent. from the 8th of December, 1821. This may not of itself be a sufficient reason for disallowing their present exception, if founded in justice, but it affords a strong presumption that it has no such foundation. The reasons alleged in support of this exception are, first, that the mortgagors had not possession of the land, or at least received no profits from it, and that, in either case, by the civil law, the purchaser is not bound to pay interest. But we are of opinion that this objection is founded on a mistake both of the law and the fact. The mortgage was given more than two years after the sale to the mortgagors and title executed to them. A large portion of the purchase-money had been paid, and no objection made, that the purchasers had not all the possession of which the land was capable. Both parties knew that, although the Indians had ceded their title, they still continued a transient occupancy of the lands for hunting-grounds. They may have infested the lands, and rendered it dangerous for the owner to occupy them in time of war; but their possession was not what the law would term adverse, not being with claim of title. There was no covenant by the vendor to expel or exterminate the Indians; the purchasers received such possession of the land as could be given them, cum onere. It was not expected that the Indians should attorn to them or pay them rent. The purchasers of over a million of acres of wild lands did not expect to make profits by actual cultivation or reception of rents. Their expectation of profit was from the increase in value of the lands from efflux of time and the progress of improvement. These profits they have realized, doubtless to the amount of more than a thousand per cent. on their original investment. Moreover, the record of the Forbes case, decided in this court (and read in evidence in this case, by consent), shows that, in 1828, eleven years after the purchase, the appellants, or those under whom they claim, declared under oath that they had had peaceable possession of the land ever since their purchase. If, since that time, or before it, an actual pedis possessio of these lands may have proved difficult or dangerous, owing to Indian wars, it surely cannot be seriously argued, that any warranty, expressed or implied, either by the civil or the common law, makes the vendor liable for the acts of a public enemy, or for a detention or disturbance of the possession by the act of the sovereign power. The purchasers have received full seizin and possession of these lands in the year 1819, under a title proved to be good and indefeasible; the execution of this mortgage is an assertion of the fact; they have neglected to comply with their contract to pay the money secured by the mortgage for ten years, at least, without any apology; and it would be a strange doctrine indeed, and one equally unknown to the civil as to the common law, that an accidental disturbance of the possession by the public enemy, happening so many years after such default of payment, could retroact to justify its previous detention, or operate as a defence to the payment either of principal or interest. Besides, if it were true that, during all this time, the vendee was unable to have such a possession of his land as to receive profits from it, the doctrine of the civil law, as quoted by the learned counsel for the appellant, — that the vendee is not liable for interest where he received no profits from the thing purchased, — has no application to the present case. It applies only to executory contracts, where the price is contracted to be paid at some future day, and the contract is silent as to interest. In such a case, the civil law will allow interest from the date of the contract of sale, if the vendee has had possession and received profits from the thing purchased. In this it differs from the common law, which would not allow interest before the day fixed for payment, unless specially contracted for. But where the purchaser has contracted to pay on a given day, and neglects or refuses so to do, both law and equity subject him to interest as the measure of damages for the breach of his contract. A second objection made to the payment of interest is, that the purchasers incurred much trouble and expense in obtaining any acknowledgment of their title from the United States, and, although it was finally decided by the Supreme Court of the United States that their title was valid, yet that the courts of Florida had declared it invalid, and thus caused a cloud to hang over it for two or three years, which hindered the settlement, improvement, and sale of the lands. It is hard to conceive on what grounds these facts should constitute a defence to the payment of interest. The vendor did not, and no sane vendor would, covenant that his vendee should enjoy the property in all future time, free from unjust interruption or oppression either by the sovereign power of the State, the public enemy, or individual trespassers. At the time this company purchased this claim from Forbes, the United States and Spain were in treaty for the cession of Florida; and doubtless it was the prospect of this change of sovereign, and the anticipated increase in value in consequence thereof, that moved them to purchase this large claim on speculation, and to covenant to pay the money for it, without waiting to see whether the United States would confirm the title, or without exacting from the vendors any covenant for the payment of any expenses to be incurred in obtaining the confirmation of their title by the new sovereign. It may be admitted, also, that a court of equity would have enjoined the vendor from enforcing the collection of the purchase-money while the decree of the Florida court as to the title remained unreversed, from an apprehension of a total failure of consideration; yet as that judgment was reversed, and as the vendee was never evicted or put out of possession, he could have no claim to be released from paying interest, even during the time his title was thus unjustly subject to a cloud, much less for any term preceding its existence, or since its removal. As we have already said, there was no covenant in this sale, nor is there in this or in any sale, either of real or personal property, any implied warranty by the vendor that his vendee shall enjoy it for ever free from all unjust or illegal interference either by the sovereign, or the citizen, or the public enemy. If the money secured by this mortgage had been paid when it became due, the mortgagee could have retained it with good conscience, and the mortgagor could have shown no right to recover it back on the ground of failure of consideration; for the consideration has not failed, and the title to the lands sold is indefeasible. And such being the case, it is hard to perceive any reason why the mortgagor should not be liable to the legal damages for detaining money which he was bound to pay. Another reason urged against the allowance of interest in this case is founded on the allegation, that, from the death of Forbes, in 1822, till 1836, when John Innerarity took out letters of administration in Florida, there was no person to whom the mortgagors could legally make payment. But this argument is founded on a mistake of facts, as it appears clearly by the record, that, whenever the mortgagors were ready or willing to pay, they found persons ready to receive and give them a good and sufficient acquittance. John Forbes was a trustee, as to this money, for the heirs of Panton and Thomas Forbes. When the mortgagors called on the executors of John Forbes to make a partial payment on the mortgage, they declined to receive it, but directed the payment to be made to the cestui que trusts, which was accordingly done. In October, 1823, one half of the first instalment was paid to William H. Forbes, acting for himself and the other heirs of Thomas Forbes. In the same year, also, the mortgagors paid to James Innerarity, who represented the heirs of Panton, the sum of $2,680.81, and in February, 1825, the further sum of $2,080.87. There is no evidence of any tender of the balance, either to the executors of Forbes or to the cestui que trusts. This objection is therefore without foundation; and this exception to the decree of the Court of Appeals is overruled. II. The second exception is to the refusal of the court to allow a credit of £375, claimed by the mortgagors. After three of the five instalments into which the price of the lands was divided had been paid, but before the execution of the mortgage to secure the last two, it was discovered that John and James Innerarity, who were owners of one fifth of the Panton interest (or one tenth of the two thirds sold), would not assent to the sale made by John Forbes. Whereupon, as appears by all the testimony and the admissions of the parties, it was agreed to refund to the purchasers a proportional amount (being one tenth) of the purchase-money. Accordingly, three several sums of £375 were refunded to John Carnochan, who then represented the purchasers. Besides which, says Forbes, in his letter of 10th of December, 1819, you will have to deduct from the acceptances due in 1820 and 1821 two similar sums at these distinct periods. On the trial below, the mortgagees insisted, that, as the mortgage was given for the balance due on the purchase nearly a year after the above-stated letter of Forbes, the fair presumption would be, that all the deductions for the defect of title in the Panton share had been already made, as the parties were fully aware of the difficulty, and had already refunded large sums on account of it; and, as further time was given in the mortgage for the payment of the last two instalments, it would not be probable that the parties had inadvertently given a security for a larger sum than was due. On the contrary, the mortgagors contended that they were entitled to a credit for two sums of £375, according to the admission in Forbes's letter. The Court of Appeals allowed them a credit for one sum of £375, but refused to allow the other; which constitutes the ground of the second exception to the decree. As the correctness of the position taken by either party, on this point, can be subjected to the test of mathematical calculation based on admitted facts, we are of opinion that this exception has not been sustained. The whole amount of purchase-money for the two thirds conveyed was £15,000 sterling. The deduction for the Innerarity interest was one tenth, or £1,500, which would make four instalments of £375 each. As the mortgage is given for the last two instalments without any deduction, and as it is admitted that three instalments of £375 each were refunded, it is plain that the fourth sum of £375 was not deducted from the mortgage, and equally plain that John Forbes was mistaken when he said that two sums of £375 remained yet to be deducted. The origin of this mistake can easily be discerned. The first payment was one fourth of the whole purchase-money, or £3,750; the one tenth refunded was £375; but as the remaining three fourths were divided into four instalments, each of £2,812 10s., the deduction from each would be but £281 5s. He overlooked the fact, that the last four instalments, being each one fourth less than the first, the amount to be deducted would be diminished in the same ratio. The oversight or mistake of Forbes in 1819 is not greater than that of both parties in 1820, when they included in the mortgage £375 which they knew was not due. But as the fact is fully established, that the only subject of deduction was one tenth of the whole, and that three sums of £375 had been refunded, and no more, the admission of Forbes, on the one side, and the presumptions of fact drawn from the execution of the mortgage, on the other, must both yield to the certainty of arithmetic. III. The third and last ground of exception urged by the appellants is the refusal of the court to allow them a credit for the sum of $13,357.75, paid to Thomas M. Blount, the agent and attorney of John Innerarity. Some two years after the commencement of the litigation between these parties, the appellants made a payment to Thomas M. Blount of $13,357.75, under the following circumstances. It was admitted by both parties that a large sum was due on the mortgage, but they differed widely as to the amount. Innerarity, being willing to receive any amount which the mortgagors were willing to pay, and give them a general credit for so much paid on account, without compromitting his right to recover the whole amount claimed by him, gave a power of attorney to Thomas M. Blount, who was going to New York, where the appellants resided, to receive from the trustees of the Appalachicola Land Company, in the city of New York, any sum or sums of money on account of and in part payment of the mortgage, &c., and to give such receipt or receipts, release or releases, therefor, as may be deemed requisite to exonerate the said trustees from so much of the said mortgage as may be paid by them on account and in part payment, &c., &c. With this power of attorney, Blount proceeded to New York, and, instead of receiving such sums as the mortgagees might choose to pay on account, and giving such receipts or releases as he was authorized to give, he assumed to adjust and settle with the company the whole balance due on the mortgage, and to act as if he had been authorized to arbitrate and decide all the matters in variance between the parties, in the controversies then pending in the courts of Florida. For the sum of $ 4,832.35, he gave the mortgagors a discharge for the balance of the first instalment, including the disputed item of damages on the bill of exchange, claims, &c. And for a further sum of $ 8,525.38 he gave a discharge of one half the last instalment. Both Blount and the appellants well knew that Innerarity had uniformly and tenaciously claimed a much larger amount as due on each of these items; and they ought to have known, that, even if no more was justly due on them than the amounts paid, Blount had no authority to compromise or adjudicate on the justice of Innerarity's claim. Besides these sums of money which are stated in Blount's release to be the whole consideration thereof, he received also a written contract of Messrs. Curtis and Griswold, to pay a further sum of $ 5,000, on certain conditions; but to whom, or how, or on what contingency, it is difficult to discover from any thing that appears on the face of the paper, or the evidence in the cause. Soon after this transaction (on 20th January, 1840), Innerarity gave notice by letter to the appellants, that he repudiated the act of Blount, and says: — So soon after his return as I saw Mr. Blount, he informed me of the provisional arrangement that he had made with you, subject to my approval. But this involved the suspension of the sum of $ 5,000, with the corresponding interest, &c., for which your contingent bond was proposed, &c., with the preliminary, however, of the cancellation of the moiety of the mortgage. This proposition, I confess, startled me, &c. The appellants, though thus informed by Innerarity that he considered Blount as placed in the position of their agent, and that he was unwilling to ratify this provisional arrangement, nevertheless proceeded to put on record in Florida the release given them by Blount. When this came to the knowledge of Innerarity, he again addressed them, by letter of 19th May, 1840, as follows: — I addressed you a letter on the 20th of January last, and subsequently on the 25th of February, by original and duplicate, in which I advised you, that, having learned from T.M. Blount that he had an arrangement with you subject to my approval, as he stated to me and others, in relation to a discharge of one moiety of the mortgage, &c., I did not feel at liberty, as the representative of the interest of others, for the reasons stated in my said letter of 20th of January, to sanction the provisional contract which he made. To these letters I have received no answer, but to my great astonishment have just seen the deed of release given to you on the 19th of September, by Mr. Blount, in which he proposes to act as my attorney, and which deed professes to discharge the trustees from one moiety secured by the above-mentioned mortgage. In so doing Mr. Blount has transcended his authority as my attorney, as will appear by reference to my letter of attorney, &c., &c. Feeling it to be my duty to disavow this unauthorized assumption of my attorney, and not less my duty to give you timely warning to protect yourselves from injury, I hereby notify you that I disavow and repudiate the deed of release, &c. I have not received, nor will not receive, any part of the money paid by you to Mr. Blount; but will look to you and the original security for the debt due under the said mortgage. The receipt of these letters is admitted by the appellants in their answer to a supplemental bill filed by Innerarity (June 12th, 1840), for the purpose of having Blount's release delivered up, and the whole transaction between him and the trustees declared fraudulent and void. On the 6th of July, 1840, Carnochan, one of the trustees, filed his cross bill to make Blount a party, and praying that, inasmuch as the money paid to him by the trustees had not been applied to the purpose for which it was designed, it may be paid into court and held under their control. On the 9th of April, 1841, the appellants filed another cross bill, insisting on the full power of Blount in the transaction, and praying the court to confirm and establish the release, and to order satisfaction to be entered on the mortgage accordingly. And finally, on the 27th of June, 1841, after it was ascertained that Blount and the Bank of Pensacola (of which he was president, and in which he had deposited the money) were both insolvent, and that the money paid to him was lost, the appellants, in their answer to the cross bill, for the first time, offer to waive the said release, and be satisfied that payment shall be held and regarded as on account of the mortgage generally, and be credited pro tanto. On these facts, the appellants contend that they are entitled to a credit for the money paid to Blount, because he was authorized to receive it; and although the settlement he made and the release he gave may be void for want of authority, yet his acts, so far as they were authorized, were valid and binding on his principal. Regularly it is true, says Lord Coke, that when a man doth less than the commandment or authority committed unto him, then, the commandment or authority being not pursued, the act is void. And when a man doth that which he is authorized to do, and more, then it is good for that which is warranted, and void for the rest. Yet both these rules have divers exceptions and limitations. (Co. Lit. 258 a.) And Lord Coke is well warranted, says Mr. Justice Story (Story on Agency, § 166), in suggesting that there are exceptions and limitations. Where there is a complete execution of the authority, and something ex abundanti is added which is improper, then the execution is good and the excess only is void. But when there is not the complete execution of the power, or when the boundaries between the excess and the rightful execution are not distinguishable, then the whole would be void. It is contended, in the present case, that the excess and the rightful execution are easily distinguishable, and that the receipt of the money was a valid act and binding on his principal, though the settlement and release were void. But we are of opinion, that the appellants have not put themselves in a condition to have the benefit of this principle. Blount's power of attorney was a bare authority to receive money on account of the mortgage then in litigation, if the appellants chose to pay him any, leaving all the questions in dispute between the parties open to future adjustment. But the mortgagors refuse to pay him money on the conditions on which he was authorized to receive it, and give a valid acquittance. On the contrary, the money given to Blount is on their own terms, and in consideration of a settlement, arrangement, and release, which they knew, or ought to have known, Blount had no authority to make. The money paid, the bond given, the receipt taken, discharging them from the balance claimed on the bill of exchange and from one half of the last instalment, constitute one transaction. Having advanced the money on their own terms and conditions, and not on those tendered by Innerarity, they put him into a situation in which he must either affirm or repudiate the whole transaction. For if he accepted he money, they might insist that he could not reject the consideration on which it was given, on the familiar principle of the law, that the principal cannot ratify a transaction of his agent in part, and repudiate it as to the rest. (Story on Agency, § 250.) Besides, by thus undertaking to enter into a treaty with Blount which they knew could not be binding without the assent of Innerarity, they in fact constituted Blount their ambassador or agent to obtain its confirmation. They had a perfect right to refuse to pay money on the terms dictated by Innerarity in his letter of attorney; and Innerarity had an equal right to refuse it on their terms. And when informed by him, soon after the transaction, that he considers Blount as their agent, and that he had proposed this transaction as a provisional arrangement subject to the approval of Innerarity, they keep silence till he again repudiates the transaction and files a bill to set it aside, and never intimate a willingness that Innerarity shall receive the money on the terms he offered, till near two years afterwards, when the money was lost by the insolvency of Blount and the bank. This assent of the appellants to the terms of Innerarity came too late, after the money had been lost by their obstinate pertinacity in endeavours to compel him to accept it on their own terms. We are of opinion, therefore, that the Court of Appeals have not erred in refusing to credit the appellants with this sum as a payment on the mortgage. The decree of the Court of Appeals of Florida is therefore affirmed. Order. This cause came on to be heard on the transcript of the record from the Court of Appeals for the Territory of Florida, and was argued by counsel. On consideration whereof, it is now here considered and decreed by this court, that the decree of the said Court of Appeals in this cause be and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum, and that the time of redemption be extended to six months from and after the filing of the mandate of this court in this case in the court below.",As to the interest.
+345,110578,1,2,"In order to make life insurance coverage available to members of the uniformed services on active duty, particularly in combat zones, Congress in 1965 enacted the SGLIA. See H. R. Rep. No. 1003, 89th Cong., 1st Sess., 7 (1965). The impetus for the legislation was the escalating level of hostilities and casualties in the then ongoing Vietnam conflict; this had prompted private commercial insurers to restrict coverage for service members. [2] See 111 Cong. Rec. 24339 (1965) (remarks of Rep. Teague, Chairman of the House Committee on Veterans' Affairs); see also S. Rep. No. 619, 89th Cong., 1st Sess., 3 (1965). The earlier program of federally sponsored life insurance for service members, see National Service Life Insurance Act of 1940, 54 Stat. 1008, and National Service Life Insurance Act of 1958, as amended, 38 U. S. C. § 701 et seq. (NSLIA), placed in effect shortly before the involvement of this country in World War II, had been allowed to lapse after the end of the Korean hostilities when commercial insurance generally became available to service members. [3] Accordingly, NSLIA coverage could not be obtained by many service members on active duty in 1965. See 111 Cong. Rec. 24339 (1965) (remarks of Rep. Teague). Although its purposes and provisions resemble those of the NSLIA in many respects, the SGLIA differs from the predecessor program in that it directs the Administrator of Veterans' Affairs to purchase coverage from one or more qualified commercial insurers instead of offering coverage by the United States itself. See 38 U. S. C. § 766. Thus, under the SGLIA, the Government is the policyholder, rather than the insurer. The Administrator has contracted with petitioner Prudential Insurance Company of America, which now serves as the primary insurer under the SGLIA and which operates, under Veterans' Administration supervision and pursuant to 38 U. S. C. § 766(b), the Office of Servicemen's Group Life Insurance in Newark, N. J. The SGLIA initially provided insurance only for members serving in specified services. 79 Stat. 880. The maximum coverage allowed was then $10,000. Id., at 881. Since 1965, however, statutory changes have expanded both eligibility for coverage and the amount of insurance available. [4] The program is operated on a presumptive enrollment basis; coverage is provided automatically and premiums are withheld from the service member's pay, unless the insurance is expressly declined or is terminated by written election. 38 U. S. C. §§ 767(a) and 769. [5] In order to make the insurance available through a commercial carrier at a reasonable rate, notwithstanding the special mortality risks that service members often must assume, Congress undertook to subsidize the program. See S. Rep. No. 91-398, p. 2 (1969). A sum representing the extra premium for special mortality risks is periodically deposited by the United States into a revolving fund that is used to pay premiums on the master policy. See 38 U. S. C. §§ 769(b) and (d)(1). The fund otherwise is derived primarily from deductions withheld from service members' pay. §§ 769(a)(1) and (d)(1). Accordingly, depending upon the conditions faced by service members at any given time, the program may be financed in part with federal funds. See S. Rep. No. 91-398, at 2. The SGLIA establishes a specified order of precedence, 38 U. S. C. § 770(a), for policy beneficiaries. By this statutory provision, the proceeds of a policy are paid first to such beneficiary or beneficiaries as the member . . . may have designated by [an appropriately filed] writing received prior to death. If there be no such designated beneficiary, the proceeds go to the widow or widower of the service member or, if there also be no widow or widower, to the child or children of such member . . . and descendants of deceased children by representation. Parents, and then the representative of the insured's estate (an obvious bow at this point in the direction of state law), are next in order. Ibid. See also 38 CFR § 9.16(i) (1980). In 1970, by Pub. L. 91-291, § 5, 84 Stat. 330, Congress added an anti-attachment provision. With certain exceptions not applicable here, this provision shields payments made under § 770(a) from taxation and from claims of creditors, and states that the payments shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. § 770(g). Pursuant to his general rulemaking authority over veterans' programs, § 210(c)(1), the Administrator has promulgated regulations implementing the SGLIA. These provide that the insured may designate any person, firm, corporation or legal entity as a policy beneficiary, and any such designation or change of beneficiary . . . will take effect only if it is in writing, signed by the insured and received [by the appropriate office] prior to the death of the insured. 38 CFR §§ 9.16(a) and (d) (1980). A change of beneficiary may be made at any time and without the knowledge or consent of the previous beneficiary. § 9.16(e). And [n]o change or cancellation of beneficiary . . . in a last will or testament, or in any other document shall have any force or effect unless such change is received by the appropriate office. § 9.16(f).",The Statutory Background
+346,89840,1,1,"
+Under this branch of the case the company claims that the exemption of the capital stock from taxation is equivalent to an exemption of the property purchased with or represented by the capital, and there are undoubtedly many cases to be found in this and other courts where it has been held that an exemption of the capital stock of a corporation from taxation was equivalent to an exemption of the property into which the capital had been converted. But in all these cases we think it will be found that the question turned upon the effect to be given the term capital, or capital stock, as used in the particular charter under consideration, and that when the property has been exempted by reason of the exemption of the capital, it has been because, taking the whole charter together, it was apparent that the legislature so intended. Thus the capital stock of a bank usually consists of money paid in to be used in banking, and an exemption of such capital stock from taxation must almost necessarily mean an exemption of the securities into which the money has been converted in the regular course of a banking business. And in general, an exemption of capital stock, without more, may, with great propriety, be considered, under ordinary circumstances, as exempting that which, in the legitimate operations of the corporation, comes to represent the capital. But in this case, while the capital stock is for ever exempt, the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation, is exempt for only twenty years after the completion of the road. Clearly, under such circumstances, it could not have been understood that the enumerated property was to represent the capital for the purposes of taxation. Exemptions are never to be presumed. On the contrary, the presumptions are always against them. The exemption of the property for twenty years only is equivalent to an express power to tax after that time. It is said, however, that both provisions of the statute can stand, — that which exempts the capital and that which taxes the tangible property, — if the part of the property which represents the capital is exempted, and that which represents the bonded debt is taxed; but we certainly have no clear manifestation of any such intention by the legislature. It is as distinctly stated that the road and all its fixtures, &c., are to be taxed as that the capital is to be exempt. While the company had power to borrow money on mortgage, it is very clear from the provisions of the charter it was expected the road might be completed with capital alone. Sect. 17, in which the power to mortgage is given, is as follows: The said company may at any time increase its capital stock to a sum sufficient to complete the road and stock it with every thing necessary to give it full operation and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company and on mortgage of its charter and works; and the manner in which the same shall be done, in either case, shall be prescribed by the stockholders at a general meeting... . Under these circumstances, it cannot for a moment be doubted that if the legislature had supposed a different rule of taxation was to be applied if the road was built with borrowed money, from what should be if it was built from stock, some mention would have been made of it, and some means provided for determining what was exempt as representing stock, and what taxable as representing debt. Then again, suppose the debt paid off, either by the issue of new stock or the earnings of the road, would the property then be exempt as capital, or taxable because originally built with borrowed money? Without pursuing this subject further, it is sufficient to say that we are clearly of the opinion that the road, with all its fixtures, &c., was taxable under the original charter after March 28, 1877, and that, whatever else was exempted as capital stock, this was not. 2. As to the effect of the acceptance of the eleventh section of the act of 1875, and the payment of taxes thereunder for the years 1875 and 1876. The claim on the part of the company is, that by the acceptance of this section as an amendment to its charter, a valid contract was entered into between the State and the corporation, regulating the taxation of the company until the year 1885. It is said that the release by the company of the perpetual exemption of its capital stock, and of the exemption of its property until 1877, which were granted by the original charter, was a sufficient consideration for an agreement, on the part of the State, not to tax the company otherwise than according to the accepted eleventh section for ten years, and that a law which provides for taxation in a different manner impairs the obligation of that contract. The decision of the Supreme Court of the State declaring this section to be invalid, so far as it relates to companies not claiming to be exempt from taxation under their charters, because it does not conform to the constitutional requirement of uniformity, is binding upon us as a construction of a State statute by the highest court of the State. While we are not bound by the decision in the present case, that the section is also invalid as to this company after the expiration of the time to which the exemption of its property was limited by its charter (Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Company, 1 Wall. 116), the decision ought not to be overruled, unless it is clearly wrong. The delicate power which we have, under the Constitution of the United States, over the judgments of the State courts, ought always to be used with the greatest caution. There should be no reversal of such judgments, unless the error is manifest. The Constitution of Tennessee adopted in 1870 requires that all property shall be taxed. After that Constitution went into effect, no valid contract could be made with a corporation for an exemption from taxation. So the courts of Tennessee have held, and in so doing have established a rule of decision for us. The property of this company was only exempt by its charter until March 28, 1877. The Constitution did not and could not interfere with this exemption so long as it lasted. This the Supreme Court of the State decided. To that extent the claim of the company was sustained. If nothing had been done until the charter exemption expired, it is clear that, under the construction which the courts of the State have given the Constitution, no contract for the taxation of the company according to the provisions of the eleventh section of the act of 1875 could have been sustained. The only question, therefore, which remains, is, whether in 1875 the legislature could contract for the surrender of the remaining charter exemptions by binding the State not to tax the company for ten years in any other manner than that provided for in sect. 11. The Constitution has subjected all property in the State to the burden of uniform taxation according to its value. So the courts of the State have decided. The legislature has no power to contract for relief from this burden. It could not do it for a money consideration, and if not for that, clearly not for any other. This is one of the disabilities under which the people of the State have placed their government. But for it taxes might have been commuted or they might have been withheld. There is no doubt of the power of the legislature to contract with the company for a surrender of its charter exemptions in a way that did not involve a release from the constitutional mode of taxation after the charter exemption had expired. Such a release is, however, as we think, prohibited by the Constitution, as construed by the highest judicial authority in the State. This disposes of the case so far as the Memphis and Charleston company is concerned. It is not contended that the act of 1875, as amended in 1877, transcends the power of taxation allowed by the charter after the exemption of the road and its appurtenances has expired, unless they are protected by the exemption of the capital stock. The Supreme Court of the State enjoined all taxation prior to March 28, 1877, and decreed that the money paid under the provisions of the eleventh section of the act of 1875 should be allowed as a credit upon the taxes of 1877 and 1878, and the excess, if any, refunded with interest. This, as we think, is all the company can require.",the memphis and charleston railroad company.
+347,89840,2,1,"Under this branch of the case the company claims that the exemption of the capital stock from taxation is equivalent to an exemption of the property purchased with or represented by the capital, and there are undoubtedly many cases to be found in this and other courts where it has been held that an exemption of the capital stock of a corporation from taxation was equivalent to an exemption of the property into which the capital had been converted. But in all these cases we think it will be found that the question turned upon the effect to be given the term capital, or capital stock, as used in the particular charter under consideration, and that when the property has been exempted by reason of the exemption of the capital, it has been because, taking the whole charter together, it was apparent that the legislature so intended. Thus the capital stock of a bank usually consists of money paid in to be used in banking, and an exemption of such capital stock from taxation must almost necessarily mean an exemption of the securities into which the money has been converted in the regular course of a banking business. And in general, an exemption of capital stock, without more, may, with great propriety, be considered, under ordinary circumstances, as exempting that which, in the legitimate operations of the corporation, comes to represent the capital. But in this case, while the capital stock is for ever exempt, the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation, is exempt for only twenty years after the completion of the road. Clearly, under such circumstances, it could not have been understood that the enumerated property was to represent the capital for the purposes of taxation. Exemptions are never to be presumed. On the contrary, the presumptions are always against them. The exemption of the property for twenty years only is equivalent to an express power to tax after that time. It is said, however, that both provisions of the statute can stand, — that which exempts the capital and that which taxes the tangible property, — if the part of the property which represents the capital is exempted, and that which represents the bonded debt is taxed; but we certainly have no clear manifestation of any such intention by the legislature. It is as distinctly stated that the road and all its fixtures, &c., are to be taxed as that the capital is to be exempt. While the company had power to borrow money on mortgage, it is very clear from the provisions of the charter it was expected the road might be completed with capital alone. Sect. 17, in which the power to mortgage is given, is as follows: The said company may at any time increase its capital stock to a sum sufficient to complete the road and stock it with every thing necessary to give it full operation and effect, either by opening books for new stock, or by selling such new stock, or by borrowing money on the credit of the company and on mortgage of its charter and works; and the manner in which the same shall be done, in either case, shall be prescribed by the stockholders at a general meeting... . Under these circumstances, it cannot for a moment be doubted that if the legislature had supposed a different rule of taxation was to be applied if the road was built with borrowed money, from what should be if it was built from stock, some mention would have been made of it, and some means provided for determining what was exempt as representing stock, and what taxable as representing debt. Then again, suppose the debt paid off, either by the issue of new stock or the earnings of the road, would the property then be exempt as capital, or taxable because originally built with borrowed money? Without pursuing this subject further, it is sufficient to say that we are clearly of the opinion that the road, with all its fixtures, &c., was taxable under the original charter after March 28, 1877, and that, whatever else was exempted as capital stock, this was not. 2. As to the effect of the acceptance of the eleventh section of the act of 1875, and the payment of taxes thereunder for the years 1875 and 1876. The claim on the part of the company is, that by the acceptance of this section as an amendment to its charter, a valid contract was entered into between the State and the corporation, regulating the taxation of the company until the year 1885. It is said that the release by the company of the perpetual exemption of its capital stock, and of the exemption of its property until 1877, which were granted by the original charter, was a sufficient consideration for an agreement, on the part of the State, not to tax the company otherwise than according to the accepted eleventh section for ten years, and that a law which provides for taxation in a different manner impairs the obligation of that contract. The decision of the Supreme Court of the State declaring this section to be invalid, so far as it relates to companies not claiming to be exempt from taxation under their charters, because it does not conform to the constitutional requirement of uniformity, is binding upon us as a construction of a State statute by the highest court of the State. While we are not bound by the decision in the present case, that the section is also invalid as to this company after the expiration of the time to which the exemption of its property was limited by its charter (Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Company, 1 Wall. 116), the decision ought not to be overruled, unless it is clearly wrong. The delicate power which we have, under the Constitution of the United States, over the judgments of the State courts, ought always to be used with the greatest caution. There should be no reversal of such judgments, unless the error is manifest. The Constitution of Tennessee adopted in 1870 requires that all property shall be taxed. After that Constitution went into effect, no valid contract could be made with a corporation for an exemption from taxation. So the courts of Tennessee have held, and in so doing have established a rule of decision for us. The property of this company was only exempt by its charter until March 28, 1877. The Constitution did not and could not interfere with this exemption so long as it lasted. This the Supreme Court of the State decided. To that extent the claim of the company was sustained. If nothing had been done until the charter exemption expired, it is clear that, under the construction which the courts of the State have given the Constitution, no contract for the taxation of the company according to the provisions of the eleventh section of the act of 1875 could have been sustained. The only question, therefore, which remains, is, whether in 1875 the legislature could contract for the surrender of the remaining charter exemptions by binding the State not to tax the company for ten years in any other manner than that provided for in sect. 11. The Constitution has subjected all property in the State to the burden of uniform taxation according to its value. So the courts of the State have decided. The legislature has no power to contract for relief from this burden. It could not do it for a money consideration, and if not for that, clearly not for any other. This is one of the disabilities under which the people of the State have placed their government. But for it taxes might have been commuted or they might have been withheld. There is no doubt of the power of the legislature to contract with the company for a surrender of its charter exemptions in a way that did not involve a release from the constitutional mode of taxation after the charter exemption had expired. Such a release is, however, as we think, prohibited by the Constitution, as construed by the highest judicial authority in the State. This disposes of the case so far as the Memphis and Charleston company is concerned. It is not contended that the act of 1875, as amended in 1877, transcends the power of taxation allowed by the charter after the exemption of the road and its appurtenances has expired, unless they are protected by the exemption of the capital stock. The Supreme Court of the State enjoined all taxation prior to March 28, 1877, and decreed that the money paid under the provisions of the eleventh section of the act of 1875 should be allowed as a credit upon the taxes of 1877 and 1878, and the excess, if any, refunded with interest. This, as we think, is all the company can require.",As to the extent of the exemption contained in the original charter.
+348,89840,1,2,"As to this company, the court decided that it was exempt from taxation under its charter until April 22, 1886, and enjoined the assessment and collection of taxes under the laws of 1875 and 1877 until that date. The further provision of the charter in respect to taxation so as to reduce dividends below eight per cent was not passed upon below, and was not involved in the decision as made. For this reason it cannot be considered by us.",the mobile and ohio railroad company.
+349,118309,2,1,"[Y]ou the jury, by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without the possibility of release, or sentenced to some other lesser sentence. . . . . . . . . If you recommend that some other lesser sentence be imposed, the court is required to impose a sentence that is authorized by the law. In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence or a sentence of life without the possibility of release. That is a matter for the court to decide in the event you conclude that a sentence of death or life without the possibility of release should not be recommended. . . . . . In order to bring back a verdict recommending the punishment of death or life without the possibility of release, all twelve of you must unanimously vote in favor of such specific penalty. App. 43-45. Those instructions misinformed the jury in two intertwined respects: First, they wrongly identified a lesser sentence option; [14] second, the instructions were open to the reading that, absent juror unanimity on death or life without release, the District Court could impose a lesser sentence. The Fifth Circuit, and the United States in its submission to this Court, acknowledged the charge error. See 132 F. 3d, at 248; ante, at 387, n. 8. Section 1201, which defines the crime, governs. It calls for death or life imprisonment, nothing less, and neither parole nor good-time credits could reduce the life sentence. See Brief for United States 13-14, n. 2 ([W]e agree with petitioner that the only sentences that could have been imposed are death and life without release (because the kidnapping statute, 18 U. S. C. [§ ]1201, authorizes only death and life imprisonment, and neither parole nor good-time credits could reduce the life sentence).). The third option listed in the FDPA provision, some other lesser sentence, § 3593(e), is available only when the substantive statute does not confine the sentence to life or death. The Fifth Circuit found the error not so obvious, clear, readily apparent, or conspicuous. 132 F. 3d, at 248. I disagree and would rank the District Court's misconstruction plain error, [15] because the FDPA unquestionably is a procedural statute that does not alter substantive prescriptions. [16] No serious doubt should have existed on that score. [17] The flawed charge did not simply include a nonexistent option. It could have been understood to convey that, absent juror unanimity, some lesser sentence might be imposed by the court. That message came from instructions that the jury must be unanimous to bring back a verdict recommending the punishment of death or life without the possibility of release, App. 45, that some other lesser sentence was possible, id., at 44, and that the jury should not be concerned with the . . . sentence the defendant might receive in the event [it] determine[d] not to recommend a death sentence or a sentence of life without the possibility of release, ibid. Jones's proposed instructions—that he would be sentenced to life without possibility of release if the jury did not agree on death, see supra, at 409, and nn. 9, 10—should have made it apparent that he sought to close the door the flawed charge left open. [18] There is, at least, a reasonable likelihood that the flawed charge tainted the jury deliberations. See Boyde v. California, 494 U. S. 370, 380 (1990) (where [t]he claim is that the instruction is . . . subject to an erroneous interpretation, the proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction erroneously). As recently noted, a jury may be swayed toward death if it believes the defendant otherwise may serve less than life in prison. See Simmons v. South Carolina, 512 U. S. 154, 163 (1994) (plurality opinion) ([I]t is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not.). Jurors may have been persuaded to switch from life to death to ward off what no juror wanted, i. e., any chance of a lesser sentence by the judge. [19] The Court, in common with the Fifth Circuit and the Solicitor General, insists it was just as likely that jurors not supporting death could have persuaded death-prone jurors to give way and vote for a life sentence. See ante, at 394; 132 F. 3d, at 246; Brief for United States 22. I would demur (say so what) to that position. It should suffice that the potential to confuse existed, i. e., that the instructions could have tilted the jury toward death. The instructions introduce[d] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case. Beck v. Alabama, 447 U. S. 625, 643 (1980). Capital sentencing should not be . . . a game of `chicken,' in which life or death turns on the . . . happenstance of whether the particular `life' jurors or `death' jurors in each case will be the first to give in, in order to avoid a perceived third sentencing outcome unacceptable to either set of jurors. Reply Brief 7-8, n. 11.",The District Court instructed the jury:
+350,106990,1,1,"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [1] We begin our analysis of this constitutional rule mindful of the fact that in this case a search was made pursuant to a search warrant. In discussing the Fourth Amendment policy against unnecessary invasions of privacy, we stated in Aguilar v. Texas, 378 U. S. 108: An evaluation of the constitutionality of a search warrant should begin with the rule that `the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.' United States v. Lefkowitz, 285 U. S. 452, 464. The reasons for this rule go to the foundations of the Fourth Amendment. 378 U. S., at 110-111. In Jones v. United States, 362 U. S. 257, 270, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U. S. 10, and Chapman v. United States, 365 U. S. 610, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained. Mr. Justice Jackson stated for the Court in Johnson: The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Johnson v. United States, supra, at 13-14. The fact that exceptions to the requirement that searches and seizures be undertaken only after obtaining a warrant are limited [2] underscores the preference accorded police action taken under a warrant as against searches and seizures without one. While a warrant may issue only upon a finding of probable cause, this Court has long held that the term `probable cause' . . . means less than evidence which would justify condemnation, Locke v. United States, 7 Cranch 339, 348, and that a finding of probable cause may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U. S. 307, 311. As the Court stated in Brinegar v. United States, 338 U. S. 160, 173, There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them. Thus hearsay may be the basis for issuance of the warrant so long as there [is] a substantial basis for crediting the hearsay. Jones v. United States, supra, at 272. And, in Aguilar we recognized that an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusions and his belief that any informant involved whose identity need not be disclosed . . . was `credible' or his information `reliable.'  Aguilar v. Texas, supra, at 114. These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based. See Aguilar v. Texas, supra . Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, at 270.",The Fourth Amendment states:
+351,108152,2,1,"Any discussion of the scope of this Court's authority under the Constitution must take as its point of departure Marbury v. Madison, 1 Cranch 137 (1803), where the Court held that except in those instances specifically enumerated in Article III of the Constitution, [2] this Court may exercise only appellate—not original—jurisdiction. Because this suit is not cognizable as an original cause, the question initially to be faced is whether it is within our appellate jurisdiction. The Court was asked in Marbury to issue a writ of mandamus to compel the Secretary of State to deliver to an appointed justice of the peace his previously signed commission. After noting that the suit did not fall within any of the enumerated heads of original jurisdiction, the Court, through Chief Justice Marshall, concluded: To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable [the Court] to exercise appellate jurisdiction. Id., at 175. The Court held that issuance of mandamus to a nonjudicial federal officer would not be an exercise of appellate, but of original, jurisdiction. Thus the statute that purported to authorize such action by the Supreme Court was ineffective. See 2 J. Story, Commentaries on the Constitution of the United States § 1761 (5th ed. 1891). The Chief Justice stated, as the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. 1 Cranch, at 175. Beyond cavil, the issuance of a writ of mandamus to an inferior court is an exercise of appellate jurisdiction. In re Winn, 213 U. S. 458, 465-466 (1909). If the challenged orders of the Judicial Council in this instance were an exercise of judicial power, this Court is constitutionally vested with jurisdiction to review them, absent any statute curtailing such review. Williams v. United States, 289 U. S. 553, 566 (1933); Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 723 (1929); In re Sanborn, 148 U. S. 222, 224 (1893). On the other hand, if they were not, Marbury alone is sufficient authority to support a conclusion that this suit is beyond this Court's power under Article III. An analysis of the nature of the Council's orders must begin with consideration of the statute by which the Council was created. The Judicial Councils of the circuits were brought into being by the Act of August 7, 1939, which was termed An act to provide for the administration of the United States courts, and for other purposes. 53 Stat. 1223. The major purposes of the Act were to free the federal courts from their previous reliance on the Justice Department in budgetary matters, and to furnish to the Federal courts the administrative machinery for self-improvement, through which those courts will be able to scrutinize their own work and develop efficiency and promptness in their administration of justice. H. R. Rep. No. 702, 76th Cong., 1st Sess., 2 (1939). To this end the Act established the Administrative Office of the United States Courts, headed by a Director, to compile statistical data on the operation of the courts and to provide support services of a logistical nature. [3] The Act further established two new entities in each of the judicial circuits: the Judicial Council, composed of all the active circuit judges, and the Judicial Conference, composed of circuit and district judges along with participating members of the bar. The Council, in regular meetings, was to consider the reports of the Director and take such action . . . thereon as might be necessary; [4] the Conference was to meet annually for the purpose of considering the state of the business of the courts and advising ways and means of improving the administration of justice within the circuit. [5] As these statutory provisions indicate, Congress envisioned quite different functions for the three new bodies. The role of the Administrative Office, and its Director, was to be administrative in the narrowest sense of that term. The Director was entrusted with no authority over the performance of judicial business—his role with respect to such business was, and is, merely to collect information for use by the courts themselves. Chief Justice Groner of the Court of Appeals for the District of Columbia, who was chairman of the committee of circuit judges that participated in drafting the bill, stressed to the Senate Committee on the Judiciary that the bill would give the Director no supervision or control over the exercise of purely judicial duties, because to grant such power to an administrative officer would be to destroy the very fundamentals of our theory of government. The administrative officer [the Director] proposed in this bill is purely an administrative officer. Hearings on S. 188 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess., 12 (1939) (response to question by Senator Hatch). See also id., at 36 (statement of A. Holtzoff). The Judicial Conference for each circuit was given a complementary role, again divorced from direct involvement in the disposition by the courts of their judicial business. Patterned in large part after the voluntary conferences that had been held for years in the Fourth Circuit, the Conference was intended to provide an opportunity for friendly interchange among judges and between bench and bar, out of which might grow increased understanding of problems of judicial administration and enhanced cooperation toward their solution. Its function, as indicated by the statutory language quoted above, was to be purely advisory. See Hearings on H. R. 5999 before the House Committee on the Judiciary, 76th Cong., 1st Sess., 11-12, 17, 23-24 (1939). The Judicial Council, on the other hand, was designed as an actual participant in the management of the judicial work of the circuit. The Act provided that, [t]o the end that the work of the district courts shall be effectively and expeditiously transacted, the circuit judges of each circuit were to meet as a council at least twice a year. After consideration of the statistical reports submitted by the Administrative Office, such action shall be taken thereon by the council as may be necessary. It shall be the duty of the district judges promptly to carry out the directions of the council as to the administration of the business of their respective courts. [6] This provision exists today as § 332 without relevant change, except that the 1948 revision of the Judicial Code added a declaration that [e]ach judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit, and correspondingly directed the district judges to carry out all such orders. The reviser's note explained this amendment as merely a change in phraseology, embodying in new words the original understanding of the powers of the councils. H. R. Rep. No. 308, 80th Cong., 1st Sess., A46 (1947). The most helpful guide in determining the role envisaged for the Judicial Councils is the testimony of Chief Justice Groner, who shouldered most of the task of explaining the purposes of the bill to the committees of both Houses of Congress. He explained that under existing law the circuit judges had no authority to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism, . . . for which he may be responsible. Hearings on S. 188, supra, at 11. In contrast, under the proposed bill the Administrative Office would observe and see that whatever is wrong in the administration of justice, from whatever sources it may arise, is brought to the attention of the judicial council that it may be corrected, by the courts themselves. Id., at 12-13. As examples of the kinds of action a Judicial Council might be expected to take under the proposed bill, Chief Justice Groner suggested that if the statistics showed a particular district court to be falling behind in its work, the Council would see to it, either that the particular judge who is behind in his work catches up with his work, or that assistance is given to him whereby the work may be made current. Id., at 11. If it appeared that a particular judge had been sick for 4 or 5 months and had been unable to hold any court, or had been unable, by reason of one thing or another, to transact any business, . . . immediate action could be taken to correct that situation. Hearings on H. R. 5999, supra, at 11. Asked by Representative Walter Chandler what power is given there to require a judge to decide a case that he has had under advisement for months and years, he responded that the Council, after considering the matter, could issue directions that would be final. Id., at 13. Any lazy judge's work would be reported to the council, [which] would take the correct action. Id., at 27. [7] Judge Parker stated his view that what we have done is this, up to this point: We have given to the Circuit Court of Appeals supervisory power over the decisions of the district judges, but we have given them no power whatever over administration by the district judges. If Judge Jones decides a case contrary to the views of the majority of the Circuit Court of Appeals, we can tell him so and reverse him. But if he holds a case under advisement for 2 years, instead of deciding it promptly, there is nothing that we are authorized by the law to do about it in the absence of an application for mandamus. Now, this [bill] authorizes us to do something about it; and I agree with you that something ought to be done about it. Id., at 21. In place of the inadequate extraordinary remedy of mandamus, which could correct only the extreme abuse in a particular case, the circuit judges, sitting as the Judicial Council, were given the authority for continuous supervision of the flow of work through the district courts. In short, the proposed Judicial Council was intended to fill the hiatus of authority that existed under the then-current arrangements, whereby the Attorney General collected data about the operation of the courts but had no power to take corrective action, except, perhaps, as a result of the moral suasion of his office. The proposed bill would allow compilation of more complete information, and would provide a method, a legitimate, valid, legal method, by which, if necessary, and when necessary, the courts may clean their own house; it would give a body, in which the authority is firmly lodged, the power to do that and to do it expeditiously. Id., at 8. See generally Report on the Powers and Responsibilities of the Judicial Councils, H. R. Doc. No. 201, 87th Cong., 1st Sess. (1961); Fish, The Circuit Councils: Rusty Hinges of Federal Judicial Administration, 37 U. Chi. L. Rev. 203 (1970). This legislative history lends support to a conclusion that, at least in the issuance of orders to district judges to regulate the exercise of their official duties, the Judicial Council acts as a judicial tribunal for purposes of this Court's appellate jurisdiction under Article III. It seems clear that the sponsors of the bill considered the power to give such orders something that could not be entrusted to any purely administrative agency— not even to the Administrative Office, which was to be an arm of the judicial branch of government and under the direct control of the Supreme Court and the Judicial Conference of the United States. Chief Justice Groner, in the passage quoted above, stated that to give such power to an administrative agency would be to destroy the very fundamentals of our theory of government. Instead, any problems unearthed by the Director's studies were to be corrected, by the courts themselves. Hearings on S. 188, supra, at 12-13. See also Hearings on H. R. 5999, supra, at 8. There were further references throughout the hearings and committee reports to the fact that the corrective power would be exercised by the courts themselves. E. g., Hearings on S. 188, supra, at 16 (statement of A. Vanderbilt); id., at 31-32 (statement of Hon. Harold M. Stephens); id., at 36 (statement of A. Holtzoff); H. R. Rep. No. 702, 76th Cong., 1st Sess., 4 (1939). The House report quoted with approval an endorsement of the bill by the American Judicature Society, stating that there is no way to fortify judicial independence equal to that of enabling the judges to perform their work under judicial supervision. Ibid. These statements indicate that the power to direct trial judges in the execution of their decision-making duties was regarded as a judicial power, one to be entrusted only to a judicial body. In this regard it is important to note that an earlier draft of the 1939 Act would have given responsibility for supervising the lower courts to the Supreme Court and the Chief Justice of the United States. The idea of devolving the authority to councils at the circuit level was suggested by Chief Justice Hughes, who believed that the supervision could be made most effective by concentration of responsibility in the various circuits . . . with power and authority to make the supervision all that is necessary to induce competence in the work of all of the judges of the various districts within the circuit. H. R. Doc. No. 201, supra, at 3. It is equally notable that, while the draftsmen did consider giving district judges some representation on the Councils, see id., at 4-5, there was apparently no thought given to including nonjudicial officers. These indications leave no doubt that the Councils' architects regarded the authority granted the Councils as closely bound up with the process of judging itself. [8] Because the legislative history shows Congress intended the Councils to act as judicial bodies in supervising the district judges, there is no need to decide whether placement of this authority in a nonjudicial body would violate the constitutional separation of powers, as Chief Justice Groner seems to have believed. It is sufficient to conclude from reason and analogy that this responsibility is of such a nature that it may be placed in the hands of Article III judges to be exercised as a judicial function. An order by the Council to a district judge, directing his handling of one or many cases in his court, is an integral step in the progress of those cases from initial filing to final adjudication. Like the district judge's own orders setting a time for discovery or trial, or transferring a case to another district pursuant to 28 U. S. C. § 1404 (a), such an order, even though concerned with a matter of judicial administration, is part of the official conduct of judicial business. Unlike the more common orders of the district court, the Council's orders involve supervision of a subordinate judicial officer. But in this regard they are not unlike the extraordinary writ of mandamus, which Judge Parker thought the Council's orders would supplement, or the orders entered by courts in proceedings for disbarment of an attorney. In short, the function of the Council in ordering the district judges to take certain measures related to the cases before them is, as the legislative history indicates Congress understood, judicial in nature. [9] To support a contrary conclusion, respondent points to the language of Justice Holmes in Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226 (1908), defining a judicial inquiry as one that investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, as contrasted to legislation, which looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The Court in Prentis held that a ratemaking proceeding in the Virginia State Corporation Commission was legislative in character, despite the fact that the Commission was assumed to function as a court in performing other duties. Similarly, in United States v. Ferreira, 13 How. 40 (1852), this Court concluded that the act of a district judge in passing on claims under a treaty, subject to approval by the Secretary of the Treasury, was not a judicial one; the Court held that Congress, in giving this authority to judges, referred to them by their office merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. Id., at 47. See also Gordon v. United States, 2 Wall. 561 (1865); In re Metzger, 5 How. 176 (1847); Hayburn's Case, 2 Dall. 409 (1792). Respondent argues that the functions of the Judicial Council under § 332 are, under Justice Holmes' definitions, legislative, or administrative, rather than judicial; and that the statutory provision making the membership of the Council coextensive with that of the Court of Appeals for each circuit [10] is merely a means of designating the individual members by reference to their office. Certainly respondent is correct in urging that Congress' designation of circuit judges as the members of the Council does not in itself make the Council's function judicial. I think, however, that the Council's orders directing the official business of the district courts are judicial within the general definition of that term in Prentis. In urging that the Council's function merely looks to the future and changes existing conditions by making a new rule, respondent disregards the fact that each of the Council's orders, such as those challenged here, is rooted in the factual circumstances of the business of a particular judge or judges and the status of a particular case or cases in the district court; and each order, if properly entered, extends only as far as the circumstances that make it necessary . . . for the effective and expeditious administration of the business of the courts. 28 U. S. C. § 332. As noted above, the Council's orders for the handling of cases in the district court serve as one step in the progress of those cases toward judgment. Those orders can be expected to apply commonly accepted notions of proper judicial administration to the special factual situations of particular cases or particular judges. As respondent points out, the power entrusted to the Councils by § 332, like those added by later enactments, see infra, at 109-110, necessarily involves a large amount of discretion; accordingly, review of the Councils' actions will usually be narrow in scope. But this does not mean that the Councils are left at large as planning agencies. United States v. First City National Bank, 386 U. S. 361, 369 (1967). In First City National Bank, we were faced with a federal statute directing the courts to determine whether the anticompetitive effect of a proposed bank merger was outweighed by considerations of community convenience and need. We ruled that the courts could accept this as a judicial task because, like the rule of reason, long prevalent in the antitrust field, the effect-on-competition standard was a familiar one within the area of judicial competence. See also United Steelworkers v. United States, 361 U. S. 39 (1959). Judicial administration is a matter in which the courts even more clearly should have special competence. Within the framework of the statutes establishing the inferior federal courts and defining their jurisdiction, the Judicial Councils are charged with the duty to take such actions as are necessary for the expedition of the business of the courts in each circuit. Their discretion in this matter, while broad, does not seem to be of a different order from that possessed by district judges with respect to many matters of trial administration. In both instances, review can correct legal error or abuse of discretion where it occurs; that the scope of review will often be very narrow does not in itself establish that the exercise of such discretion is a nonjudicial act. [11] Respondent makes a further argument to avert a conclusion that the actions here drawn in question were judicial actions. It points out that Congress since 1939 has given the Judicial Councils many specific powers— powers that respondent considers so clearly nonjudicial as to negate any inference that the Council serves as a judicial body within the purview of Article III. Those powers include the power to order a district judge, where circumstances require, to reside in a particular part of the district for which he is appointed, 28 U. S. C. § 134 (c); to make any necessary orders if the district judges in any district are unable to agree upon the division of business among them, 28 U. S. C. § 137; to consent to the pretermission of any regular session of a District Court for insufficient business or other good cause, 28 U. S. C. § 140 (a); to approve as necessary the provision of judicial accommodations for the courts by the General Services Administration, 28 U. S. C. § 142; to consent to the designation and assignment of circuit or district judges to sit on courts other than those for which they are appointed, 28 U. S. C. § 295; to certify to the President that a circuit or district judge is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability, thus authorizing the President to appoint an additional judge, 28 U. S. C. § 372 (b); to direct where the records of the courts of appeals and district courts shall be kept, 28 U. S. C. § 457; to approve plans for furnishing representation for defendants under the Criminal Justice Act, 18 U. S. C. § 3006A (a); and to take various actions in regard to referees in bankruptcy, including removal of a referee for cause, 11 U. S. C. §§ 62 (b), 65 (a), (b), 68 (a), (b), (c), 71 (b), (c). While many of these powers are trivial in comparison with the courts' basic responsibility for final adjudication of lawsuits, I am not persuaded that their possession is inconsistent with a conclusion that the Council, when performing its central responsibilities under 28 U. S. C. § 332, exercises judicial power granted under Article III. Cf. Glidden Co. v. Zdanok, 370 U. S. 530, 580-582 (1962) (opinion of HARLAN, J.). In the first place, the respondent concedes that at least one of these enumerated powers—the power to remove referees for cause—can properly be regarded as judicial, and it is not at all clear that any of them is beyond the range of the permissible activities of an Article III court. In Textile Mills Corp. v. Commissioner, 314 U. S. 326, 332 (1941), the Court noted the range of relatively minor responsibilities, other than the hearing of appeals, placed by statute in the courts of appeals. These included prescribing the form of writs and other process and the form and style of the courts' seals; making rules and regulations; appointing a clerk and approving the appointment and removal of deputy clerks; and fixing the times when court should be held. Each of these functions was to be performed by the court. While it is possible that the performance of some of them might never produce a case or controversy reviewable in this Court, they are reasonably ancillary to the primary, dispute-deciding function of the courts of appeals. Just as the Court in Textile Mills did not question the authority of Congress to grant such incidental powers to the courts of appeals, I see little reason to believe that any of the various supervisory tasks entrusted to the Judicial Council is beyond the capacities of a judicial body under Article III. In the second place, my conclusion about the nature of the Council's primary function under § 332 would stand even if it were determined that one or more of the Council's assorted incidental powers were incapable of being exercised by an Article III court. If I am correct in concluding that Congress' purpose in 1939 in creating the Judicial Councils was to vest in them, as an arm of the Article III judiciary, supervisory powers over the disposition of business in the district courts, that purpose is not undone by a subsequent congressional attempt to give them a minor nonjudicial task; it would be perverse to make the status of [the Councils] turn upon so minuscule a portion of their purported functions. Glidden Co. v. Zdanok, 370 U. S., at 583.",constitutional jurisdiction
+352,108152,2,2,"This Court does not, of course, necessarily possess all of the appellate jurisdiction permitted to it by Article III. That article provides that our appellate jurisdiction is to be exercised with such Exceptions, and under such Regulations as the Congress shall make, and this language has been held to give Congress the power, within limits, to prescribe the instances in which it may be exercised. E. g., Ex parte McCardle, 7 Wall. 506, 512-513 (1869). I turn, therefore, to the Judicial Code to determine our statutory authority to consider Judge Chandler's petition. Congress in the Code has not spoken, one way or the other, regarding review of the orders of Judicial Councils. Petitioner asserts that the Court has power to issue mandamus or prohibition to the Councils under the All Writs Act, 28 U. S. C. § 1651 (a), which provides that [t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. This statute has been construed to empower this Court to issue an extraordinary writ to a lower federal court in a case falling within our statutory appellate jurisdiction, where the issuance of the writ will further the exercise of that jurisdiction. See, e. g., De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945); United States Alkali Export Assn. v. United States, 325 U. S. 196, 201-204 (1945). It is now settled that the case need not be already pending in this Court before an extraordinary writ may be issued under § 1651 (a); rather, the Court may issue the writ when the lower court's action might defeat or frustrate this Court's eventual jurisdiction, even where that jurisdiction could be invoked on the merits only after proceedings in an intermediate court. See, e. g., De Beers Consolidated Mines, Ltd. v. United States, 325 U. S., at 217; Ex parte Peru, 318 U. S. 578 (1943); Ex parte United States, 287 U. S. 241, 248-249 (1932); McClellan v. Carland, 217 U. S. 268 (1910); cf. FTC v. Dean Foods Co., 384 U. S. 597 (1966); Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943). But cf. In re Glaser, 198 U. S. 171, 173 (1905); In re Massachusetts, 197 U. S. 482, 488 (1905). Each of the prior cases in which this Court has invoked § 1651 (a) to issue a writ in aid of [its jurisdiction] has involved a particular lawsuit over which the Court would have statutory review jurisdiction at a later stage. By contrast, petitioner's reliance on this statute is bottomed on the fact that the action of the Judicial Council touches, through Judge Chandler's fate, hundreds of cases over which this Court has appellate or review jurisdiction. Petition for Writ of Prohibition and/or Mandamus 13. He argues that the Council's orders, allocating to other judges in his district cases that would otherwise be decided by him, constitute a usurpation of power that cannot adequately be remedied on final review of those cases by certiorari or appeal in this Court. The United States as amicus curiae agrees that this claim properly invokes the Court's power to consider whether mandamus or prohibition should be granted. [12] Although this expansive use of § 1651 (a) has no direct precedent in this Court, it seems to me wholly in line with the history of that statute and consistent with the manner in which it has been interpreted both here and in the lower courts. Chief Justice Stone, writing for the Court in Ex parte Peru, 318 U. S., at 583, characterized the historic use of writs of prohibition and mandamus directed by an appellate to an inferior court as that of confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so. The bounds of this Court's discretionary power to issue such writs were further stated in Parr v. United States, 351 U. S. 513, 520-521 (1956): The power to issue them is discretionary and it is sparingly exercised. . . . This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Assn., 319 U. S. 21, 26, nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U. S. 9, 29-30. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Assn., supra, at p. 30. [13] In Parr, the petitioner's claim was simply that a district court had erred in dismissing an indictment at the Government's request after the Government had obtained a new indictment for the same offenses in another district. In contrast, the present case involves a claim that the Council's orders were entered in a matter entirely beyond its jurisdiction. Judge Chandler claims that the order of December 13, 1965, depriving him of both pending and future cases, was tantamount to his removal from office, and that such an act far exceeded the limited jurisdiction over administrative matters conferred on the Council by § 332. He further asserts, as noted in Part I, supra, that the order of February 4, 1966, exceeded the Council's jurisdiction under either § 332 or § 137. Such grave charges clearly go beyond a mere claim that the Council has erred in ruling on matters within [its] jurisdiction. Cf. Will v. United States, 389 U. S. 90, 95-96, 98 and n. 6 (1967); Schlagenhauf v. Holder, 379 U. S. 104 (1964). Further, there seems to be no means by which Judge Chandler's challenge to the orders could be aired adequately on review of the cases to which they pertain. While the losing party in a case assigned to another district judge might conceivably argue on appeal that he is entitled to reversal because his case should have been heard by Judge Chandler, such an argument would encounter formidable obstacles. A reviewing court would have no way of determining whether a particular case filed in the District Court after the February 4 Order would, but for that order, have been assigned to Judge Chandler; nor is it clear that the error, if detectable, would in itself entitle the losing party to invalidate proceedings had before another judge. More basically, Judge Chandler is asserting an injury to himself, apart from any injuries to the parties in those cases; the parties cannot be relied upon to seek vindication of that injury. Cf. Ex parte Fahey, 332 U. S. 258, 260 (1947); Ex parte Harding, 219 U. S. 363, 372-380 (1911). It is difficult to see how the very multiplicity of the cases affected by the Council's orders could derogate from this Court's authority under § 1651 (a) to issue an extraordinary writ in aid of its appellate jurisdiction over them. A somewhat analogous multiplicity was found to militate in favor of the issuance of mandamus in McCullough v. Cosgrave, 309 U. S. 634 (1940), and in Los Angeles Brush Corp. v. James, 272 U. S. 701 (1927). As later explained by MR. JUSTICE BRENNAN, dissenting in La Buy v. Howes Leather Co., 352 U. S. 249, 266 (1957),  Los Angeles Brush Corp. was a case where a reference [to a master] was made, not because a district judge decided that the particular circumstances of the particular case required a reference, but pursuant to an agreement among all the judges of that District Court always to appoint masters to hear patent cases regardless of the circumstances of particular cases. Mandamus was therefore issued in Los Angeles Brush Corp., and in McCullough, which involved a similar situation in the same District Court, in order to remedy a pervasive disregard of the Rules of Civil Procedure affecting numerous cases. [14] Similarly, in La Buy the Court upheld the authority of the Court of Appeals under § 1651 (a) to issue writs of mandamus compelling a district judge to rescind his referral of two antitrust cases to a master for trial. The Court found that the referral was a clear abuse of discretion, and further noted that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references `does not commend itself'. . . [and that it was] `all too common in the Northern District of Illinois.'  352 U. S., at 257, 258. This factor was primary among the exceptional circumstances found to warrant the Court of Appeals' issuance of the writs. In the reported case most nearly analogous to this one, the Court of Appeals for the Third Circuit issued a writ of mandamus at the behest of the United States to compel a district judge to return to the judicial office from which he had been unlawfully removed. United States v. Malmin, 272 F. 785 (C. A. 3d Cir. 1921). Judge Malmin, of the District Court of the Virgin Islands, had returned to the United States after the territorial governor had purported to remove him and appoint another to his seat. Relying on § 262 of the Judicial Code of 1911, a predecessor of the All Writs Act, the court ruled that it had authority to issue the writ in aid of its jurisdiction, id., at 791; it observed that the absence of a lawfully appointed judge of the District Court affected the rights of litigants in cases reviewable in the Court of Appeals, and that the right of the public to a properly constituted trial court from which appeals can validly lie could not be asserted or brought about in proceedings on appeal or by writ of error. In those circumstances, the court deemed it essential to the appellate jurisdiction of this court that orderly proceedings in the District Court of the Virgin Islands be restored. Id., at 792. A dissenter in Malmin disagreed with the majority's conclusion that the defect could not be rectified on appeal, and urged that mandamus should not issue because it could not bind the succeeding appointee, who was not a party. In the case before us, as noted above, the ordinary appeals are not adequate to protect Judge Chandler's interest; and there is no problem of missing parties, since it is the judge himself who is complaining of illegal interference with the exercise of his office, and that complaint can be remedied fully by the issuance of a writ against respondent Judicial Council. For these reasons I would conclude that the actions challenged by Judge Chandler sufficiently affect matters within this Court's appellate jurisdiction to bring his application for an extraordinary writ within our authority under § 1651 (a), and that his charges, if sustained, would present an appropriate occasion for the issuance of such a writ. [15]",statutory jurisdiction
+353,118183,2,1,"(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated rape, forcible rape, aggravated burglary, armed robbery, drive-by shooting, first degree robbery, or simple robbery. (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties; (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or (4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. (5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve or sixty-five years of age or older. (6) When the offender has the specific intent to kill or to inflict great bodily harm while engaged in the distribution, exchange, sale, or purchase, or any attempt thereof, of a controlled dangerous substance listed in Schedules I, II, III, IV, or V of the Uniform Controlled Dangerous Substances Law. (7) When the offender has specific intent to kill and is engaged in the activities prohibited by R. S. 14:107.1(C)(1). . . . . . C. Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the determination of the jury. La. Rev. Stat. Ann. § 14:30 (West 1986 and Supp. 1997) (emphasis added). This statute says that murder in the first degree shall be punished by death or life imprisonment without parole. It defines first-degree murder as the killing of a human being with a specific intent to kill or to inflict great bodily harm where the offender is committing certain other felonies or has been paid for the crime or kills more than one victim, or kills a fireman, a peace officer, someone over the age of 64, or someone under the age of 12. In this case, the jury found that the defendant killed a child under the age of 12 with a specific intent to kill or to inflict great bodily harm upon that child. In deciding whether the ACA assimilates Louisiana's law, we first ask whether the defendant's act or omission is made punishable by any enactment of Congress. 18 U. S. C. § 13(a) (emphasis added); see supra, at 164. The answer to this question is yes. An enactment of Congress, namely, § 1111, makes the defendant's act . . . punishable as second-degree murder. This answer is not conclusive, however, for reasons we have pointed out. Rather, we must ask a second question. See supra, at 164-165. Does applicable federal law indicate an intent to punish conduct such as the defendant's to the exclusion of the particular state statute at issue? We concede at the outset the Government's claim that the two statutes cover different forms of behavior. The federal second-degree murder statute covers a wide range of conduct; the Louisiana first-degree murder provision focuses upon a narrower (and different) range of conduct. We also concede that, other things being equal, this consideration argues in favor of assimilation. Yet other things are not equal; and other features of the federal statute convince us that Congress has intended that the federal murder statute preclude application of a first-degree murder statute such as Louisiana's to a killing on a federal enclave. The most obvious such feature is the detailed manner in which the federal murder statute is drafted. It purports to make criminal a particular form of wrongful behavior, namely, murder, which it defines as the unlawful killing of a human being with malice aforethought. It covers all variants of murder. It divides murderous behavior into two parts: a specifically defined list of first-degree murders and all other murders, which it labels second-degree. This fact, the way in which first-degree and second-degree provisions are linguistically interwoven; the fact that the first-degree list is detailed; and the fact that the list sets forth several circumstances at the same level of generality as does Louisiana's statute, taken together, indicate that Congress intended its statute to cover a particular field— namely, unlawful killing of a human being with malice aforethought—as an integrated whole. The complete coverage of the federal statute over all types of federal enclave murder is reinforced by the extreme breadth of the possible sentences, ranging all the way from any term of years, to death. There is no gap for Louisiana's statute to fill. Several other circumstances offer support for the conclusion that Congress' omissions from its first-degree murder list reflect a considered legislative judgment. Congress, for example, has recently focused directly several times upon the content of the first-degree list, subtracting certain specified circumstances or adding others. See Pub. L. 99-646, 100 Stat. 3623 (substituting aggravated sexual abuse or sexual abuse for rape); Pub. L. 98-473, 98 Stat. 2138 (adding escape, murder, kidnaping, treason, espionage, and sabotage to first-degree list). By drawing the line between first and second degree, Congress also has carefully decided just when it does, and when it does not, intend for murder to be punishable by death—a major way in which the Louisiana first-degree murder statute (which provides the death penalty) differs from the federal second-degree provision (which does not). 18 U. S. C. § 1111(b); La. Rev. Stat. Ann. § 14:30(C) (West Supp. 1997). The death penalty is a matter that typically draws specific congressional attention. See, e. g., Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 60003, 108 Stat. 1968 (section entitled Specific Offenses For Which [the] Death Penalty Is Authorized). As this Court said in Williams, [w]here offenses have been specifically defined by Congress and the public has been guided by such definitions for many years, it is unusual for Congress through general legislation like the ACA to amend such definitions or the punishments prescribed for such offenses, without making clear its intent to do so. 327 U. S., at 718 (footnote omitted). Further, Congress when writing and amending the ACA has referred to the conduct at issue here—murder—as an example of a crime covered by, not as an example of a gap in, federal law. See H. R. Rep. No. 1584, 76th Cong., 3d Sess., 1 (1940) (Certain of the major crimes . . . such . . . as murder are expressly defined by Congress; assimilation of state law is proper as to other offenses); 1 Cong. Deb. 338 (1825) (Daniel Webster explaining original assimilation provision as a way to cover the residue of crimes not provide[d] for by Congress; at the time federal law contained a federal enclave murder provision, see 1 Stat. 113); see also United States v. Sharpnack, 355 U. S., at 289, and n. 5 (citing 18 U. S. C. § 1111 for proposition that Congress has increasingly enact[ed] for the enclaves specific criminal statutes and to that extent, [has] excluded the state laws from that field). Finally, the federal criminal statute before us applies only on federal enclaves. § 1111(b). Hence, there is a sense in which assimilation of Louisiana law would treat those living on federal enclaves differently from those living elsewhere in Louisiana, for it would subject them to two sets of territorial criminal laws in addition to the general federal criminal laws that apply nationwide. See supra, at 163. Given all these considerations, it is perhaps not surprising that we have been unable to find a single reported case in which a federal court has used the ACA to assimilate a state murder law to fill a supposed gap in the federal murder statute. The Government, arguing to the contrary, says that Louisiana's provision is a type of child protection statute, filling a gap in federal enclave-related criminal law due to the fact that Congress left child abuse, like much other domestic relations law, to the States. See Brief for United States 23, 29-30. The fact that Congress, when writing various criminal statutes, has focused directly upon child protection weakens the force of this argument. See, e. g., 21 U. S. C. §§ 859(a)—(b) (person selling drugs to minors is subject to twice the maximum sentence as one who deals to adults, and repeat offenders who sell to children subject to three times the normal maximum); 18 U. S. C. § 1201(g) (special rule for kidnaping offenses involving minors, with enhanced penalties in certain cases); §§ 2241(c) and 2243 (prohibiting sexual abuse of minors); § 2251 (prohibiting sexual exploitation of children); § 2251A (selling and buying of children); § 2258 (failure to report child abuse). And, without expressing any view on the merits of lower court cases that have assimilated state child abuse statutes despite the presence of a federal assault law, § 113, see, e. g., United States v. Brown, 608 F. 2d, at 553-554; United States v. Fesler, 781 F. 2d 384, 390-391 (CA5 1986), we note that the federal assault prohibition is less comprehensive than the federal murder statute, and the relevant statutory relationships are less direct than those at issue here. We conclude that the consideration to which the Government points is not strong enough to open a child-related gap in the comprehensive effort to define murder on federal enclaves. For these reasons we agree with the Fifth Circuit that federal law does not assimilate the child victim provision of Louisiana's first-degree murder statute.",First degree murder is the killing of a human being:
+354,106288,1,1,"We held in Railway Employes' Dept. v. Hanson, 351 U. S. 225, that enactment of the provision of § 2, Eleventh authorizing union-shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause and did not violate the First Amendment or the Due Process Clause of the Fifth Amendment. It is argued that our disposition of the First Amendment claims in Hanson disposes of appellees' constitutional claims in this case adversely to their contentions. We disagree. As appears from its history, that case decided only that § 2, Eleventh, in authorizing collective agreements conditioning employees' continued employment on payment of union dues, initiation fees and assessments, did not on its face impinge upon protected rights of association. The Nebraska Supreme Court in Hanson, upholding the employees' contention that the union shop could not constitutionally be enforced against them, stated that the union shop improperly burdens their right to work and infringes upon their freedoms. This is particularly true as to the latter because it is apparent that some of these labor organizations advocate political ideas, support political candidates, and advance national economic concepts which may or may not be of an employee's choice. 160 Neb. 669, 697, 71 N. W. 2d 526, 546. That statement was made in the context of the argument that compelling an individual to become a member of an organization with political aspects is an infringement of the constitutional freedom of association, whatever may be the constitutionality of compulsory financial support of group activities outside the political process. The Nebraska court's reference to the support of political ideas, candidates, and economic concepts which may or may not be of an employee's choice indicates that it was considering at most the question of compelled membership in an organization with political facets. In their brief in this Court the appellees in Hanson argued that First Amendment rights would be infringed by the enforcement of an agreement which would enable compulsorily collected funds to be used for political purposes. But there was nothing concrete in the record to show the extent to which the unions were actually spending money for political purposes and what these purposes were, nothing to show the extent to which union funds collected from members were being used to meet the costs of political activity and the mechanism by which this was done, and nothing to show that the employees there involved opposed the use of their money for any particular political objective. [5] In contrast, the present record contains detailed information on all these points, and specific findings were made in the courts below as to all of them. When it is recalled that the action in Hanson was brought before the union-shop agreement became effective and that the appellees never thereafter showed that the unions were actually engaged in furthering political causes with which they disagreed and that their money would be used to support such activities, it becomes obvious that this Court passed merely on the constitutional validity of § 2, Eleventh of the Railway Labor Act on its face, and not as applied to infringe the particularized constitutional rights of any individual. On such a record, the Court could not have done more, consistently with the restraints that govern us in the adjudication of constitutional questions and warn against their premature decision. We therefore reserved decision of the constitutional questions which the appellees present in this case. We said: It is argued that compulsory membership will be used to impair freedom of expression. But that problem is not presented by this record. . . . if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case. For we pass narrowly on § 2, Eleventh of the Railway Labor Act. We only hold that the requirements for financial support of the collective-bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause and does not violate either the First or the Fifth Amendments. Id., p. 238. See also p. 242 (concurring opinion). Thus all that was held in Hanson was that § 2, Eleventh was constitutional in its bare authorization of union-shop contracts requiring workers to give financial support to unions legally authorized to act as their collective bargaining agents. We sustained this requirement—and only this requirement—embodied in the statutory authorization of agreements under which all employees shall become members of the labor organization representing their craft or class. Clearly we passed neither upon forced association in any other aspect nor upon the issue of the use of exacted money for political causes which were opposed by the employees. The record in this case is adequate squarely to present the constitutional questions reserved in Hanson. These are questions of the utmost gravity. However, the restraints against unnecessary constitutional decisions counsel against their determination unless we must conclude that Congress, in authorizing a union shop under § 2, Eleventh, also meant that the labor organization receiving an employee's money should be free, despite that employee's objection, to spend his money for political causes which he opposes. Federal statutes are to be so construed as to avoid serious doubt of their constitutionality. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. Crowell v. Benson, 285 U. S. 22, 62. Each named appellee in this action has made known to the union representing his craft or class his dissent from the use of his money for political causes which he opposes. We have therefore examined the legislative history of § 2, Eleventh in the context of the development of unionism in the railroad industry under the regulatory scheme created by the Railway Labor Act to determine whether a construction is fairly possible which denies the authority to a union, over the employee's objection, to spend his money for political causes which he opposes. We conclude that such a construction is not only fairly possible but entirely reasonable, and we therefore find it unnecessary to decide the correctness of the constitutional determinations made by the Georgia courts.",the hanson decision.
+355,106288,1,2,"The history of union security in the railway industry is marked first, by a strong and long-standing tradition of voluntary unionism on the part of the standard rail unions; [6] second, by the declaration in 1934 of a congressional policy of complete freedom of choice of employees to join or not to join a union; third, by the modification of the firm legislative policy against compulsion, but only as a specific response to the recognition of the expenses and burdens incurred by the unions in the administration of the complex scheme of the Railway Labor Act. When the question of union security in the rail industry was first given detailed consideration by Congress in 1934 [7] only one of the standard unions had security provisions in any of its contracts. The Brotherhood of Railroad Trainmen maintained a number of so-called percentage contracts, requiring that in certain classes of employees represented by the Brotherhood, a specified percentage of employees had to belong to the union. These contracts applied only to yard conductors, yard brakemen and switchmen, and covered no more than 10,000 workers, about 1% of all rail employees. See letter from Joseph B. Eastman, Federal Coordinator of Transportation, to Chairman of the House Committee on Interstate and Foreign Commerce, June 7, 1934, H. R. Rep. No. 1944, 73d Cong., 2d Sess., pp. 14-16; testimony of James A. Farquharson, legislative representative of the Brotherhood of Railroad Trainmen, Hearings on H. R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., pp. 94-105. During congressional consideration of the 1934 legislation, the rail unions attempted to persuade Congress not to preclude them from negotiating security arrangements. By amendments to the original proposal, they sought to assure that the provision which became § 2, Fifth should prevent the carriers from conditioning employment on membership in a company union but should exempt the standard unions from its prohibitions. The Trainmen, the only union which stood to lose existing contracts if the section was not limited to company unions, especially urged such a limitation. See statement of A. F. Whitney, president, S. Rep. No. 1065, 73d Cong., 2d Sess., pt. 2, p. 2; see also 78 Cong. Rec. 12372, 12376. The unions succeeded in having the House incorporate such a limitation in the bill it passed. See H. R. Rep. No. 1944, 73d Cong., 2d Sess. 2, 6; 78 Cong. Rec. 11710-11720. But the Senate did not acquiesce. Eastman, a firm believer in complete freedom of employees in their choice of representatives, strongly opposed the limitation. He characterized it as vicious, because it strikes at the principle of freedom of choice which the bill is designed to protect. The prohibited practices acquire no virtue by being confined to so-called `standard union.' . . . Within recent years, the practice of tying up men's jobs with labor-union membership has crept into the railroad industry which theretofore was singularly clean in this respect. The practice has been largely in connection with company unions but not entirely. If genuine freedom of choice is to be the basis of labor relations under the Railway Labor Act, as it should be, then the yellow-dog contract, and its corollary, the closed shop, and the so-called `percentage contract' have no place in the picture. Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess., p. 157. [8] Eastman's views prevailed in the Senate, and the House concurred in a final version of § 2, Fifth, providing that [n]o carrier. . . shall require any person seeking employment to sign any contract or agreement promising to join or not to join a labor organization. See 78 Cong. Rec. 12369-12376, 12382-12388, 12389-12398, 12400-12402, 12549-12555. During World War II, the nonoperating unions made an unsuccessful attempt to obtain union security, incidental to an effort to secure a wage increase. Following the failure of negotiations and mediation, a Presidential Emergency Board was appointed. Two principal reasons were advanced by the unions. They urged that in view of their pledge not to strike for the duration and their responsibilities to assure uninterrupted operation of the railroads, they were justified in seeking to maintain their positions by union security arrangements. They also maintained that since they secured benefits through collective bargaining for all employees they represented, it was fair that the costs of their operations be shared by all workers. The Board recommended withdrawal of the request, concluding that the union shop was plainly forbidden by the Railway Labor Act and that in any event the unions had failed to show its necessity or utility. Presidential Emergency Board, appointed Feb. 20, 1943, Report of May 24, 1943; Supplemental Report, May 29, 1943. The Report said: [T]he Board is convinced that the essential elements of the union shop as defined in the employees' request are prohibited by section 2 of the Railway Labor Act. The intent of Congress in this respect is made evident, with unusual clarity. Supplemental Report, supra, p. 29. [9] On the merits of the issue, the Board expressly rejected the claim that union security was necessary to protect the bargaining position of the unions: [T]he unions are not suffering from a falling off in members. On the contrary, . . . membership has been growing and at the present time appears to be the largest in railroad history, with less than 10 percent nonmembership among the employees here represented. Supplemental Report, p. 31. [T]he evidence presented with respect to danger from predatory rivals seemed to the Board lacking in sufficiency; especially so in the light of the evidence concerning membership growth. Ibid. [N]o evidence was presented indicating that the unions stand in jeopardy by reason of carrier opposition. A few railroads were mentioned on which some of the unions do not represent a majority of their craft or class, and do not have bargaining relationships with the carrier. But the exhibits show that these unions are the chosen representatives of the employees on the overwhelming majority of the railroads, and that recognition of the unions is general. The Board does not find therefore that a sufficient case has been made for the necessity of additional protection of union status on the railroads. Id., p. 32. The unions acceded to the Board's recommendation. The question of union security was reopened in 1950. [10] Congress then evaluated the proposal for authorizing the union shop primarily in terms of its relationship to the financing of the unions' participation in the machinery created by the Railway Labor Act to achieve its goals. The framework for fostering voluntary adjustments between the carriers and their employees in the interest of the efficient discharge by the carriers of their important functions with minimum disruption from labor strife has no statutory parallel in other industry. That machinery, the product of a long legislative evolution, is more complex than that of any other industry. The labor relations of interstate carriers have been a subject of congressional enactments since 1888. [11] For a time, after World War I, Congress experimented with a form of compulsory arbitration. [12] The experiment was unsuccessful. Congress has since that time consistently adhered to a regulatory policy which places the responsibility squarely upon the carriers and the unions mutually to work out settlements of all aspects of the labor relationship. That policy was embodied in the Railway Labor Act of 1926, 44 Stat. 577, which remains the basic regulatory enactment. As the Senate Report on the bill which became that law stated: The question was . . . presented whether the substitute [for the Act of 1920] should consist of a compulsory system with adequate means provided for its enforcement, or whether it was in the public interest to create the machinery for amicable adjustment of labor disputes agreed upon by the parties and to the success of which both parties were committed. . . . The committee is of opinion that it is in the public interest to permit a fair trial of the method of amicable adjustment agreed upon by the parties, rather than to attempt under existing conditions to use the entire power of the Government to deal with these labor disputes. S. Rep. No. 606, 69th Cong., 1st Sess., p. 4. The reference to the plan agreed upon by the parties was to the fact that the Railway Labor Act of 1926 came on the statute books through agreement between the railroads and the railroad unions on the need for such legislation. It is accurate to say that the railroads and the railroad unions between them wrote the Railway Labor Act of 1926 and Congress formally enacted their agreement. Railway Employes' Dept. v. Hanson, supra, p. 240 (concurring opinion). See generally Murphy, Agreement on the Railroads—The Joint Railway Conference of 1926, 11 Lab. L. J. 823. All through the [1926] act is the theory that the agreement is the vital thing in life. Statement of Donald R. Richberg, Hearings on H. R. 7180, House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., pp. 15-16. The Act created affirmative legal duties on the part of the carriers and their employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise . . . . § 2, First. See Texas & N. O. R. Co. v. Brotherhood of Railway & Steamship Clerks, 281 U. S. 548. The Act also established a comprehensive administrative apparatus for the adjustment of disputes, in conferences between the parties, § 2, Second, Third and Fourth (now Sixth), and if not so settled, in submissions to boards of adjustment, § 3, or the National Mediation Board, § 4. And the legislation expanded the already existing voluntary arbitration machinery, §§ 7, 8, 9. A primary purpose of the major revisions made in 1934 was to strengthen the position of the labor organizations vis-a-vis the carriers, to the end of furthering the success of the basic congressional policy of self-adjustment of the industry's labor problems between carrier organizations and effective labor organizations. The unions claimed that the carriers interfered with the employees' freedom of choice of representatives by creating company unions, and otherwise attempting to undermine the employees' participation in the process of collective bargaining. Congress amended § 2, Third to reinforce the prohibitions against interference with the choice of representatives, and to permit the employees to select nonemployee representatives. A new § 2, Fourth was added guaranteeing employees the right to organize and bargain collectively, and Congress made it the enforceable duty of the carriers to treat with the representatives of the employees, § 2, Ninth. See Virginian R. Co. v. System Federation, 300 U. S. 515. It was made explicit that the representative selected by a majority of any class or craft of employees should be the exclusive bargaining representative of all the employees of that craft or class. The minority members of a craft are thus deprived by the statute of the right, which they would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining. Steele v. Louisville & N. R. Co., 323 U. S. 192, 200. Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents. . . . Id., p. 202. In addition to thus strengthening the unions' status in relation to both the carriers and the employees, the 1934 Act created the National Railroad Adjustment Board and provided that the 18 employee representatives were to be chosen by the labor organizations national in scope. § 3. This Board was given jurisdiction to settle what are termed minor disputes in the railroad industry, primarily grievances arising from the application of collective bargaining agreements to particular situations. See Union Pacific R. Co. v. Price, 360 U. S. 601. In sum, in prescribing collective bargaining as the method of settling railway disputes, in conferring upon the unions the status of exclusive representatives in the negotiation and administration of collective agreements, and in giving them representation on the statutory board to adjudicate grievances, Congress has given the unions a clearly defined and delineated role to play in effectuating the basic congressional policy of stabilizing labor relations in the industry. It is fair to say that every stage in the evolution of this railroad labor code was progressively infused with the purpose of securing self-adjustment between the effectively organized railroads and the equally effective railroad unions and, to that end, of establishing facilities for such self-adjustment by the railroad community of its own industrial controversies. . . . The assumption as well as the aim of that Act [of 1934] is a process of permanent conference and negotiation between the carriers on the one hand and the employees through their unions on the other. Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 752-753 (dissenting opinion). Performance of these functions entails the expenditure of considerable funds. Moreover, this Court has held that under the statutory scheme, a union's status as exclusive bargaining representative carries with it the duty fairly and equitably to represent all employees of the craft or class, union and nonunion. Steele v. Louisville & N. R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210. The principal argument made by the unions in 1950 was based on their role in this regulatory framework. They maintained that because of the expense of performing their duties in the congressional scheme, fairness justified the spreading of the costs to all employees who benefited. They thus advanced as their purpose the elimination of the free riders—those employees who obtained the benefits of the unions' participation in the machinery of the Act without financially supporting the unions. George M. Harrison, spokesman for the Railway Labor Executives' Association, stated the unions' case in this fashion: Activities of labor organizations resulting in the procurement of employee benefits are costly, and the only source of funds with which to carry on these activities is the dues received from members of the organization. We believe that it is essentially unfair for nonmembers to participate in the benefits of those activities without contributing anything to the cost. This is especially true when the collective bargaining representative is one from whose existence and activities he derives most important benefits and one which is obligated by law to extend these advantages to him. Furthermore, collective bargaining to the railroad industry is more costly from a monetary standpoint than that carried on in any other industry. The administrative machinery is more complete and more complex. The mediation, arbitration, and Presidential Emergency Board provisions of the act, while greatly in the public interest, are very costly to the unions. The handling of agreement disputes through the National Railroad Adjustment Board also requires expense which is not known to unions in outside industry. Hearings on H. R. 7789, House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., p. 10. This argument was decisive with Congress. The House Committee Report traced the history of previous legislation in the industry and pointed out the duty of the union acting as exclusive bargaining representative to represent equally all members of the class. Under the act, the collective-bargaining representative is required to represent the entire membership of the craft or class, including non-union members, fairly, equitably, and in good faith. Benefits resulting from collective bargaining may not be withheld from employees because they are not members of the union. H. R. Rep. No. 2811, 81st Cong., 2d Sess., p. 4. Observing that about 75% or 80% of all railroad employees were believed to belong to a union, the report continued: Nonunion members, nevertheless, share in the benefits derived from collective agreements negotiated by the railway labor unions but bear no share of the cost of obtaining such benefits. Ibid. [13] These considerations overbore the arguments in favor of the earlier policy of complete individual freedom of choice. As we said in Railway Employes' Dept. v. Hanson, supra, p. 235, [t]o require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs may not be the wisest course. But Congress might well believe that it would help insure the right to work in and along the arteries of interstate commerce. No more has been attempted here. . . . The financial support required relates . . . to the work of the union in the realm of collective bargaining. [14] The conclusion to which this history clearly points is that § 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes. [15] One looks in vain for any suggestion that Congress also meant in § 2, Eleventh to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.",the rail unions and union security.
+356,106288,1,3,"To the contrary, Congress incorporated safeguards in the statute to protect dissenters' interests. Congress became concerned during the hearings and debates that the union shop might be used to abridge freedom of speech and beliefs. The original proposal for authorization of the union shop was qualified in only one respect. It provided That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member. . . . This was primarily designed to prevent discharge of employees for nonmembership where the union did not admit the employee to membership on racial grounds. See House Hearings, p. 68; Senate Hearings, pp. 22-25. But it was strenuously protested that the proposal provided no protection for an employee who disagreed with union policies or leadership. It was argued, for example, that the right of free speech is at stake. . . . A man could feel that he was no longer able freely to express himself because he could be dismissed on account of criticism of the union . . . . House Hearings, p. 115; see also Senate Hearings, pp. 167-169, 320. Objections of this kind led the rail unions to propose an addition to the proviso to § 2, Eleventh to prevent loss of job for lack of union membership with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, fees, and assessments uniformly required as a condition of acquiring or retaining membership. House Hearings, p. 247. Mr. Harrison presented this text and stated, It is submitted that this bill with the amendment as suggested in this statement remedies the alleged abuses of compulsory union membership as claimed by the opposing witnesses, yet makes possible the elimination of the `free rider' and the sharing of the burden of maintenance by all of the beneficiaries of union activity. House Hearings, p. 253. Mr. Harrison also sought to reassure Committee members as to the possible implications of other language of the proposed bill; he explained that fees meant initiation fees, and assessments was intended primarily to cover the situation of a union which had only nominal dues, so that its members paid an assessment to finance the activities of the general negotiating committee . . . it will vary month by month, based on the expenses and work of that committee. P. 257. Or, he explained, an assessment might cover convention expenses. So we had to use the word `assessment' in addition to dues and fees because some of the unions collect a nominal amount of dues and an assessment month after month to finance part of the activities, although in total it perhaps is no different than the dues paid in the first instance which comprehended all of those expenses. P. 258. In reporting the bill, the Senate Committee expressly noted the protective proviso, S. Rep. No. 2262, 81st Cong., 2d Sess., pp. 3-4, and affixed the Senate additional limitations. The words not including fines and penalties were added, to make it clear that termination of union membership for their nonpayment would not be grounds for discharge. It was also made explicit that fees meant initiation fees. See 96 Cong. Rec. 16267-16268. A congressional concern over possible impingements on the interests of individual dissenters from union policies is therefore discernible. It is true that opponents of the union shop urged that Congress should not allow it without explicitly regulating the amount of dues which might be exacted or prescribing the uses for which the dues might be expended. [16] We may assume that Congress was also fully conversant with the long history of intensive involvement of the railroad unions in political activities. But it does not follow that § 2, Eleventh places no restriction on the use of an employee's money, over his objection, to support political causes he opposes merely because Congress did not enact a comprehensive regulatory scheme governing expenditures. For it is abundantly clear that Congress did not completely abandon the policy of full freedom of choice embodied in the 1934 Act, but rather made inroads on it for the limited purpose of eliminating the problems created by the free rider. That policy survives in § 2, Eleventh in the safeguards intended to protect freedom of dissent. Congress was aware of the conflicting interests involved in the question of the union shop and sought to achieve their accommodation. As was said by the Presidential Emergency Board which recommended the making of the union-shop agreement involved in this case: It is not as though Congress had believed it was merely removing some abstract legal barrier and not passing on the merits. It was made fully aware that it was deciding these critical issues of individual right versus collective interests which have been stressed in this proceeding. Indeed, Congress gave very concrete evidence that it carefully considered the claims of the individual to be free of arbitrary or unreasonable restrictions resulting from compulsory unionism. It did not give a blanket approval to union-shop agreements. Instead it enacted a precise and carefully drawn limitation on the kind of union-shop agreements which might be made. The obvious purpose of this careful prescription was to strike a balance between the interests pressed by the unions and the considerations which the Carriers have urged. By providing that a worker should not be discharged if he was denied or if he lost his union membership for any reason other than nonpayment of dues, initiation fees or assessments, Congress definitely indicated that it had weighed carefully and given effect to the policy of the arguments against the union shop. Report of Presidential Emergency Board No. 98, appointed pursuant to Exec. Order No. 10306, Nov. 15, 1951, p. 6. We respect this congressional purpose when we construe § 2, Eleventh as not vesting the unions with unlimited power to spend exacted money. We are not called upon to delineate the precise limits of that power in this case. We have before us only the question whether the power is restricted to the extent of denying the unions the right, over the employee's objection, to use his money to support political causes which he opposes. Its use to support candidates for public office, and advance political programs, is not a use which helps defray the expenses of the negotiation or administration of collective agreements, or the expenses entailed in the adjustment of grievances and disputes. In other words, it is a use which falls clearly outside the reasons advanced by the unions and accepted by Congress why authority to make union-shop agreements was justified. On the other hand, it is equally clear that it is a use to support activities within the area of dissenters' interests which Congress enacted the proviso to protect. We give § 2, Eleventh the construction which achieves both congressional purposes when we hold, as we do, that § 2, Eleventh is to be construed to deny the unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes. [17] We express no view as to other union expenditures objected to by an employee and not made to meet the costs of negotiation and administration of collective agreements, or the adjustment and settlement of grievances and disputes. We do not understand, in view of the findings of the Georgia courts and the question decided by the Georgia Supreme Court, that there is before us the matter of expenditures for activities in the area between the costs which led directly to the complaint as to free riders, and the expenditures to support union political activities. [18] We are satisfied, however, that § 2, Eleventh is to be interpreted to deny the unions the power claimed in this case. The appellant unions, in insisting that § 2, Eleventh contemplates their use of exacted funds to support political causes objected to by the employee, would have us hold that Congress sanctioned an expansion of historical practices in the political area by the rail unions. This we decline to do. Both by tradition and, from 1934 to 1951, by force of law, the rail unions did not rely upon the compulsion of union security agreements to exact money to support the political activities in which they engage. Our construction therefore involves no curtailment of the traditional political activities of the railroad unions. It means only that those unions must not support those activities, against the expressed wishes of a dissenting employee, with his exacted money. [19]",the safeguarding of rights of dissent.
+357,106288,1,4,"Under our view of the statute, however, the decision of the court below was erroneous and cannot stand. The appellees who have participated in this action have in the course of it made known to their respective unions their objection to the use of their money for the support of political causes. In that circumstance, the respective unions were without power to use payments thereafter tendered by them for such political causes. However, the union-shop agreement itself is not unlawful. Railway Employes' Dept. v. Hanson, supra . The appellees therefore remain obliged, as a condition of continued employment, to make the payments to their respective unions called for by the agreement. Their right of action stems not from constitutional limitations on Congress' power to authorize the union shop, but from § 2, Eleventh itself. In other words, appellees' grievance stems from the spending of their funds for purposes not authorized by the Act in the face of their objection, not from the enforcement of the union-shop agreement by the mere collection of funds. If their money were used for purposes contemplated by § 2, Eleventh, the appellees would have no grievance at all. We think that an injunction restraining enforcement of the union-shop agreement is therefore plainly not a remedy appropriate to the violation of the Act's restriction on expenditures. Restraining the collection of all funds from the appellees sweeps too broadly, since their objection is only to the uses to which some of their money is put. Moreover, restraining collection of the funds as the Georgia courts have done might well interfere with the appellant unions' performance of those functions and duties which the Railway Labor Act places upon them to attain its goal of stability in the industry. Even though the lower court decree is subject to modification upon proof by the appellants of cessation of improper expenditures, in the interim the prohibition is absolute against the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves. The complete shutoff of this source of income defeats the congressional plan to have all employees benefited share costs in the realm of collective bargaining, Hanson, 351 U. S., at p. 235, and threatens the basic congressional policy of the Railway Labor Act for self-adjustments between effective carrier organizations and effective labor organizations. [20] Since the case must therefore be remanded to the court below for consideration of a proper remedy, we think that it is appropriate to suggest the limits within which remedial discretion may be exercised consistently with the Railway Labor Act and other relevant public policies. As indicated, an injunction against enforcement of the union shop itself through the collection of funds is unwarranted. We also think that a blanket injunction against all expenditures of funds for the disputed purposes, even one conditioned on cessation of improper expenditures, would not be a proper exercise of equitable discretion. Nor would it be proper to issue an interim or temporary blanket injunction of this character pending a final adjudication. The Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U. S. 515; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right. In Graham this Court found an injunction necessary to prevent the breach of the duty of fair representation, in order that Congress might not seem to have held out to the petitioners there an illusory right for which it was denying them a remedy. 338 U. S., at p. 240. No such necessity for a blanket injunctive remedy because of the absence of reasonable alternatives appears here. Moreover, the fact that these expenditures are made for political activities is an additional reason for reluctance to impose such an injunctive remedy. Whatever may be the powers of Congress or the States to forbid unions altogether to make various types of political expenditures, as to which we express no opinion here, [21] many of the expenditures involved in the present case are made for the purpose of disseminating information as to candidates and programs and publicizing the positions of the unions on them. As to such expenditures an injunction would work a restraint on the expression of political ideas which might be offensive to the First Amendment. For the majority also has an interest in stating its views without being silenced by the dissenters. To attain the appropriate reconciliation between majority and dissenting interests in the area of political expression, we think the courts in administering the Act should select remedies which protect both interests to the maximum extent possible without undue impingement of one on the other. Among possible remedies which would appear appropriate to the injury complained of, two may be enforced with a minimum of administrative difficulty [22] and with little danger of encroachment on the legitimate activities or necessary functions of the unions. Any remedies, however, would properly be granted only to employees who have made known to the union officials that they do not desire their funds to be used for political causes to which they object. The safeguards of § 2, Eleventh were added for the protection of dissenters' interest, but dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee. The union receiving money exacted from an employee under a union-shop agreement should not in fairness be subjected to sanctions in favor of an employee who makes no complaint of the use of his money for such activities. From these considerations, it follows that the present action is not a true class action, for there is no attempt to prove the existence of a class of workers who had specifically objected to the exaction of dues for political purposes. See Hansberry v. Lee, 311 U. S. 32, 44. Thus we think that only those who have identified themselves as opposed to political uses of their funds are entitled to relief in this action. One remedy would be an injunction against expenditure for political causes opposed by each complaining employee of a sum, from those moneys to be spent by the union for political purposes, which is so much of the moneys exacted from him as is the proportion of the union's total expenditures made for such political activities to the union's total budget. The union should not be in a position to make up such sum from money paid by a nondissenter, for this would shift a disproportionate share of the costs of collective bargaining to the dissenter and have the same effect of applying his money to support such political activities. A second remedy would be restitution to each individual employee of that portion of his money which the union expended, despite his notification, for the political causes to which he had advised the union he was opposed. There should be no necessity, however, for the employee to trace his money up to and including its expenditure; if the money goes into general funds and no separate accounts of receipts and expenditures of the funds of individual employees are maintained, the portion of his money the employee would be entitled to recover would be in the same proportion that the expenditures for political purposes which he had advised the union he disapproved bore to the total union budget. The judgment is reversed and the case is remanded to the court below for proceedings not inconsistent with this opinion. Reversed and remanded.",the appropriate remedy.
+358,106288,1,3,"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Probably no one would suggest that Congress could, without violating this Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes. Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands. There is, of course, no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it. [10] Labor unions made up of voluntary members free to get in or out of the unions when they please have played important and useful roles in politics and economic affairs. [11] How to spend its money is a question for each voluntary group to decide for itself in the absence of some valid law forbidding activities for which the money is spent. [12] But a different situation arises when a federal law steps in and authorizes such a group to carry on activities at the expense of persons who do not choose to be members of the group as well as those who do. Such a law, even though validly passed by Congress, cannot be used in a way that abridges the specifically defined freedoms of the First Amendment. And whether there is such abridgment depends not only on how the law is written but also on how it works. [13] There can be no doubt that the federally sanctioned union-shop contract here, as it actually works, takes a part of the earnings of some men and turns it over to others, who spend a substantial part of the funds so received in efforts to thwart the political, economic and ideological hopes of those whose money has been forced from them under authority of law. This injects federal compulsion into the political and ideological processes, a result which I have supposed everyone would agree the First Amendment was particularly intended to prevent. And it makes no difference if, as is urged, political and legislative activities are helpful adjuncts of collective bargaining. Doubtless employers could make the same arguments in favor of compulsory contributions to an association of employers for use in political and economic programs calculated to help collective bargaining on their side. But the argument is equally unappealing whoever makes it. The stark fact is that this Act of Congress is being used as a means to exact money from these employees to help get votes to win elections for parties and candidates and to support doctrines they are against. If this is constitutional the First Amendment is not the charter of political and religious liberty its sponsors believed it to be. James Madison, who wrote the Amendment, said in arguing for religious liberty that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever. [14] And Thomas Jefferson said that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical. [15] These views of Madison and Jefferson authentically represent the philosophy embodied in the safeguards of the First Amendment. That Amendment leaves the Federal Government no power whatever to compel one man to expend his energy, his time or his money to advance the fortunes of candidates he would like to see defeated or to urge ideologies and causes he believes would be hurtful to the country. The Court holds that § 2, Eleventh denies unions, over an employee's objection, the power to use his exacted funds to support political causes which he opposes. While I do not so construe § 2, Eleventh, I want to make clear that I believe the First Amendment bars use of dues extorted from an employee by law for the promotion of causes, doctrines and laws that unions generally favor to help the unions, as well as any other political purposes. I think workers have as much right to their own views about matters affecting unions as they have to views about other matters in the fields of politics and economics. Indeed, some of their most strongly held views are apt to be precisely on the subject of unions, just as questions of law reform, court procedure, selection of judges and other aspects of the administration of justice give rise to some of the deepest and most irreconcilable differences among lawyers. In my view, § 2, Eleventh can constitutionally authorize no more than to make a worker pay dues to a union for the sole purpose of defraying the cost of acting as his bargaining agent. Our Government has no more power to compel individuals to support union programs or union publications than it has to compel the support of political programs, employer programs or church programs. And the First Amendment, fairly construed, deprives the Government of all power to make any person pay out one single penny against his will to be used in any way to advocate doctrines or views he is against, whether economic, scientific, political, religious or any other. [16] I would therefore hold that § 2, Eleventh of the Railway Labor Act, in authorizing application of the unionshop contract to the named protesting employees who are appellees here, violates the freedom of speech guarantee of the First Amendment.",The First Amendment provides:
+359,106288,1,4,"The Georgia court enjoined the unions and the railroads from certain future activities under the contract and also required repayment of dues paid by three employees who had protested use of union funds to support candidates or advocate views the protesting employees were against. I am not so sure as the Court that the injunction bars the collection of all funds from anyone who can show that he is opposed to the expenditure of any of his money for political purposes which he disapproves. So construed the injunction would take away the First Amendment right of employees to contribute their money voluntarily to a collective fund to be used to support and oppose candidates and causes even though individual contributors might disagree with particular choices of the group. So far as it may be ambiguous in this respect, I think the injunction should be modified to make sure that it does not interfere with the valuable rights of citizens to make their individual voices heard through voluntary collective action. For much the same basic reasons I think the injunction is too broad in that it runs not only in favor of the six protesting employees but also in favor of the class they represent. No one of that class is shown to have protested at all. The State Supreme Court nevertheless rejected the unions' contention that the so-called class was so indefinite, and its members so lacking in common, identifiable interests and mental attitudes, that a decree purporting to bind all of them, the railroads, the individual defendants and the unions, would not comport with the due process requirements of the Fifth and Fourteenth Amendments. For reasons to be stated, I agree with this contention of the unions and consequently would hold that the judgment here cannot stand insofar as it purports finally to adjudicate rights as between the party defendants and railroad employees who were neither named party plaintiffs nor intervenors in the suit. The trial court defined the class as composed of all non-operating employees of the railroad defendants affected by, and opposed to, the . . . union shop agreements, who also are opposed to the collection and use of periodic dues, fees and assessments for support of ideological and political doctrines and candidates and legislative programs . . . . [17] As applied to the facts here, this class, as defined, could include employees not only from Georgia, but also from Florida, Alabama, North Carolina, South Carolina, Tennessee, Louisiana, Illinois, Virginia, Ohio, Indiana, Missouri, Mississippi, Kentucky and the District of Columbia. Genuine class actions result in binding judgments either for or against each member of the class. [18] Obviously, to make a judgment binding, the parties for or against whom it is to operate must be identifiable when the judgment is rendered. That would not be possible here since the only employees included in the class would be those who personally oppose the views they allege the union is using their dues to promote. This would make the class depend on the views entertained by each member, views which may change from day to day or year to year. Under these circumstances, when this decree was rendered neither the court nor the adverse parties nor anyone else could know, with certainty, to what individuals the unions owed a duty under the decree. In Hansberry v. Lee, 311 U. S. 32, 44, this Court pointed out the insuperable obstacles in attempting to treat as members of the same class parties to a contract such as the one here, some of whom might prefer to have the contract enforced and some of whom might not. Notice to persons whose rights are to be adjudicated is too important an element of our system of justice to permit a holding that this Georgia action has finally determined the issues for all the unidentifiable members of this class of plaintiffs spread territorially all the way from Florida to Illinois and from the District of Columbia to Missouri. After all the class suit doctrine is only a narrow judicially created exception to the rule that a case or controversy involves litigants who have been duly notified and given an opportunity to be present in court either in person or by counsel. [19] I would hold that there was no known common interest among the members of the described class here which justified this class action. From the very nature of the rights asserted, which depended on the unknown, perhaps fluctuating mental attitudes of employees, the rights of each employee were the basis for separable claims, in which the relief for each might vary as it did here as to the amount of damages awarded. Under these circumstances the class judgment should not stand. The decree, modified to eliminate its class aspect, does not unconditionally forbid the application of the contract to all people under all circumstances, as did the one we struck down in the Hanson case. The decree so modified would simply forbid use of the union-shop contract to bar employment of the six protesting employees so long as the unions do not discontinue the practice of spending union funds to support any causes or doctrines, political, economic or other, over the expressed objection of the six particular employees. Other employees who have not protested are of course in the entirely different position of voluntary or acquiescing dues payers, which they have every right to be, and since they have asked for no relief the decree in this case should not affect them. Thus modified I think the relief afforded by the decree is justified. The decree requires the union to refund dues, fees and assessments paid under protest by three of the complaining employees and exempts the six complaining employees from the payment of any union dues, fees or assessments so long as funds so received are used by the union to promote causes they are against. The state court found that these payments had been and would be made by these employees only because they had been compelled to join the union to save their jobs, despite their objections to paying the union so long as it used its funds for candidates, parties and ideologies contrary to these employees' wishes. The Court does not challenge this finding but nevertheless holds that relieving protesting workers of all payment of dues would somehow interfere with the union's statutory duty to act as a bargaining agent. In the first place, this would interfere with the union's activities only to the extent that it bars compulsion of dues payments from protesting workers to be used in some unknown part for unconstitutional purposes, and I think it perfectly proper to hold that such payments cannot be compelled. Furthermore, I think the remedy suggested by the Court will work a far greater interference with the union's bargaining activities because it will impose much greater trial and accounting burdens on both unions and workers. The Court's remedy is to give the wronged employees a right to a refund limited either to the proportion of the union's total expenditures made for such political activities or to the proportion . . . [of] expenditures for political purposes which he had advised the union he disapproved. It may be that courts and lawyers with sufficient skill in accounting, algebra, geometry, trigonometry and calculus will be able to extract the proper microscopic answer from the voluminous and complex accounting records of the local, national and international unions involved. It seems to me, however, that while the Court's remedy may prove very lucrative to special masters, accountants and lawyers, this formula, with its attendant trial burdens, promises little hope for financial recompense to the individual workers whose First Amendment freedoms have been flagrantly violated. Undoubtedly, at the conclusion of this long exploration of accounting intricacies, many courts could with plausibility dismiss the workers' claims as de minimis when measured only in dollars and cents. I cannot agree to treat so lightly the value of a man's constitutional right to be wholly free from any sort of governmental compulsion in the expression of opinions. It should not be forgotten that many men have left their native lands, languished in prison, and even lost their lives, rather than give support to ideas they were conscientiously against. The three workers who paid under protest here were forced under authority of a federal statute to pay all current dues or lose their jobs. They should get back all they paid with interest. Unions composed of a voluntary membership, like all other voluntary groups, should be free in this country to fight in the public forum to advance their own causes, to promote their choice of candidates and parties and to work for the doctrines or the laws they favor. But to the extent that Government steps in to force people to help espouse the particular causes of a group, that group— whether composed of railroad workers or lawyers—loses its status as a voluntary group. The reason our Constitution endowed individuals with freedom to think and speak and advocate was to free people from the blighting effect of either a partial or a complete governmental monopoly of ideas. Labor unions have been peculiar beneficiaries of that salutary constitutional principle, and lawyers, I think, are charged with a peculiar responsibility to preserve and protect this principle of constitutional freedom, even for themselves. A violation of it, however small, is, in my judgment, prohibited by the First Amendment and should be stopped dead in its tracks on its first appearance. With so vital a principle at stake, I cannot agree to the imposition of parsimonious limitations on the kind of decree the courts below can fashion in their efforts to afford effective protection to these priceless constitutional rights. I would affirm the judgment of the Georgia Supreme Court, with the modifications I have suggested.",The remedy:
+360,1303466,1,1,"The title under Connecticut is of no avail: Because the land in controversy is ex-territorial; it does not lie within the charter bounds of Connecticut, but within the charter-bounds of Pennsylvania. The charter of Connecticut does not cover or spread over the lands in question: Of course no title can be derived from Connecticut. Here then the defendant fails.",Under Connecticut.
+361,1303466,1,2,"The Indian deed, under which the defendant claims, bears date the 11th of July 1754. It has been observed, that this deed is radically defective and faulty; that fraud is apparent on the face of it; and, particularly, that the specification or description of the land is written on a razure. Of this, gentlemen, you will judge, as the deed will be given to you for inspection. Permit me to observe, that there are several ways, by which a deed may be voided or rendered of no effect. One of these is by razure, addition, interlining, or other alteration, in any material part, if done after its execution. It is the province of the jury to determine, whether any such alteration was made after the delivery of the deed. Besides, this deed appears to have been executed at different times; and not in that open, public, national manner, in which the Indians sell and transfer their lands. But if the deed was fairly obtained; if it has legal existence, then what is its legal operation? By the charter to William Penn, the right of pre-emption attached, and was vested in him, to all the lands comprehended within its limits. The Penn family had, exclusively, the right of purchasing the lands of the Indians; and, indeed, the Indians entered into a stipulation of that kind. Again, this deed is invalid by the laws of Pennsylvania. The Legislature of Pennsylvania, by an act passed the 7th Feb. 1705, declare; That if any person presume to buy any land of the natives, within the limits of this province and territories, without leave from the proprietary thereof, every such bargain or purchase shall be void and of no effect. (1 Penn.Laws. Dall. Ed. 5.) By an act passed the 14th Feb. 1729 — 30, it is further declared; That every gift, grant, bargain, sale, written or verbal contract or agreement, and every pretended conveyance, lease, demise, and every other assurance made, or that shall hereafter be made, with any of the Indian natives, for any lands, &c. within the limits of this province, without the order or direction of the proprietary or is commissioners, shall be null, void, and of no effect. (1 Penn.Laws. Dall. Ed. 248.) The land in controversy, being within the limits of Pennsylvania, the Connecticut settlers were, in legal estimation, trespassers and intruders. They purchased the land without leave, and entered upon it without right. They purchased and entered upon the land without the consent of the Legislature of Connecticut. True it is, that the Legislature of Connecticut gave a subsequent approbation, but this was posterior to the deed executed by the Six Nations to Penn, at fort Stanwix, and the principle of relation does not retrospect so as to affect third persons. The consequence is, that the Connecticut settlers derive no title under the Indian deed.",Under the Indians.
+362,1303466,1,3,"This is the keystone of the defendant's title, as one of his counsel very properly expressed it. It required no great sagacity to perceive, that the defendant's hope of success was founded on a law of Pennsylvania, commonly called the quieting and confirming act. This act, and the two subsequent ones of a suspending and a repealing nature, open an extensive and important field for discussion. In general verdicts, it frequently becomes necessary for juries to decide upon the law as well as the facts. To form a correct judgment, legal principles must be taken up and applied, and when this is done in a proper manner, it gives stability to judicial decisions, and security to civil rights. Hence uniformity and certainty; hence the decisions of tomorrow will be like the decisions of to-day; they will run in the same line, because they are founded on the same principles. To aid you, Gentlemen, in forming a verdict, I shall consider: I. The constitutionality of the confirming act; or, in other words, whether the Legislature had authority to make that act? Legislation is the exercise of sovereign authority. High and important powers are necessarily vested in the Legislative body; whose acts, under some forms of government, are irresistible and subject to no controul. In England, from whence most of our legal principles and legislative notions are derived, the authority of the Parliament is transcendant and has no bounds. The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, Si antiquitatem species, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima. It has sovereign and uncontroulable authority in the making, confirming, enlarging, restraining, abrogating repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: This being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of there kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the Parliament doth, no authority upon earth can undo. (1 Bl. Com. 160.) From this passage it is evident, that, in England, the authority of the Parliament runs without limits, and rises above controul. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humour or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendant; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void. In the second article of the Declaration of Rights, which was made part of the late Constitution of Pennsylvania, it is declared: That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding; and that no man ought or of right can be compelled, to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent; nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship; and that no authority can, or ought to be, vested in, or assumed, by any power whatever, that shall, in any case, interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship. (Dec. of Rights, Art. 2.) In the thirty-second section of the same Constitution, it is ordained; that all elections, whether by the people or in general assembly, shall be by ballot, free and voluntary. (Const. Penn. sect. 32.) Could the Legislature have annulled these articles, respecting religion, the rights of conscience, and elections by ballot? Surely no. As to these points there was no devolution of power; the authority was purposely withheld, and reserved by the people to themselves. If the Legislature had passed an act declaring, that, in future, there should be no trial by Jury, would it have been obligatory? No: It would have been void for want of jurisdiction, or constitutional extent of power. The right of trial by Jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away. The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immoveable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the raging of the waves. I take it to be a clear position; that if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but co-ordinate, branch of the government. Having made these preliminary observations, we shall proceed to contemplate the quieting and confirming act, and to bring its validity to the test of the Constitution. In the course of argument, the counsel on both sides relied upon certain parts of the late Bill of Rights and Constitution of Pennsylvania, which I shall now read, and then refer to them occasionally in the sequel of the charge. (The Judge then read the 1st. 8th. and 11th articles of the Declaration of Rights; and the 9th. and 46th sections of the Constitution of Pennsylvania. See 1 Vol. Dall. Edit. Penn. Laws p. 55. 6. 60. in the Appendix.) From these passages it is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact, and, by the late Constitution of Pennsylvania, was made a fundamental law. Every person ought to contribute his proportion for public purposes and public exigencies; but no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompence in value. This would be laying a burden upon an individual, which ought to be sustained by the society at large. The English history does not furnish an instance of the kind; the Parliament, with all their boasted omnipotence, never committed such an outrage on private property; and if they had, it would have served only to display the dangerous nature of unlimited authority; it would have been an exercise of power and not of right. Such an act would be a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation. It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with the comfort, peace, and happiness of mankind; it is contrary to the principles of social alliance in every free government; and lastly, it is contrary both to the letter and spirit of the Constitution. In short, it is what every one would think unreasonable and unjust in his own case. The next step in the line of progression is, whether the Legislature had authority to make an act, divesting one citizen of his freehold and vesting it in another, even with compensation. That the Legislature, on certain emergencies, had authority to exercise this high power, has been urged from the nature of the social compact, and from the words of the Constitution, which says, that the House of Representatives shall have all other powers necessary for the Legislature of a free state or commonwealth; but they shall have no power to add to, alter, abolish, or infringe any part of this Constitution. The course of reasoning, on the part of the defendant, may be comprized in a few words. The despotic power, as it is aptly called by some writers, of taking private property, when state necessity requires, exists in every government; the existence of such power is necessary; government could not subsist without it; and if this be the case, it cannot be lodged any where with so much safety as with the Legislature. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first necessity. There is force in this reasoning. It is, however, difficult to form a case, in which the necessity of a state can be of such a nature, as to authorise or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen. It is immaterial to the state, in which of its citizens the land is vested; but it is of primary importance, that, when vested, it should be secured, and the proprietor protected in the enjoyment of it. The constitution encircles, and renders it an holy thing. We must, gentlemen, bear constantly in mind, that the present is a case of landed property; vested by law in one set of citizens, attempted to be divested, for the purpose of vesting the same property in another set of citizens. It cannot be assimilated to the case of personal property taken or used in time of war or famine, or other extreme necessity; it cannot be assimilated to the temporary possession of land itself, on a pressing public emergency, or the spur of the occasion. In the latter case there is no change of property, no divestment of right; the title remains, and the proprietor, though out of possession for a while, is still proprietor and lord of the soil. The possession grew out of the occasion and ceases with it: Then the right of necessity is satisfied and at an end; it does not affect the title, is temporary in its nature, and cannot exist forever. The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. It is sacred; for, it is further declared, that the legislature shall have no power to add to, alter, abolish, or infringe any part of, the constitution. The constitution is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no further. Not a particle of it should be shaken; not a pebble of it should be removed. Innovation is dangerous. One incroachment leads to another; precedent gives birth to precedent; what has been done may be done again; thus radical principles are generally broken in upon, and the constitution eventually destroyed. Where is the security, where the inviolability of property, if the legislature, by a private act, affecting particular persons only, can take land from one citizen, who acquired it legally, and vest it in another? The rights of private property are regulated, protected, and governed by general, known, and established laws; and decided upon, by general, known, and established tribunals; laws and tribunals not made and created on an instant exigency, on an urgent emergency, to serve a present turn, or the interest of a moment. Their operation and influence are equal and universal; they press alike on all. Hence security and safety, tranquillity and peace. One man is not afraid of another, and no man afraid of the legislature. It is infinitely wiser and safer to risk some possible mischiefs, than to vest in the legislature so unnecessary, dangerous, and enormous a power as that which has been exercised on the present occasion; a power, that, according to the full extent of the argument, is boundless and omnipotent: For, the legislature judged of the necessity of the case, and also of the nature and value of the equivalent. Such a case of necessity, and judging too of the compensation, can never occur in any nation. Singular, indeed, and untoward must be the state of things, that would induce the Legislature, supposing they had the power, to divest one individual of his landed estate merely for the purpose of vesting it in another, even upon full indemnification; unless that indemnification be ascertained in the manner which I shall mention hereafter. But admitting, that the Legislature can take the real estate of A. and give it to B. on making compensation, the principle and reasoning upon it go no further than to shew, that the Legislature are the sole and exclusive judges of the necessity of the case, in which this despotic power should be called into action. It cannot, on the principles of the social alliance, or of the Constitution, be extended beyond the point of judging upon every existing case of necessity. The Legislature declare and enact, that such are the public exigencies, or necessities of the State, as to authorise them to take the land of A. and give it to B. the dictates of reason and the eternal principles of justice, as well as the sacred principles of the social contract, and the Constitution, direct, and they accordingly declare and ordain, that A. shall receive compensation for the land. But here the Legislature must stop; they have run the full length of their authority, and can go no further; they cannot constitutionally determine upon the amount of the compensation, or value of the land. Public exigencies do not require, necessity does not demand, that the Legislature should, of themselves, without the participation of the proprietor, or intervention of a jury, assets the value of the thing, or ascertain the amount of the compensation to be paid for it. This can constitutionally be affected only in three ways. 1. By the parties — that is, by stipulation between the Legislature and proprietor of the land. 2. By commissioners mutually elected by the parties. 3. By the intervention of a Jury. The compensatory part of the act lies in the ninth section. And whereas the late proprietaries, and divers other persons have heretofore acquired titles to parcels of the land aforesaid, agreeably to the laws and usages of Pennsylvania, and who will be deprived thereof by the operation of this act, and as justice requires, that compensation be made for the lands, of which they shall be thus divested; and as the State is possessed of other lands, in which an equivalent may be rendered to the claimants under Pennsylvania, and as it will be necessary, that their claims should be ascertained by a proper examination: Be it therefore enacted, by the authority aforesaid, That all persons having such claims to lands, which will be affected by the operation of this act, shall be, and they are hereby required, by themselves, guardians, or other lawful agents, within twelve months from the passing of this act, to present the same to the Board of Property, therein clearly describing those lands, and stating the grounds of their claims, and also adducing the proper proofs, not only of their titles, but of the situations, qualities, and values of the lands so claimed, to enable the Board to judge of the validity of their claims, and of the quantities of vacant lands proper to be granted as equivalents. And for every claim, which shall be admitted by said Board, as duly supported, the equivalent, by them allowed, may be taken either in the old or new purchase, at the option of the claimant; and warrants, and patents, and all other acts of the public offices relating thereto, shall be performed free of expence. The said Board shall also allow such a quantity of vacant land, to be added to such equivalent, as shall, in their judgment, be equal to the expences, which must necessarily be incurred in locating and surveying the same. And that the Board of Property may, in every case obtain satisfactory evidence of the quality and value of the land, which shall be claimed as aforesaid, under the proprietary title, they may require the commissioners aforesaid, during their sitting in the County of Luzerne, to make the necessary enquiries, by the oaths or affirmations of lawful witnesses, to ascertain those points; and it shall be the duty of the said commissioners to enquire and report accordingly. (Act of Penn. 28th March 1789. sect. 9.) In this section two things are worthy of consideration. 1. The mode or manner, in which compensation for the lands is to be ascertained. 2. The nature of the compensation itself. The Pennsylvania claimants are directed to present their claims to the Board of Property — and what is the Board to do thereupon? Why, it is,
+2. To ascertain, by the aid and through the medium of commissioners, appointed by the Legislature, the quality and value of the land. 3. To judge of the quantity of vacant land to be granted as an equivalent. This is not the constitutional line of procedure. I have already observed, that there are but three modes, in which matters of this kind can be conducted consistently with the principles and spirit of the Constitution, and social alliance. The first of which is by the parties, that is to say, by the Legislature and proprietor of the land. Of this the British history presents an illustrious example in the case of the Isle of Man. The distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue (it affording a commodious asylum for debtors, outlaws, and smugglers) authority was given to the treasury, by statute 12. Geo. l.c. 28, to purchase the interest of the then proprietors for the use of the Crown; which purchase was at length compleated in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 38, whereby the whole island and all its dependencies, so granted as aforesaid (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of bishopricks, and other ecclesiastical benefices) are unalienably vested in the Crown, and subjected to the regulations of the British excise and customs. 1 Bl. Com. 107. Shame to American legislation! That in England, a limited monarchy, where there is no written constitution, where the Parliament is omnipotent, and can mould the Constitution at pleasure, a more sacred regard should have been paid to property, than in America, surrounded as we are with a blaze of political illumination; where the Legislatures are limited; where we have republican governments, and written Constitutions, by which the protection and enjoyment of property are rendered inviolable. The case of the Isle of Man was a fair and honorable stipulation; it partook of the spirit and effence of a contract; it was free and mutual; and was treating with the proprietors on equal terms. But if the business cannot be effected in this way, then the value of the land, intended to be taken, should be ascertainary commissioners, or persons mutually elected by the parties, of by the intervention of the Judiciary, of which a Jury is a component part. In the first case, we approximate nearly to a contract; because the will of the party, whose property is to be affected, is in some degree exercised; he has a choice; his own act co-operates with that of the Legislature. In the other case, there is the intervention of a court of law, or, in other words, a jury is to pass between the public and the individual, who, after hearing the proofs and allegations of the parties, will, by their verdict, fix the value of the property, or the sum to be paid for it. The compensation, if not agreed upon by the parties or their agents, must be ascertained by a jury. The interposition of a jury is, in such case, a constitutional guard upon property, and a necessary check to legislative authority. It is a barrier between the individual and the legislature, and ought never to be removed; as long as it is preserved, the rights of private property will be in no danger of violation, except in cases of absolute necessity, or great public utility. By the confirming act, the value of the land taken, and the value of the land to be paid in recompense, are to be ascertained by the Board of Property. And who are the persons that constitute this board? Men appointed by one of the parties, by the Legislature only. The person, whose property is to be divested and valued, had no volition, no choice, no co-operation in the appointment; and besides, the other constitutional guard upon property, that of a jury, is removed and done away. The Board of Property thus constituted, are authorised to decide upon the value of the land to be taken, and upon the value of the land to be given by way of equivalent, without the participation of the party, or the intervention of a jury.
+By the act the equivalent is to be in land. No just compensation can be made except in money. Money is a common standard, by comparison with which the value of any thing may be ascertained. It is not only a sign which represents the respective values of commodities, but is an universal medium, easily portable, liable to little variation, and readily exchanged for any kind of property. Compensation is a recompence in value, a quid pro quo, and must be in money. True it is, that land or any thing else may be a compensation, but then it must be at the election of the party; it cannot be forced upon him. His consent will legalise the act, and make it valid; nothing short of it will have the effect. It is obvious, that if a jury pass upon the subject; or value of the property, their verdict must be in money. To close this part of the disclosure: It is contended that the Legislature must judge of the necessity of interposing their despotic authority; it is a right of necessity upon which no other power in government can decide: That no civil institution is perfect; and that cases will occur, in which private property must yield to urgent calls of public utility or general danger. Be it so. But then it must be upon complete indemnification to the individual. Agreed: But who shall judge of this? Did there also exist a state necessity, that the Legislature, or persons solely appointed by them, must admeasure the compensation, or value of the lands seized and taken, and the validity of the title thereto? Did a third state necessity exist, that the proprietor must take land by way of equivalent for his land? And did a fourth state necessity exist, that the value of this land-equivalent must be adjusted by the board of property, without the consent of the party, or the interference of a Jury? Alas! how necessity begets necessity. They rise upon each other and become endless. The proprietor stands afar off, a solitary and unprotected member of the community, and is stript of his property, without his consent, without a hearing, without notice, the value of that property judged upon without his participation, or the intervention of a Jury, and the equivalent therefor in lands ascertained in the same way. If this be the Legislation of a Republican Government, in which the preservation of property is made sacred by the Constitution, I ask, wherein it differs from the mandate of an Asiatic Prince? Omnipotence in Legislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the Legislature. Wretched situation, precarious tenure! And yet we boast of property and its security, of Laws, of Courts, of Constitutions, and call ourselves free! In short, gentlemen, the confirming act is void; it never had Constitutional existence; it is a dead letter, and of no more virtue or avail, than if it never had been made. II. But, admitting the confirming act to be Constitutional and valid, the next subject of enquiry is, what is its operation, or, in other words, what construction ought to be put upon it. It is contended, on the part of the defendant, that on the passing of the act, the estate was divested from the Pennsylvania claimants, and instantly vested in the Connecticut settlers. To decide upon this question, it will not be amiss to lay down a rule or two of exposition, applicable to the act under consideration. A statute shall never have an equitable construction in order to overthrow or divest an estate. Every statute, derogatory to the rights of property, or that takes away the estate of a citizen, ought to be construed strictly. Let us test this act by the foregoing rules. The act is entitled, An act, for ascertaining and confirming to certain persons, called Connecticut claimants, the lands by them claimed within the county of Luzerne, and for other purposes therein mentioned, and was passed the 28th of March, 1787. The first five sections, being material in the discussion of this part of the subject, run in the following words. (Here the Judge read the Law.) The act requires, That the Connecticut settlers shall prefer their claims to the commissioners. That they shall support their claims by reasonable proof. That the commissioners shall adjudicate upon or confirm the claims. That they shall have the lots, to which claims are set up and admitted, surveyed; that they shall make return of their surveys and their book of entries to the Supreme Executive Council, who shall cause patents to be issued for their confirmation, and each patent shall comprehend all the parcels of land, which are to be confirmed to the same claimant, to whom, by the return of the commissioners, the same shall be found to belong. The mere offering or presenting of the claim is not sufficient. It must be supported by reasonable proof, and ascertained, and established by the Commissioners. There acts must be performed before the estate passes out of the Pennsylvania claimants, and is vested in the Connecticut settlers. They are antecedent acts, and in nature of a condition precedent. Now conditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim, that where the estate is to arise upon a condition precedent, it cannot vest till that condition is performed; and this has been so strongly adhered to, that even where the condition has become impossible, no estate or interest grew thereupon. Where a condition copulative precedes an estate, the whole must be performed before the estate can arise; or where an act is previous to any estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect. Co. Lit. 206, 218. 1 Atk. 374. 376. Com Rep. 732. The estate of the Pennsylvania claimants was not divested on the passing of the act; it was not divested on presenting the claim on the part of the Connecticut settlers. Other acts were previously necessary, and, in particular, the commissioners must pass upon and confirm the claim, before the estate is divested from the one party and vested in the other. These things precede, and must be done before any estate can vest in the defendant; but they have not been done, and therefore the estate remains in the plaintiff. This construction corresponds with the meaning and spirit, the tendency and scope, of the act itself. The intention of the Legislature was to vest in Connecticut claimants of a particular description a perfect estate to certain lands in the County of Luzerne; but then it was upon condition; it was to operate upon, secure, and sanctify, such claims only as should be admitted and ascertained, approved and established, by the Commissioners. This is further evident from the powers and functions of the commissioners, who were to enquire, examine, hear proofs, &c. respecting the claims; and for what purpose? Why, that they might admit and approve of such as were supported by satisfactory evidence, and make return thereof to the Executive Council, who should thereupon cause patents to be issued for their confirmation. Until the commissioners had decided in favor of a claim, it remained in statu quo; the act did not cover and protect it. Further, if the act will admit of two constructions, that one certainly ought to be adopted, which is in favor of the legal owner, and which will not divest his estate, till the terms specified in the act shall have been fully complied with. When the Legislature undertake to give away what is not their own, when they attempt to take the property of one man, which he fairly acquired, and the general law of the land protects, in order to transfer it to another, even upon complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical exactness, and scrutinized with all the severity of legal exposition. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of private property. Besides, it was the manifest intention of the makers of the act, that a just compensation should be made in land, to the Pennsylvania claimants; upon this principle the act proceeds; and therefore, if it appear, that such compensation cannot be made, or that it is very dubious, whether it can be effected, the Court ought not to give such a construction, as will deprive the owner of his estate, with little or no prospect of being recompensed in value. If either party ought to be driven to the necessity of controverting the question with the state of Pennsylvania, it ought to be the Connecticut settlers, who have no legal title to the land, and not the Pennsylvania claimants, in whom is vested a good estate at law. Deeming the construction, which has been put upon the act, to be the found one, it precludes the enquiry, how far a patent of confirmation was necessary to substantiate the claim of the defendant, so as to render it available in a court of common law.",The title which the defendant sets up under Pennsylvania.
+363,1303466,2,1,"2. To ascertain, by the aid and through the medium of commissioners, appointed by the Legislature, the quality and value of the land. 3. To judge of the quantity of vacant land to be granted as an equivalent. This is not the constitutional line of procedure. I have already observed, that there are but three modes, in which matters of this kind can be conducted consistently with the principles and spirit of the Constitution, and social alliance. The first of which is by the parties, that is to say, by the Legislature and proprietor of the land. Of this the British history presents an illustrious example in the case of the Isle of Man. The distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue (it affording a commodious asylum for debtors, outlaws, and smugglers) authority was given to the treasury, by statute 12. Geo. l.c. 28, to purchase the interest of the then proprietors for the use of the Crown; which purchase was at length compleated in the year 1765, and confirmed by statutes 5 Geo. III. c. 26 and 38, whereby the whole island and all its dependencies, so granted as aforesaid (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of bishopricks, and other ecclesiastical benefices) are unalienably vested in the Crown, and subjected to the regulations of the British excise and customs. 1 Bl. Com. 107. Shame to American legislation! That in England, a limited monarchy, where there is no written constitution, where the Parliament is omnipotent, and can mould the Constitution at pleasure, a more sacred regard should have been paid to property, than in America, surrounded as we are with a blaze of political illumination; where the Legislatures are limited; where we have republican governments, and written Constitutions, by which the protection and enjoyment of property are rendered inviolable. The case of the Isle of Man was a fair and honorable stipulation; it partook of the spirit and effence of a contract; it was free and mutual; and was treating with the proprietors on equal terms. But if the business cannot be effected in this way, then the value of the land, intended to be taken, should be ascertainary commissioners, or persons mutually elected by the parties, of by the intervention of the Judiciary, of which a Jury is a component part. In the first case, we approximate nearly to a contract; because the will of the party, whose property is to be affected, is in some degree exercised; he has a choice; his own act co-operates with that of the Legislature. In the other case, there is the intervention of a court of law, or, in other words, a jury is to pass between the public and the individual, who, after hearing the proofs and allegations of the parties, will, by their verdict, fix the value of the property, or the sum to be paid for it. The compensation, if not agreed upon by the parties or their agents, must be ascertained by a jury. The interposition of a jury is, in such case, a constitutional guard upon property, and a necessary check to legislative authority. It is a barrier between the individual and the legislature, and ought never to be removed; as long as it is preserved, the rights of private property will be in no danger of violation, except in cases of absolute necessity, or great public utility. By the confirming act, the value of the land taken, and the value of the land to be paid in recompense, are to be ascertained by the Board of Property. And who are the persons that constitute this board? Men appointed by one of the parties, by the Legislature only. The person, whose property is to be divested and valued, had no volition, no choice, no co-operation in the appointment; and besides, the other constitutional guard upon property, that of a jury, is removed and done away. The Board of Property thus constituted, are authorised to decide upon the value of the land to be taken, and upon the value of the land to be given by way of equivalent, without the participation of the party, or the intervention of a jury.",To judge of the validity of their claims.
+364,1303466,2,2,"By the act the equivalent is to be in land. No just compensation can be made except in money. Money is a common standard, by comparison with which the value of any thing may be ascertained. It is not only a sign which represents the respective values of commodities, but is an universal medium, easily portable, liable to little variation, and readily exchanged for any kind of property. Compensation is a recompence in value, a quid pro quo, and must be in money. True it is, that land or any thing else may be a compensation, but then it must be at the election of the party; it cannot be forced upon him. His consent will legalise the act, and make it valid; nothing short of it will have the effect. It is obvious, that if a jury pass upon the subject; or value of the property, their verdict must be in money. To close this part of the disclosure: It is contended that the Legislature must judge of the necessity of interposing their despotic authority; it is a right of necessity upon which no other power in government can decide: That no civil institution is perfect; and that cases will occur, in which private property must yield to urgent calls of public utility or general danger. Be it so. But then it must be upon complete indemnification to the individual. Agreed: But who shall judge of this? Did there also exist a state necessity, that the Legislature, or persons solely appointed by them, must admeasure the compensation, or value of the lands seized and taken, and the validity of the title thereto? Did a third state necessity exist, that the proprietor must take land by way of equivalent for his land? And did a fourth state necessity exist, that the value of this land-equivalent must be adjusted by the board of property, without the consent of the party, or the interference of a Jury? Alas! how necessity begets necessity. They rise upon each other and become endless. The proprietor stands afar off, a solitary and unprotected member of the community, and is stript of his property, without his consent, without a hearing, without notice, the value of that property judged upon without his participation, or the intervention of a Jury, and the equivalent therefor in lands ascertained in the same way. If this be the Legislation of a Republican Government, in which the preservation of property is made sacred by the Constitution, I ask, wherein it differs from the mandate of an Asiatic Prince? Omnipotence in Legislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the Legislature. Wretched situation, precarious tenure! And yet we boast of property and its security, of Laws, of Courts, of Constitutions, and call ourselves free! In short, gentlemen, the confirming act is void; it never had Constitutional existence; it is a dead letter, and of no more virtue or avail, than if it never had been made. II. But, admitting the confirming act to be Constitutional and valid, the next subject of enquiry is, what is its operation, or, in other words, what construction ought to be put upon it. It is contended, on the part of the defendant, that on the passing of the act, the estate was divested from the Pennsylvania claimants, and instantly vested in the Connecticut settlers. To decide upon this question, it will not be amiss to lay down a rule or two of exposition, applicable to the act under consideration. A statute shall never have an equitable construction in order to overthrow or divest an estate. Every statute, derogatory to the rights of property, or that takes away the estate of a citizen, ought to be construed strictly. Let us test this act by the foregoing rules. The act is entitled, An act, for ascertaining and confirming to certain persons, called Connecticut claimants, the lands by them claimed within the county of Luzerne, and for other purposes therein mentioned, and was passed the 28th of March, 1787. The first five sections, being material in the discussion of this part of the subject, run in the following words. (Here the Judge read the Law.) The act requires, That the Connecticut settlers shall prefer their claims to the commissioners. That they shall support their claims by reasonable proof. That the commissioners shall adjudicate upon or confirm the claims. That they shall have the lots, to which claims are set up and admitted, surveyed; that they shall make return of their surveys and their book of entries to the Supreme Executive Council, who shall cause patents to be issued for their confirmation, and each patent shall comprehend all the parcels of land, which are to be confirmed to the same claimant, to whom, by the return of the commissioners, the same shall be found to belong. The mere offering or presenting of the claim is not sufficient. It must be supported by reasonable proof, and ascertained, and established by the Commissioners. There acts must be performed before the estate passes out of the Pennsylvania claimants, and is vested in the Connecticut settlers. They are antecedent acts, and in nature of a condition precedent. Now conditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim, that where the estate is to arise upon a condition precedent, it cannot vest till that condition is performed; and this has been so strongly adhered to, that even where the condition has become impossible, no estate or interest grew thereupon. Where a condition copulative precedes an estate, the whole must be performed before the estate can arise; or where an act is previous to any estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect. Co. Lit. 206, 218. 1 Atk. 374. 376. Com Rep. 732. The estate of the Pennsylvania claimants was not divested on the passing of the act; it was not divested on presenting the claim on the part of the Connecticut settlers. Other acts were previously necessary, and, in particular, the commissioners must pass upon and confirm the claim, before the estate is divested from the one party and vested in the other. These things precede, and must be done before any estate can vest in the defendant; but they have not been done, and therefore the estate remains in the plaintiff. This construction corresponds with the meaning and spirit, the tendency and scope, of the act itself. The intention of the Legislature was to vest in Connecticut claimants of a particular description a perfect estate to certain lands in the County of Luzerne; but then it was upon condition; it was to operate upon, secure, and sanctify, such claims only as should be admitted and ascertained, approved and established, by the Commissioners. This is further evident from the powers and functions of the commissioners, who were to enquire, examine, hear proofs, &c. respecting the claims; and for what purpose? Why, that they might admit and approve of such as were supported by satisfactory evidence, and make return thereof to the Executive Council, who should thereupon cause patents to be issued for their confirmation. Until the commissioners had decided in favor of a claim, it remained in statu quo; the act did not cover and protect it. Further, if the act will admit of two constructions, that one certainly ought to be adopted, which is in favor of the legal owner, and which will not divest his estate, till the terms specified in the act shall have been fully complied with. When the Legislature undertake to give away what is not their own, when they attempt to take the property of one man, which he fairly acquired, and the general law of the land protects, in order to transfer it to another, even upon complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical exactness, and scrutinized with all the severity of legal exposition. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of private property. Besides, it was the manifest intention of the makers of the act, that a just compensation should be made in land, to the Pennsylvania claimants; upon this principle the act proceeds; and therefore, if it appear, that such compensation cannot be made, or that it is very dubious, whether it can be effected, the Court ought not to give such a construction, as will deprive the owner of his estate, with little or no prospect of being recompensed in value. If either party ought to be driven to the necessity of controverting the question with the state of Pennsylvania, it ought to be the Connecticut settlers, who have no legal title to the land, and not the Pennsylvania claimants, in whom is vested a good estate at law. Deeming the construction, which has been put upon the act, to be the found one, it precludes the enquiry, how far a patent of confirmation was necessary to substantiate the claim of the defendant, so as to render it available in a court of common law.",The nature of the compensation.
+365,1303466,1,4,"This act was passed the 29th of March, 1788, and is as follows. (Here the Judge read the act at large.) This act was passed before the adoption of the Constitution of the United States, and therefore is not affected by it. If the Legislature had authority to make the confirming act, they had, also, authority to suspend it. Their Constitutional power reached to both, or to neither. By the act of the 28th of March 1787, the commissioners were to ascertain and confirm the claims of the Connecticut settlers, upon the doing whereof the estate, if the law was Constitutional, would become vested in them. This has not been done; the claim in the present instance has not been ascertained and confirmed; and as this act suspends or revokes these ascertaining and confirming powers, it never can be done. Of course, there is an end of the business. The parties are placed on their original ground; they are restored to their pristine situation. IV. After the opinion delivered on the preceeding questions, it is not necessary to determine upon the validity of the repealing law. But it being my intention in this charge to decide upon all the material points in the cause, in order that the whole may, at once, be carried before the Supreme Judicature for revision, I shall detain you, gentlemen, a few mintutes only, while I just touch upon the Constitutionality of the repealing act. This act was passed the 1st of April 1790: The repealing part is as follows. (Here the Judge read the 1st and 2d sections of the act. See 2 Vol. Dall. Edit. Penn. Laws. p. 786.) This act was made after the adoption of the Constitution of the United States, and the argument is, that it is contrary to it:
+
+1. That it is an ex post facto law. But what is the fact? If making a law be a fact within the words of the Constitution, then no law, when once made, can ever be repealed. Some of the Connecticut settlers presented their claims to the commissioners, who received and entered them. These are facts. But are they facts of any avail? Did they give any right or vest any estate? No — whether done or not done, they leave the parties just where they were. They create no interest, affect no title, change no property, when done they are useless and of no efficacy. Other acts were necessary to be performed, but before the performance of them, the law was suspended and then repealed. 2. It impairs the obligation of a contract, and is therefore void. If the property to the lands in question had been vested in the State of Pennsylvania, then the Legislature would have had the liberty and right of disposing or granting them to whom they pleased, at any time, and in any manner. Over public property they have a disposing and controlling power, over private property they have none, except, perhaps, in certain cases, and those under restrictions, and except also, what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents. But if the confirming act be a contract between the Legislature of Pennsylvania and the Connecticut settlers, it must be regulated by the rules and principles, which pervade and govern all cases of contracts; and if so, it is clearly void, because it tends, in its operation and consequences, to defraud the Pennsylvania claimants, who are third persons, of their just rights; rights ascertained, protected, and secured by the Constitution and known laws of the land. The plaintiff's title to the land in question, is legally derived from Pennsylvania; how then, on the principles of contract, could Pennsylvania lawfully dispose of it to another? As a contract, it could convey no right, without the owner's consent; without that, it was fraudulent and void. I shall close the discourse with a brief recapitulation of its leading points. 1. The confirming act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is precisely in the same state, as if it had not been made. If so, the plaintiff's title remains in full force. 2. If the confirming act is constitutional, the conditions of it have not been performed; and, therefore, the estate continues in the plaintiff.
+
+The result is, that the plaintiff is, by law, entitled to recover the premises in question, and of course to your verdict. Verdict for the Plaintiff. []",The nature and operation of the suspending act.
+366,1303466,2,2,"1. That it is an ex post facto law. But what is the fact? If making a law be a fact within the words of the Constitution, then no law, when once made, can ever be repealed. Some of the Connecticut settlers presented their claims to the commissioners, who received and entered them. These are facts. But are they facts of any avail? Did they give any right or vest any estate? No — whether done or not done, they leave the parties just where they were. They create no interest, affect no title, change no property, when done they are useless and of no efficacy. Other acts were necessary to be performed, but before the performance of them, the law was suspended and then repealed. 2. It impairs the obligation of a contract, and is therefore void. If the property to the lands in question had been vested in the State of Pennsylvania, then the Legislature would have had the liberty and right of disposing or granting them to whom they pleased, at any time, and in any manner. Over public property they have a disposing and controlling power, over private property they have none, except, perhaps, in certain cases, and those under restrictions, and except also, what may arise from the enactment and operation of general laws respecting property, which will affect themselves as well as their constituents. But if the confirming act be a contract between the Legislature of Pennsylvania and the Connecticut settlers, it must be regulated by the rules and principles, which pervade and govern all cases of contracts; and if so, it is clearly void, because it tends, in its operation and consequences, to defraud the Pennsylvania claimants, who are third persons, of their just rights; rights ascertained, protected, and secured by the Constitution and known laws of the land. The plaintiff's title to the land in question, is legally derived from Pennsylvania; how then, on the principles of contract, could Pennsylvania lawfully dispose of it to another? As a contract, it could convey no right, without the owner's consent; without that, it was fraudulent and void. I shall close the discourse with a brief recapitulation of its leading points. 1. The confirming act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is precisely in the same state, as if it had not been made. If so, the plaintiff's title remains in full force. 2. If the confirming act is constitutional, the conditions of it have not been performed; and, therefore, the estate continues in the plaintiff.",Because it is a law impairing the obligation of a contract
+367,1303466,2,4,"The result is, that the plaintiff is, by law, entitled to recover the premises in question, and of course to your verdict. Verdict for the Plaintiff. []",Repealed.
+368,110252,1,3,"The Interim Agreement of October 12, 1956, between the United States and Louisiana, referred to in this Court's Final Decree of December 12, 1960, see 364 U. S., at 503, came into being after the Court, on June 11, 1956, had provided: IT IS FURTHER ORDERED that the State of Louisiana and the United States of America are enjoined from leasing or beginning the drilling of new wells in the disputed tidelands area pending further order of this Court unless by agreement of the parties filed here. 351 U. S. 978. The Interim Agreement recites that the parties desire to provide for the impoundment of . . . sums . . . payable under mineral leases in the disputed area, pending the final settlement or adjudication of the said controversy. App. to Reply Brief for Louisiana 9a. It divided the submerged lands off the Louisiana coast into four zones therein described. The zone contiguous to the coastline was designated as Zone 1, the next most seaward as Zone 2, the next as Zone 3, and the most seaward as Zone 4. Id., at 10a-11a. It described the area comprising Zones 2 and 3 as the disputed area, id., at 11a, and it conferred upon the United States (with certain exceptions) the responsibility for collecting receipts from the disputed zones, id., at 26a-27a. By ¶ 7 (a), the United States agreed (with exclusions not material here) to impound in a separate fund in the Treasury of the United States a sum equal to all . . . payments heretofore or hereafter paid to it for and on account of each lease, or part thereof, in Zones 2 and 3. Id., at 14a. Certain other payments were to be impounded by Louisiana. Paragraph 9 of the agreement then provides: [T]he impounded funds provided for herein shall be held intact, in a separate account for each lease or portion thereof affected, by each party until title to the area affected is determined. Whereupon, except as otherwise herein provided: ..... (b) Any funds derived from an area finally determined to be owned by the State of Louisiana [with an exception not here material] shall be taken from the separate and impounded fund in the Treasury of the United States provided for herein, and paid to the appropriate officer of Louisiana. Id., at 18a-19a. Pursuant to these provisions of the Interim Agreement, the United States collected and retained payments on mineral leases for operations within the designated disputed area. As a consequence of the first supplemental decree, entered December 13, 1965, see 382 U. S., at 293, the United States paid Louisiana some $34 million of impounded funds. Indeed, with an additional payment of some $136 million in 1975, pursuant to the supplemental decree of June 16, 1975, see 422 U. S., at 14-15, all payments due Louisiana from the funds impounded by the United States have been made. But the United States has not paid Louisiana any interest on the funds so impounded, and has not made any payment for the use of those funds while they were held in the United States Treasury. Louisiana asserts a claim for such interest, apparently approximating $88 million, or for the value of the use of the money during the period of impoundment, and the United States resists these claims. Louisiana's position is at least fourfold: (1) The impoundment provisions of the Interim Agreement implied a trust that imposed on the United States the fiduciary duty of a trustee in its handling of the impounded funds. It is said that an escrow arrangement in fact was established. The presence of a trust is evident from the conduct and relationship of the parties, from documentary evidence, and from admissions by federal officials. (2) The United States used Louisiana's money for its own purposes and without authority under the Interim Agreement. The funds were deposited in the general account of the Treasurer of the United States where they were available, and used, to meet cash needs of the Federal Government. (3) The United States had the duty to invest the impounded funds for the benefit of both parties. This duty is implied from the provisions of the agreement; is imposed upon the United States as a trustee as a matter of law; was breached by the refusal of the United States to honor a request by Louisiana to invest the funds; is supported by the provisions of 31 U. S. C. § 547a to the effect that [a]ll funds held in trust by the United States . . . shall be invested in interest-bearing securities; and is not limited by the supplemental decree of June 16, 1975. (4) Equitable remedies to prevent the unjust enrichment of the United States at the expense of Louisiana are appropriate. We find no merit in any of Louisiana's contentions. The Interim Agreement provided only that the payments made to the United States on each lease within the disputed area were to be impounded in a separate fund in the Treasury of the United States and, upon determination of the ownership of the land, were to be taken from that separate and impounded fund and paid to the party entitled to them. The agreement contains no express provision for the payment of interest or for the use of the funds or for investment. Neither do we find anything in the agreement's use of the word impound or, indeed, in Louisiana's characterization of the arrangement as an escrow (a word that does not appear in the agreement), that implies an obligation on the part of the United States to pay interest or to pay for the use of the money. The word impound, in its application to funds, means to take or retain in the custody of the law. Black's Law Dictionary 681 (5th ed., 1979); Bouvier's Law Dictionary 1515 (8th ed., 1914). That obligation, as is an escrow, is to hold and deliver property intact. What actually happened here, of course, was that, as the funds were paid to the United States, the lessees' checks were cashed and the resulting cash was commingled with general funds of the Treasury and used in governmental operations. A separate account, No. 14X6709, nonetheless, was established on the books of the Treasury for these payments, and a credit entry covered every receipt from the disputed area. The United States did not stockpile that inflowing cash in a far corner of the Government vaults. But the special account was maintained and it accurately recorded the increasing potential liability of the United States to Louisiana. This was much more than a recordkeeping device. The receipts were never treated as governmental revenues. The recognition of a contingent liability, corresponding to the cash deposited, enabled the United States to make prompt payment to Louisiana without special congressional authorization or appropriation. There was no proof or even suggestion that at any time there were insufficient funds in the United States Treasury to pay any amount that might be determined to be due Louisiana from the impoundment. Apart from constitutional requirements, in the absence of specific provision by contract or statute, or express consent . . . by Congress, interest does not run on a claim against the United States. Smyth v. United States, 302 U. S. 329, 353 (1937); Albrecht v. United States, 329 U. S. 599, 605 (1947); United States v. N. Y. Rayon Importing Co., 329 U. S. 654, 658-659 (1947). See also 28 U. S. C. § 2516. It follows that the same is true as to any claim of duty to invest. We are persuaded, also, that the omission, in the Interim Agreement, of any provision for interest was a conscious one. When the agreement was signed in 1956, almost $60 million in disputed revenues already had accumulated. The importance of any interest obligation was obvious. And pertinent here is the fact that two of Louisiana's negotiators candidly conceded that they did not insist on an interest clause because they knew the United States would not agree to one. Tr. 70, 95, 98, 99, 102, 103, 163. Nor does Louisiana's intimation that it was willing to pass the matter in silence because the agreement was expected to be short lived carry weight. The agreement itself specified no term, and, in its ¶ 13, it provided for operations after a year had elapsed. We note, too, that Louisiana is not in a position to assert that it was unaware that the funds were not invested or that it did not know that the United States held itself not responsible for interest. The State received regular monthly reports of the amounts credited to the impounded account, as the agreement's ¶ 8 required. Those reports reflected no interest. Louisiana accepted the $34 million distribution, made pursuant to the 1965 decree, without complaint about the absence of interest. And communications flowed from officers of the State and its representatives in Congress, suggesting the deposit of some of the funds in Louisiana banks, presumably so that they might enjoy the free use of those funds. The Louisiana Legislature, it is true, on June 6, 1967, by House Concurrent Resolution No. 251, did call upon the United States to take such steps as are necessary to effect a prudent and effective investment of the funds now and hereafter so impounded. See 1967 Louisiana Legislative Calendar 161-162. The quoted language, however, was only precatory and suggestive; it was not demanding. At most, it amounted to a request for a change of status. A Treasury official, pleading absence of authority, promptly returned a negative answer. In fact, Louisiana apparently never took the position that it was entitled to interest upon, or payment for the use of, its share of the impounded funds until 1975 when it filed its objections to the accounting. And Louisiana made no request for modification of the Interim Agreement. The State thus acquiesced for two decades. We conclude that the United States fulfilled the obligations imposed upon it by the agreement; that the impoundment served its intended purpose; that there is no liability on the part of the United States for interest or for the use of the funds; and that the United States has no further obligation for payment beyond those it has performed.",The First Stated Issue
+369,110252,1,4,"This issue concerns money paid to Louisiana by oil and gas lessees since 1950 in respect to Zone 1 areas now adjudicated to the United States. Louisiana asserts a right permanently to retain that money. The amount involved is some $19 million. [2] During the past three decades these federal lands have been administered by Louisiana. Before the Interim Agreement of 1956, Louisiana acted unilaterally in leasing those areas; after that date, it acted with the acquiescence of the United States given by the agreement. The Special Master concluded that, by permitting Louisiana to administer Zone 1, the United States waived its rights to demand an accounting of, and payment with respect to, the revenues derived from its lands in the Zone. The Master did acknowledge that the very opposite result would certainly be the case in the absence of any adjudication or agreement between the parties to the contrary. Supplemental Report 15. He found a waiver on the part of the United States, however, that centered in a provision of the Outer Continental Shelf Lands Act, 43 U. S. C. § 1336, which he read as foreclosing the federal claim to the money. He noted that the Interim Agreement contained no specific language regarding payments derived from leases on areas lying within Zone 1 or Zone 4, although it did with respect to revenues derived from leases on areas lying within Zones 2 and 3. He stressed ¶ 6 of the agreement, which provided that notwithstanding any adverse claim, Louisiana, as to any area in Zone 1 (and the United States, as to any area in Zone 4), shall have exclusive supervision and administration, and may issue new leases and authorize the drilling of new wells and other operations without notice to or obtaining the consent of the other party. App. to Reply Brief for Louisiana 14a. Louisiana, in fact, collected rentals on mineral leases on areas in Zone 1. The United States did not question Louisiana's right to do so. The Master observed that Louisiana anticipated the possibility that some portions of Zone 1, upon which it granted leases, might ultimately be adjudged to belong to the United States, for it inserted in almost all the leases a provision to the effect that it was granting the right to extract minerals only from those parts of the leasehold areas owned by Louisiana. The conclusion the Master drew was that Louisiana was entitled to keep all rentals derived prior to the entry of the supplemental decree of June 16, 1975, from leases upon areas lying within Zone 1, and that the United States had no right to recover them. We are constrained to disagree with the Special Master on this issue. We accept the submission of the United States that the ground rules of the controversy were laid down in 1950. The Court's very first decree, issued December 11, 1950, specified, 340 U. S., at 900, that the United States was entitled to an accounting from Louisiana of all sums derived by the State from lands adjudicated to the United States. This was a principle laid down independently of the not-yet-enacted Submerged Lands Act and Outer Continental Shelf Lands Act. The principle had its roots in the Court's decision in United States v. California, 332 U. S. 19 (1947). The Submerged Lands Act of 1953 did not change the ground rules. It released and confirmed a coastal belt to the coastal States, and the United States thereby release[d] and relinquishe[d] all claims of the United States . . . for money . . . arising out of [past] operations within the belt. 43 U. S. C. § 1311 (b) (1). For areas seaward of that belt, however, the States' obligation to account and pay remained unchanged. This Court's decision of May 31, 1960, in the second suit, was unambiguous on this matter, and the Court made plain the continued vitality of the original ground rules. 363 U. S., at 7, 83, and n. 140. The cited footnote stated flatly: On June 5, 1950, the date of this Court's decision in the Louisiana and Texas cases, all coastal States were put on notice that the United States was possessed of paramount rights in submerged lands lying seaward of their respective coasts. . . . [T]he United States remains entitled to an accounting for all sums derived since June 5, 1950, from lands not so relinquished [by the Sub-merged Lands Act]. The preceding Interim Agreement of October 1956 was forced into being by continuing conflict, by an injunction obtained by Louisiana in its courts, and by the injunction issued by this Court on June 11, 1956. See 351 U. S. 978. As we have noted, the agreement divided the submerged lands into the four zones hereinabove described. The first, nearest the shore, was to be administered by Louisiana. The others were to be administered by the United States, except for certain leases already granted by Louisiana in Zone 2 and the requirement of state concurrence for any new leasing in that zone. Receipts from Zones 2 and 3 were to be impounded. No such impoundment obligation, however, was imposed on the United States with respect to Zone 4 or upon Louisiana with respect to Zone 1. It turned out that the seaward boundary of Louisiana's submerged lands, as finally determined, does not coincide with the line that divided Zones 1 and 2. The final boundary meanders back and forth across the agreement's line between those two Zones producing bulges on each side. Louisiana has been successful in some of its claims to lands within Zone 2, and the United States has accounted for and paid over funds received from those areas. Yet Louisiana denies any corresponding obligation to account for and pay over revenues it received from those portions of Zone 1 that the United States has successfully claimed. Louisiana asserts that the United States, by the Interim Agreement, waived and abandoned its right to revenues from Zone 1 during the life of the agreement. The agreement itself contains no express words of waiver. On the other hand, neither does it provide specifically for eventual repayment of any revenues from portions of Zone 1 ultimately adjudicated to the United States. But the agreement does recite: nor shall any provision hereof be the basis for . . . waiving in any manner any right, interest, claim, or demand whatsoever of either party now pending in the proceedings above referred to, or otherwise. App. to Reply Brief for Louisiana 9a. And it further recites that the baseline from which the several zones were measured had not been surveyed or finally fixed, and that no inference was to be drawn from the use of that baseline. Id., at 10a. These provisions of the agreement persuade us that each party specifically was reserving any monetary claims it might have outside Zones 2 and 3. It was to be expected, of course, that most of Zone 1 would ultimately be adjudicated to Louisiana. This fact accounts for the decision to permit the State to enjoy, for the interim, the revenues from that area. [3] The Outer Continental Shelf Lands Act was the complement of the Submerged Lands Act, for it provided in detail for the administration of federal submerged lands lying beyond those granted to the coastal States. It authorized an agreement with a State respecting operations under existing mineral leases and the issuance of new leases pending the settlement or adjudication of a controversy as to ultimate ownership. 43 U. S. C. § 1336. This provision is referred to in the Interim Agreement, and it is the one on which the Special Master focused his attention. The Master placed particular stress on the following sentence in the statute: Payments made pursuant to such agreement, or pursuant to any stipulation between the United States and a State, shall be considered as compliance with section 1335 (a) (4) of this title. The Master viewed the payments made by Louisiana's lessees in Zone 1 as governed by this language and concluded that any federal claim with respect to those payments was foreclosed. We do not so read that sentence. The provision, we feel, means no more than that a lessee is not in default so long as the agreement remains in effect and he makes the payments required by it. The Act protects the lessee. Whatever the lessee's ultimate obligation, if any, to the United States might turn out to be, there is no basis for reading into § 1336 a waiver by the United States of Louisiana's independent duty to account, or a waiver of any claim for money due the United States. The State's obligation does not derive from the Shelf Lands Act; it was imposed by this Court's 1950 decree, was not waived by the Interim Agreement, and is not excused by the quoted provision of the Shelf Lands Act. This conclusion is buttressed by the fact that until 1975 the actions of the parties and the rulings of this Court consistently indicate that this was the common understanding. The 1960 decree was prepared by the parties at the invitation of the Court. 363 U. S., at 85. The decree itself recognized that once the coastline was determined, Louisiana was to account and to pay. 364 U. S., at 503. The decree of December 13, 1965, although distinguishing between impounded and nonimpounded funds, contained no waiver of any obligation relating to receipts that were not impounded. 382 U. S., at 294. This Court's decision of March 17, 1975, 420 U. S. 529, and the implementing decree of June 16, 1975, 422 U. S. 13, recognized that in some places the true limit of Louisiana's submerged lands was shoreward of the Zone 1 line. That decree, also, was proposed by the parties at the invitation of the Court. 420 U. S., at 530. It declared rights divided by a specified boundary line which, in many places, did not correspond with the seaward edge of Zone 1. It required each party to account for and to pay over impounded revenues attributable to lands adjudicated to the other. 422 U. S., at 15-16. We see no reason to conclude that those accounting provisions were included only for informational purposes, rather than to spell out the parties' pecuniary obligations. [4]",The Second Stated Issue
+370,110310,2,1,"
+
+
+(4) Consolidated container loads of mail, household effects of a person who is relocating his place of residence, with no other type of cargo in the container, or personal effects of military personnel.",Export Cargo:
+371,110310,3,3,"(4) Consolidated container loads of mail, household effects of a person who is relocating his place of residence, with no other type of cargo in the container, or personal effects of military personnel.",Containers loaded with the cargo of a single manufacturer (manufacturer's label).
+372,110310,2,2,"
+
+(3) Consolidated container loads of mail, household effects of a person who is relocating his place of business, with no other type of cargo in the container, or personal effects of military personnel. (4) Containers of a qualified consignee discharged at a bona fide public warehouse within the geographic area which comply with all of the following conditions. 1. The container cargo is warehoused at a bona fide public warehouse. 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days, and; 3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consignee to another. The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or deconsolidator. Rule 3—Batching When an employer-member or carrier uses a trucker to remove or deliver containers in batches, or in substantial number, from or to a terminal to another place of rest (outside of its terminal) where containers are stored pending their delivery to a consignee (or after being received from a shipper and while waiting the arrival of a ship), for the purpose of reducing the work jurisdiction of the ILA or any of its crafts, such use is deemed to be batching and an evasion of these Rules in violation of the CONASA-ILA contract. Rule 4—Headload Where a single qualified shipper sends an export container which contains all of his own cargo to a waterfront facility and such container is not full, the carrier or direct employer may load this container with additional cargo at the waterfront facility. On import cargo, the carrier or direct employer may discharge any such additional cargo and send the remaining cargo in the container to the qualified consignee. The loading or discharging of cargo at ILA ports shall be performed at a waterfront facility by deepsea ILA labor. Rule 5—Overland Movement of Containers from CONASA Port to Non-CONASA Port If a carrier moves containers from a CONASA Port to a non-CONASA Port for the purpose of evading the Rules on Containers, the carrier is in violation of the CONASA-ILA Agreement. If the cargo is being moved to a non-CONASA-ILA Port in the normal course of business, and not for the purpose of evasion, then such movement is not a violation. Rule 6—Importers Advertising Evasion of Rules The circulation, in writing, by importers of methods developed by them to evade the Rules on Containers by issuing single bills of lading on what are in fact consolidated container loads shall be deemed a violation and all CONASA-ILA Container Committees shall be advised to stop such evasion at the waterfront facilities. Rule 7—No Avoidance or Evasion The above rules are intended to be fairly and reasonably applied by the parties. To obtain non-discriminatory and fair implementation of the above, the following principles shall apply: (a) Geographic Area—Agreement in the Port to the geographic area as provided in Rule 1 is based on present consolidated movement patterns in the port. Should any person, firm or corporation for the purpose of evading the provisions of the Rules on Containers, seek to change such pattern by shifting its operations to, or commencing new operations at, a point outside said agreed upon geographic area, then either party may raise the question whether said point should be included within the said geographic area, and upon agreement that the purpose of the shift in its operations was to evade the provisions of the Rules on Containers, then said point shall be deemed to be within the said geographic area for the purpose of these rules. (b) Containers Owned, Leased or Used—Containers owned, leased or used by companies which are affiliated either directly or through a holding company with a carrier or a direct employer shall be deemed to be containers owned, leased or used by a carrier or direct employer. Affiliation shall include subsidiaries and/or affiliates which are effectively controlled by the carrier or direct employer, its parent, or stockholders of either of them. (c) Liquidated Damages—Failure to load or discharge a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of Rule 1 and Rule 2 shall also be considered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been loaded or discharged under the Rules, then the carrier or its agent or direct employer shall pay, to the joint Container Royalty Fund, liquidated damages of $1,000 per container which should have been loaded or discharged. If any carrier does not pay liquidated damages within 30 days after exhausting its right to appeal the imposition of liquidated damages to the Committee provided in Rule 9 (a) below, the ILA shall have the right to stop working such carrier's containers until such damages are paid. (d) Any facility operated in violation of the Container Rules will not have service supplied to it by any direct employer and the ILA will not supply labor to such facility. Rule 8—Renegotiation and Cancellation—No Arbitration These Rules shall be in effect for the term of the CONASA-ILA Agreement, provided, however, that either party shall have the right to cancel the Rules on Containers at any time on or after December 1, 1974, on thirty (30) days written notice of a desire to renegotiate the provisions of these Rules. Negotiations shall be held during such thirty (30) day period and if the parties are unable to agree by the end of such period, these Rules shall be deemed cancelled. Thereafter, the ILA shall have the right to refuse to handle containers and CONASA shall have the right to refuse to hire employees under the said Rules. The negotiations referred to above shall, under no condition, be subject to the grievance or arbitration provisions of any CONASA-ILA Agreement. Rule 9—Enforcement of the Rules on Containers To assure effective, fair and non-discriminatory enforcement of the above Rules, the following regulations shall apply: (a) A Committee in each CONASA port represented equally by management and union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these Rules. Any inability to agree shall be processed as a grievance under the applicable contract except as limited by Rule 8 hereof. A joint committee, known as the CONASA-ILA Container Committee, represented equally by management and labor and made up of representatives (to be mutually agreed upon) from each CONASA Port, namely, Boston, Rhode Island, New York, Philadelphia, Baltimore and Hampton Roads shall meet at least quarterly each year for the purpose of insuring uniformity in the interpretation of these Rules. (b) A Committee of carriers, together with CONASA-ILA Container Committee will develop uniform documentation which shall be required to be prepared and maintained by all carriers in order to readily identify all Rule 1 containers which are subject to loading or discharging by deepsea ILA labor. It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container, which shall be loaded or discharged. If a container's documentation is not clearly marked, it shall be deemed a Rule 1 container and it shall be loaded or discharged by deepsea ILA labor at the waterfront facility. With respect to all containers received at or delivered from the waterfront facility, a record of the same shall be made by ILA Checkers or Clerks. All carriers will distribute to all other carriers any and all information and devices which are being used by any person to circumvent the Rules on Containers. Any carrier whose attention is brought to a violation of the Rules shall immediately cease such violation and report the matter to the appropriate CONASA-ILA Container Committee and to the policing agency provided in (e) below in its port. (c) Every import container destined to a point within 50-miles of a CONASA Port shall be delivered only on a delivery order. Every export container coming from a point within 50-miles of a CONASA Port shall be received only on a dock/cargo receipt. Such delivery orders and dock/cargo receipts shall certify the place of delivery and origin of the container, the name or names of the person to whom the cargo is being delivered and from which it is shipped, the identity of the owner of the cargo, weight of the cargo, identity of the cargo and the origin and final destination of the container. Copies of such delivery orders and dock/cargo receipts shall be available to the local port Container Committee and the policing agency provided for in (e) below. (d) The Container Committee in each CONASA Port shall promulgate to all carriers and direct employers, and to the Container Committees in each CONASA Port, any and all interpretations of the Rules on Containers as and when they are made. This will include uniform interpretations as and when they are issued. The CONASA-ILA Container Committee shall also promulgate uniform interpretations to local port Container Committees, as and when they are issued. (e) Policing Agency—Each CONASA Port shall establish a method of policing and enforcing these Rules on a uniform and non-discriminatory basis. No such method shall be implemented until presented to and approved by the joint CONASA-ILA Container Committee. Rule 10—Container Royalty Payments The two Container Royalty payments required by the CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that ILA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port (foreign sea-to-foreign-sea containers) are exempt from the payment of container royalties.",Import Cargo:
+373,110310,3,2,"(3) Consolidated container loads of mail, household effects of a person who is relocating his place of business, with no other type of cargo in the container, or personal effects of military personnel. (4) Containers of a qualified consignee discharged at a bona fide public warehouse within the geographic area which comply with all of the following conditions. 1. The container cargo is warehoused at a bona fide public warehouse. 2. The qualified consignee pays the normal labor charges in and out; and the normal warehouse storage fees for a minimum period of thirty or more days, and; 3. The cargo being warehoused (a) in the normal course of the business of the qualified consignee; (b) title to such goods has not been transferred from the qualified consignee to another. The carrier on request will furnish all documentation and other information which permits the Container Committee in the port to determine whether conditions 1, 2 and 3 have been met. This exception shall not apply where cargo is warehoused for the purpose of avoidance or evasion of Rule 1. It is limited to containers warehoused as provided in the above conditions and any warehouse which does not conform to such conditions shall be deemed a consolidator or deconsolidator. Rule 3—Batching When an employer-member or carrier uses a trucker to remove or deliver containers in batches, or in substantial number, from or to a terminal to another place of rest (outside of its terminal) where containers are stored pending their delivery to a consignee (or after being received from a shipper and while waiting the arrival of a ship), for the purpose of reducing the work jurisdiction of the ILA or any of its crafts, such use is deemed to be batching and an evasion of these Rules in violation of the CONASA-ILA contract. Rule 4—Headload Where a single qualified shipper sends an export container which contains all of his own cargo to a waterfront facility and such container is not full, the carrier or direct employer may load this container with additional cargo at the waterfront facility. On import cargo, the carrier or direct employer may discharge any such additional cargo and send the remaining cargo in the container to the qualified consignee. The loading or discharging of cargo at ILA ports shall be performed at a waterfront facility by deepsea ILA labor. Rule 5—Overland Movement of Containers from CONASA Port to Non-CONASA Port If a carrier moves containers from a CONASA Port to a non-CONASA Port for the purpose of evading the Rules on Containers, the carrier is in violation of the CONASA-ILA Agreement. If the cargo is being moved to a non-CONASA-ILA Port in the normal course of business, and not for the purpose of evasion, then such movement is not a violation. Rule 6—Importers Advertising Evasion of Rules The circulation, in writing, by importers of methods developed by them to evade the Rules on Containers by issuing single bills of lading on what are in fact consolidated container loads shall be deemed a violation and all CONASA-ILA Container Committees shall be advised to stop such evasion at the waterfront facilities. Rule 7—No Avoidance or Evasion The above rules are intended to be fairly and reasonably applied by the parties. To obtain non-discriminatory and fair implementation of the above, the following principles shall apply: (a) Geographic Area—Agreement in the Port to the geographic area as provided in Rule 1 is based on present consolidated movement patterns in the port. Should any person, firm or corporation for the purpose of evading the provisions of the Rules on Containers, seek to change such pattern by shifting its operations to, or commencing new operations at, a point outside said agreed upon geographic area, then either party may raise the question whether said point should be included within the said geographic area, and upon agreement that the purpose of the shift in its operations was to evade the provisions of the Rules on Containers, then said point shall be deemed to be within the said geographic area for the purpose of these rules. (b) Containers Owned, Leased or Used—Containers owned, leased or used by companies which are affiliated either directly or through a holding company with a carrier or a direct employer shall be deemed to be containers owned, leased or used by a carrier or direct employer. Affiliation shall include subsidiaries and/or affiliates which are effectively controlled by the carrier or direct employer, its parent, or stockholders of either of them. (c) Liquidated Damages—Failure to load or discharge a container as required under these rules will be considered a violation of the contract between the parties. Use of improper, fictitious or incorrect documentation to evade the provisions of Rule 1 and Rule 2 shall also be considered a violation of the contract. If for any reason a container is no longer at the waterfront facility at which it should have been loaded or discharged under the Rules, then the carrier or its agent or direct employer shall pay, to the joint Container Royalty Fund, liquidated damages of $1,000 per container which should have been loaded or discharged. If any carrier does not pay liquidated damages within 30 days after exhausting its right to appeal the imposition of liquidated damages to the Committee provided in Rule 9 (a) below, the ILA shall have the right to stop working such carrier's containers until such damages are paid. (d) Any facility operated in violation of the Container Rules will not have service supplied to it by any direct employer and the ILA will not supply labor to such facility. Rule 8—Renegotiation and Cancellation—No Arbitration These Rules shall be in effect for the term of the CONASA-ILA Agreement, provided, however, that either party shall have the right to cancel the Rules on Containers at any time on or after December 1, 1974, on thirty (30) days written notice of a desire to renegotiate the provisions of these Rules. Negotiations shall be held during such thirty (30) day period and if the parties are unable to agree by the end of such period, these Rules shall be deemed cancelled. Thereafter, the ILA shall have the right to refuse to handle containers and CONASA shall have the right to refuse to hire employees under the said Rules. The negotiations referred to above shall, under no condition, be subject to the grievance or arbitration provisions of any CONASA-ILA Agreement. Rule 9—Enforcement of the Rules on Containers To assure effective, fair and non-discriminatory enforcement of the above Rules, the following regulations shall apply: (a) A Committee in each CONASA port represented equally by management and union shall be formed and shall have the responsibility and power to hear and pass judgment on any violations of these Rules. Any inability to agree shall be processed as a grievance under the applicable contract except as limited by Rule 8 hereof. A joint committee, known as the CONASA-ILA Container Committee, represented equally by management and labor and made up of representatives (to be mutually agreed upon) from each CONASA Port, namely, Boston, Rhode Island, New York, Philadelphia, Baltimore and Hampton Roads shall meet at least quarterly each year for the purpose of insuring uniformity in the interpretation of these Rules. (b) A Committee of carriers, together with CONASA-ILA Container Committee will develop uniform documentation which shall be required to be prepared and maintained by all carriers in order to readily identify all Rule 1 containers which are subject to loading or discharging by deepsea ILA labor. It shall be the obligation of employer-members to clearly mark each container's documentation as to whether or not it is a Rule 1 container, which shall be loaded or discharged. If a container's documentation is not clearly marked, it shall be deemed a Rule 1 container and it shall be loaded or discharged by deepsea ILA labor at the waterfront facility. With respect to all containers received at or delivered from the waterfront facility, a record of the same shall be made by ILA Checkers or Clerks. All carriers will distribute to all other carriers any and all information and devices which are being used by any person to circumvent the Rules on Containers. Any carrier whose attention is brought to a violation of the Rules shall immediately cease such violation and report the matter to the appropriate CONASA-ILA Container Committee and to the policing agency provided in (e) below in its port. (c) Every import container destined to a point within 50-miles of a CONASA Port shall be delivered only on a delivery order. Every export container coming from a point within 50-miles of a CONASA Port shall be received only on a dock/cargo receipt. Such delivery orders and dock/cargo receipts shall certify the place of delivery and origin of the container, the name or names of the person to whom the cargo is being delivered and from which it is shipped, the identity of the owner of the cargo, weight of the cargo, identity of the cargo and the origin and final destination of the container. Copies of such delivery orders and dock/cargo receipts shall be available to the local port Container Committee and the policing agency provided for in (e) below. (d) The Container Committee in each CONASA Port shall promulgate to all carriers and direct employers, and to the Container Committees in each CONASA Port, any and all interpretations of the Rules on Containers as and when they are made. This will include uniform interpretations as and when they are issued. The CONASA-ILA Container Committee shall also promulgate uniform interpretations to local port Container Committees, as and when they are issued. (e) Policing Agency—Each CONASA Port shall establish a method of policing and enforcing these Rules on a uniform and non-discriminatory basis. No such method shall be implemented until presented to and approved by the joint CONASA-ILA Container Committee. Rule 10—Container Royalty Payments The two Container Royalty payments required by the CONASA-ILA collective bargaining agreements shall be payable only once in the Continental United States. They shall be paid in that ILA Port where the container is first handled by ILA longshore labor at longshore rates. The second container royalty payment (provided by paragraph 6 of the 1971-1974 CONASA-ILA Memorandum of Agreement) shall be continued and shall be used for fringe benefit purposes only, other than supplemental cash benefits, which purposes are to be determined locally on a port by port basis. Containers originating at a foreign port which are transshipped at a United States port for ultimate destination to another foreign port (foreign sea-to-foreign-sea containers) are exempt from the payment of container royalties.",Containers discharged at a qualified consignee's facility by its own employees.
+374,109968,1,2,"
+The federal establishments named in Art. II, subdivision (D), paragraphs (1), (3), (4), and (5) of the Decree entered March 9, 1964, in this case such rights having been decreed by Art. II: Annual Diversions Net Priority Defined Area of Land (acre-feet) [5] Acres [5] Date ____________________ ________________ __________ _________ 22) Chemehuevi Indian Reservation 11,340 1,900 Feb. 2, 1907 23) Yuma Indian Reservation 51,616 7,743 Jan. 9, 1884 24) Colorado River Indian Reservation 10,745 1,612 Nov. 22, 1873 40,241 6,037 Nov. 16, 1874 3,760 564 May 15, 1876 25) Fort Mojave Indian Reservation 13,698 2,119 Sept. 18, 1890
+26) The Palo Verde Irrigation District in annual quantities not to exceed (i) 219,780 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 33,604 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1877. 27) The Imperial Irrigation District in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901. 28) The Reservation Division, Yuma Project, California (non-Indian portion) in annual quantities not to exceed (i) 38,270 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 6,294 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
+1. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of diversions from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed: Annual Diversions Priority Defined Area of Land (acre-feet) Date ____________________ ___________ _________ 29) 130 acres within Lots 1, 2, and 3, SE 1/4 of 780 1856 NE 1/4 of Section 27, T.16S., R.22E., S.B.B. & M. (Wavers) [6] Annual Diversions Priority Defined Area of Land (acre-feet) Date ____________________ ___________ ________ 30) 40 acres within W 1/2, W 1/2 of E 1/2 of Section 1, 240 1923 T.9N., R.22E., S.B.B. & M. (Stephenson)6a 31) 20 acres within Lots 1 and 2, Sec. 19, T.13S., 120 1893 R.23E., and Lots 2, 3, and 4 of Sec. 24, T.13S., R.22E., S.B.B. & M. (Mendivil)6a 32) 30 acres within NW 1/4 of SE 1/4, S 1/2 of SE 1/4, 180 1928 Sec. 24, and NW 1/4 of NE 1/4, Sec. 25, all in T.9S., R.21E., S.B.B. & M. (Grannis)6a 33) 25 acres within Lot 6, Sec. 5; and Lots 1 and 2, 150 1913 SW 1/4 of NE 1/4, and NE 1/4 of SE 1/4 of Sec. 8, and Lots 1 & 2 of Sec. 9, all in T.13S., R.22E., S.B.B. & M. (Morgan)6a 34) 18 acres within E 1/2 of NW 1/4 and W 1/2 of 108 1918 NE 1/4 of Sec. 14, T.10S., R.21E., S.B.B. & M. (Milpitas)6a 35) 10 acres within N 1/2 of NE 1/4, SE 1/4 of NE 1/4, 60 1889 and NE 1/4 of SE 1/4, Sec. 30, T.9N., R.23E., S.B.B. & M. (Simons)6a 36) 16 acres within E 1/2 of NW 1/4 and N 1/2 of 96 1921 SW 1/4, Sec. 12, T.9N., R.22E., S.B.B. & M. (Colo. R. Sportsmen's League)6a 37) 11.5 acres within E 1/2 of NW 1/4, Sec. 1, T.10S., 69 1914 R.21E., S.B.B. & M. (Milpitas)6a 38) 11 acres within S 1/2 of SW 1/4, Sec. 12, T.9N., 66 1921 R.22E., S.B.B. & M. (Andrade)6a 39) 6 acres within Lots 2, 3, and 7 and NE 1/4 of 36 1904 SW 1/4, Sec. 19, T.9N., R.23E., S.B.B. & M. (Reynolds)6a Annual Diversions Priority Defined Area of Land (acre-feet) Date ____________________ ___________ _________ 40) 10 acres within N 1/2 of NE 1/4, SE 1/4 of NE 1/4 60 1905 and NE 1/4 of SE 1/4, Sec. 24, T.9N., R.22E., S.B.B & M. (Cooper)6b 41) 20 acres within SW 1/4 of SW 1/4 (Lot 8), Sec. 19, 120 1925 T.9N., R.23E., S.B.B. & M. (Chagnon) [7] 42) 20 acres within NE 1/4 of SW 1/4, N 1/2 of SE 1/4, 120 1915 SE 1/4 of SE 1/4, Sec. 14, T.9S., R.21E., S.B.B. & M. (Lawrence) [7] 2. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed: Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ____________________ ___________ ___________ _________ 43) City of Needles6b 1,500 950 1885 44) Portions of: Secs. 5, 6, 7 & 8, T.7N., 1,260 273 1896 R.24E.; Sec. 1, T.7N., R.23E.; Secs. 4, 5, 9, 10, 15, 22, 23, 25, 26, 35, & 36, T.8N., R.23E.; Secs. 19, 29, 30, 32 & 33, T.9N., R.23E., S.B.B. & M. (Atchison, Topeka and Santa Fe Railway Co.)6b 45) Lots 1, 2, 3, 4, 5, & SW 1/4 NW 1/4 of 1.0 0.6 1921 Sec. 5, T.13S., R.22E., S.B.B. & M. (Conger) [7] Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ____________________ ___________ ___________ ________ 46) Lots 1, 2, 3, 4 of Sec. 32, T.11S., R.22E., 1.0 0.6 1923 S.B.B. & M. (G. Draper)7a 47) Lots 1, 2, 3, 4, and SE 1/4 SW 1/4 of Sec. 1.0 0.6 1919 20, T.11S., R.22E., S.B.B. & M. (McDonough)7a 48) SW 1/4 of Sec. 25, T.8S., R.22E., S.B.B. 1.0 0.6 1925 & M. (Faubion)7a 49) W 1/2 NW 1/4 of Sec. 12, T.9N., R.22E., 1.0 0.6 1922 S.B.B. & M. (Dudley)7a 50) N 1/2 SE 1/4 and Lots 1 and 2 of Sec. 13, 1.0 0.6 1916 T.8S., R.22E., S.B.B. & M. (Douglas)7a 51) N 1/2 SW 1/4, NW 1/4 SE 1/4, Lots 6 and 7, 1.0 0.6 1924 Sec. 5, T.9S., R.22E., S.B.B. & M. (Beauchamp)7a 52) NE 1/4 SE 1/4, SE 1/4 NE 1/4, and Lot 1, 1.0 0.6 1916 Sec. 26, T.8S., R.22E., S.B.B. & M. (Clark)7a 53) N 1/2 SW 1/4, NW 1/4 SE 1/4, SW 1/4 NE 1/4, 1.0 0.6 1915 Sec. 13, T.9S., R.21E., S.B.B. & M. (Lawrence)7a 54) N 1/2 NE 1/4, E 1/2 NW 1/4, Sec. 13, T.9S., 1.0 0.6 1914 R.21E., S.B.B. & M. (J. Graham)7a 55) SE 1/4, Sec. 1, T.9S., R.21E., S.B.B. & M. 1.0 0.6 1910 (Geiger)7a Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ____________________ ___________ ___________ ________ 56) Fractional W 1/2 of SW 1/4 (Lot 6) Sec. 1.0 0.6 1917 6, T.9S., R.22E., S.B.B. & M. (Schneider)7b 57) Lot 1, Sec. 15; Lots 1 & 2, Sec. 14; 1.0 0.6 1895 Lots 1 & 2, Sec. 23; all in T.13S., R.22E., S.B.B. & M. (Martinez)7b 58) NE 1/4, Sec. 22, T.9S., R.21E., S.B.B. & 1.0 0.6 1925 M. (Earle)7b 59) NE 1/4 SE 1/4, Sec. 22, T.9S., R.21E., 1.0 0.6 1928 S.B.B. & M. (Diehl)7b 60) N 1/2 NW 1/4, N 1/2 NE 1/4, Sec. 23, T.9S., 1.0 0.6 1912 R.21E., S.B.B. & M. (Reid)7b 61) W 1/2 SW 1/4, Sec. 23, T.9S., R.21E., 1.0 0.6 1916 S.B.B. & M. (Graham)7b 62) S 1/2 NW 1/4, NE 1/4 SW 1/4, SW 1/4 NE 1/4, 1.0 0.6 1919 Sec. 23, T.9S., R.21E., S.B.B. & M. (Cate)7b 63) SE 1/4 NE 1/4, N 1/2 SE 1/4, SE 1/4 SE 1/4, 1.0 0.6 1924 Sec. 23, T.9S., R.21E., S.B.B. & M. (McGee)7b 64) SW 1/4 SE 1/4, SE 1/4 SW 1/4, Sec. 23, NE 1/4 1.0 0.6 1924 NW 1/4, NW 1/4 NE 1/4, Sec. 26; all in T.9S., R.21E., S.B.B. & M. (Stallard)7b 65) W 1/2 SE 1/4, SE 1/4 SE 1/4, Sec. 26, T.9S., 1.0 0.6 1926 R.21E., S.B.B. & M. (Randolph)7b Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ____________________ ___________ ___________ _________ 66) E 1/2 NE 1/4, SW 1/4 NE 1/4, SE 1/4 NW 1/4, 1.0 0.6 1928 Sec. 26, T.9S., R.21E., S.B.B. & M. (Stallard)7c 67) S 1/2 SW 1/4, Sec. 13, N 1/2 NW 1/4, Sec. 1.0 0.6 1926 24; all in T.9S., R.21E., S.B.B. & M. (Keefe)7c 68) SE 1/4 NW 1/4, NW 1/4 SE 1/4, Lots 2, 3 & 1.0 0.6 1903 4, Sec. 25, T.13S., R.23E., S.B.B. & M. (C. Ferguson)7c 69) Lots 4 & 7, Sec. 6; Lots 1 & 2, Sec. 7; 1.0 0.6 1903 all in T.14S., R.24E., S.B.B. & M. (W. Ferguson)7c 70) SW 1/4 SE 1/4, Lots 2, 3, and 4, Sec. 24, 1.0 0.6 1920 T.12S., R.21E., Lot 2, Sec. 19, T.12S., R.22E., S.B.B. & M. (Vaulin)7c 71) Lots 1, 2, 3 and 4, Sec. 25, T.12S., 1.0 0.6 1920 R.21E., S.B.B. & M. (Salisbury)7c 72) Lots 2, 3, SE 1/4 SE 1/4, Sec. 15, NE 1/4 1.0 0.6 1924 NE 1/4, Sec. 22; all in T.13S., R.22E., S.B.B. & M. (Hadlock)7c 73) SW 1/4 NE 1/4, SE 1/4 NW 1/4, and Lots 7 1.0 0.6 1903 & 8, Sec. 6, T.9S., R.22E., S.B.B. & M. (Streeter)7c 74) Lot 4, Sec. 5; Lots 1 & 2, Sec. 7; Lots 1.0 0.6 1903 1 & 2, Sec. 8; Lot 1, Sec. 18; all in T.12S., R.22E., S.B.B. & M. (J. Draper)7c Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date ____________________ ___________ ___________ _________ 75) SW 1/4 NW 1/4, Sec. 5; SE 1/4 NE 1/4 and 1.0 0.6 1912 Lot 9, Sec. 6; all in T.9S., R.22E., S.B.B. & M. (Fitz)7d 76) NW 1/4 NE 1/4, Sec. 26; Lots 2 & 3, 1.0 0.6 1909 W 1/2 SE 1/4, Sec. 23; all in T.8S., R.22E., S.B.B. & M. (Williams)7d 77) Lots 1, 2, 3, 4, & 5, Sec. 25, T.8S., 1.0 0.6 1928 R.22E., S.B.B. & M. (Estrada)7d 78) S 1/2 NW 1/4, Lot 1, frac. NE 1/4 SW 1/4, 1.0 0.6 1925 Sec. 25, T.9S., R.21E., S.B.B. & M. (Whittle)7d 79) N 1/2 NW 1/4, Sec. 25; S 1/2 SW 1/4, Sec. 1.0 0.6 1928 24; all in T.9S., R.21E., S.B.B. & M. (Corington)7d 80) S 1/2 NW 1/4, N 1/2 SW 1/4, Sec. 24, T.9S., 1.0 0.6 1928 R.21E., S.B.B. & M. (Tolliver)7d",california
+375,109968,1,3,"
+The federal establishments named in Art. II, subdivision (D), paragraphs (5) and (6) of the Decree entered on March 9, 1964, in this case, such rights having been decreed by Art. II: Annual Diversions Net Priority Defined Area of Land (acre-feet) Acres Date ____________________ ___________ ___________ _________ 81) Fort Mojave Indian Reservation 12,534 [8] 1,939 [8] Sept. 18, 1890 82) Lake Mead National Recreation 500 300 [9] May 3, 1929 [10] Area (The Overton Area of Lake Mead N.R.A. provided in Executive Order 5105) It is ordered that Judge Elbert P. Tuttle be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate. The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and borne by the parties in such proportion as the Court may hereafter direct. It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, THE CHIEF JUSTICE shall have authority to make a new designation which shall have the same effect as if originally made by the Court. It is further ordered that the motion of Fort Mojave Indian Tribe et al. for leave to intervene, insofar as it seeks intervention to oppose entry of the supplemental decree, is denied. In all other respects, this motion and the motion of Colorado River Indian Tribes et al. for leave to intervene are referred to the Special Master. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.",nevada
+376,111819,1,2,"When a judgment or decree is entered or rendered for money, whether debt or damages, and the same has been stayed on appeal by the execution of bond, with surety, if the appellate court affirms the judgment of the court below, it must also enter judgment against all or any of the obligors on the bond for the amount of the affirmed judgment, 10 percent damages thereon and the costs of the appellate court . . . . Ala. Code § 12-22-72 (1986). [1] As set forth in the statute, then, a combination of three conditions will automatically trigger the 10% penalty: (1) the trial court must enter a money judgment or decree, (2) the judgment or decree must be stayed by the requisite bond, [2] and (3) the judgment or decree must be affirmed without substantial modification. E. g., Chapman v. Rivers Construction Co., 284 Ala. 633, 644-645, 227 So. 2d 403, 414-415 (1969). The purposes of the mandatory affirmance penalty are to penalize frivolous appeals and appeals interposed for delay, Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 684, 87 So. 205, 211 (1920), and to provide additional damages as compensation to the appellees for having to suffer the ordeal of defending the judgments on appeal. Birmingham v. Bowen, 254 Ala. 41, 46-47, 47 So. 2d 174, 179-180 (1950). Petitioner contends that the statute's underlying purposes and mandatory mode of operation conflict with the purposes and operation of Rule 38 of the Federal Rules of Appellate Procedure, and therefore that the statute should not be applied by federal courts sitting in diversity. Entitled Damages for delay, Rule 38 provides: If the court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. See also 28 U. S. C. § 1912. Under this Rule, damages are awarded by the court in its discretion in the case of a frivolous appeal as a matter of justice to the appellee and as a penalty against the appellant. Advisory Committee's Notes on Fed. Rule App. Proc. 38, 28 U. S. C. App., p. 492. In Hanna v. Plumer, 380 U. S. 460 (1965), we set forth the appropriate test for resolving conflicts between state law and the Federal Rules. The initial step is to determine whether, when fairly construed, the scope of Federal Rule 38 is sufficiently broad to cause a direct collision with the state law or, implicitly, to control the issue before the court, thereby leaving no room for the operation of that law. Walker v. Armco Steel Corp., 446 U. S. 740, 749-750, and n. 9 (1980); Hanna, supra, at 471-472. The Rule must then be applied if it represents a valid exercise of Congress' rulemaking authority, which originates in the Constitution and has been bestowed on this Court by the Rules Enabling Act, 28 U. S. C. § 2072. [3] Hanna, 380 U. S., at 471-474. The constitutional constraints on the exercise of this rulemaking authority define a test of reasonableness. Rules regulating matters indisputably procedural are a priori constitutional. Rules regulating matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either, also satisfy this constitutional standard. Id., at 472. The Rules Enabling Act, however, contains an additional requirement. The Federal Rule must not abridge, enlarge or modify any substantive right . . . . 28 U. S. C. § 2072. The cardinal purpose of Congress in authorizing the development of a uniform and consistent system of rules governing federal practice and procedure suggests that Rules which incidentally affect litigants' substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system of rules. See Hanna, supra, at 464-465; Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 445-446 (1946); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4509, pp. 145-146 (1982). Moreover, the study and approval given each proposed Rule by the Advisory Committee, the Judicial Conference, and this Court, and the statutory requirement that the Rule be reported to Congress for a period of review before taking effect, see 28 U. S. C. § 2072, give the Rules presumptive validity under both the constitutional and statutory constraints. See Hanna, supra, at 471. Applying the Hanna analysis to an analogous Mississippi statute which provides for a mandatory affirmance penalty, the United States Court of Appeals for the Fifth Circuit concluded in Affholder, Inc. v. Southern Rock, Inc., 746 F. 2d 305 (1984), that the statute conflicted with Rule 38 and thus was not applicable in federal diversity actions. [4] The Fifth Circuit discussed two aspects of the conflict: (1) the discretionary mode of operation of the Federal Rule, compared to the mandatory operation of the Mississippi statute, and (2) the limited effect of the Rule in penalizing only frivolous appeals or appeals interposed for purposes of delay, compared to the effect of the Mississippi statute in penalizing every unsuccessful appeal regardless of merit. Id., at 308-309. We find the Fifth Circuit's analysis persuasive. Rule 38 affords a court of appeals plenary discretion to assess just damages in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court's judgment. Thus, the Rule's discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama's affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute's field of operation so as to preclude its application in federal diversity actions. [5] Respondents argue that, because Alabama has a similar Appellate Rule which may be applied in state court alongside the affirmance penalty statute, see Ala. Rule App. Proc. 38; McAnnally v. Levco, Inc., 456 So. 2d 66, 67 (Ala. 1984), a federal court sitting in diversity could impose the mandatory penalty and likewise remain free to exercise its discretionary authority under Federal Rule 38. This argument, however, ignores the significant possibility that a court of appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court's judgment. Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court's exercise of discretion under Alabama's Rule 38, that Rule provides no authority for defining the scope of discretion allowed under Federal Rule 38. Federal Rule 38 regulates matters which can reasonably be classified as procedural, thereby satisfying the constitutional standard for validity. Its displacement of the Alabama statute also satisfies the statutory constraints of the Rules Enabling Act. The choice made by the drafters of the Federal Rules in favor of a discretionary procedure affects only the process of enforcing litigants' rights and not the rights themselves.",The Alabama statute provides in relevant part:
+377,112929,1,4,"It is settled law that some surplus land Acts diminished reservations, see, e. g., Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 (1977); DeCoteau v. District County Court, 420 U. S. 425 (1975), and other surplus land Acts did not, see, e. g., Mattz v. Arnett, 412 U. S. 481 (1973); Seymour v. Superintendent, 368 U. S. 351 (1962). The effect of any given surplus land Act depends on the language of the Act and the circumstances underlying its passage. 465 U. S., at 469. In determining whether a reservation has been diminished, [o]ur precedents in the area have established a fairly clean analytical structure, id., at 470, directing us to look to three factors. The most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands. Ibid. We have also considered the historical context surrounding the passage of the surplus land Acts, although we have been careful to distinguish between evidence of the contemporaneous understanding of the particular Act and matters occurring subsequent to the Act's passage. Id., at 471. Finally, [o]n a more pragmatic level, we have recognized that who actually moved onto opened reservation lands is also relevant to deciding whether a surplus land Act diminished a reservation. Ibid. Throughout the inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment. Id., at 470, 472; see also South Dakota v. Bourland, 508 U. S. 679, 687 (1993) (`[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit' (quoting County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 269 (1992) (internal quotation marks omitted))). The Solicitor General, appearing as amicus in support of petitioner, argues that our cases establish a clear-statement rule, pursuant to which a finding of diminishment would require both explicit language of cession or other language evidencing the surrender of tribal interests and an unconditional commitment from Congress to compensate the Indians. See Brief for United States as Amicus Curiae 7-8. We disagree. First, although the statutory language must establis[h] an express congressional purpose to diminish, Solem, 465 U. S., at 475, we have never required any particular form of words before finding diminishment, see Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 588, and n. 4 (1977). Second, we noted in Solem that a statutory expression of congressional intent to diminish, coupled with the provision of a sum certain payment, would establish a nearly conclusive presumption that the reservation had been diminished. 465 U. S., at 470-471. While the provision for definite payment can certainly provide additional evidence of diminishment, the lack of such a provision does not lead to the contrary conclusion. In fact, the statutes at issue in Rosebud, which we held to have effected a diminishment, did not provide for the payment of a sum certain to the Indians. See 430 U. S., at 596, and n. 18. We thus decline to abandon our traditional approach to diminishment cases, which requires us to examine all the circumstances surrounding the opening of a reservation.
+The operative language of the 1902 Act provided for allocations of reservation land to Indians, and that all the unallotted lands within said reservation shall be restored to the public domain.  32 Stat. 263 (emphasis added). The public domain was the land owned by the Government, mostly in the West, that was available for sale, entry, and settlement under the homestead laws, or other disposition under the general body of land laws. E. Peffer, The Closing of the Public Domain 6 (1951). [F]rom an early period in the history of the government it [was] the practice of the President to order, from time to time, . . . parcels of land belonging to the United States to be reserved from sale and set apart for public uses. Grisar v. McDowell, 6 Wall. 363, 381 (1868). This power of reservation was exercised for various purposes, including Indian settlement, bird preservation, and military installations, when it appeared that the public interest would be served by withdrawing or reserving parts of the public domain. United States v. Midwest Oil Co., 236 U. S. 459, 471 (1915). It follows that when lands so reserved were restored to the public domain— i. e., once again opened to sale or settlement—their previous public use was extinguished. See Sioux Tribe v. United States, 316 U. S. 317, 323 (1942) (President ordered lands previously reserved for Indian use `restored to the public domain[,] . . . the same being no longer needed for the purpose for which they were withdrawn from sale and settlement'); United States v. Pelican, 232 U. S. 442, 445-446 (1914). Statutes of the period indicate that Congress considered Indian reservations as separate from the public domain. See, e. g., Act of June 25, 1910, § 6, 36 Stat. 857 (criminalizing forest fires started upon the public domain, or upon any Indian reservation) (quoted in United States v. Alford, 274 U. S. 264, 266-267 (1927)). Likewise, in DeCoteau we emphasized the distinction between reservation and public domain lands: That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned . . . . The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the `public domain.' 420 U. S., at 446 (emphasis added). In Solem, the Court held that an Act which authorized the Secretary of the Interior to `sell and dispose of' unallotted reservation lands merely opened the reservation to non-Indian settlement and did not diminish it. 465 U. S., at 472-474. Elsewhere in the same statute, Congress had granted the Indians permission to harvest timber on the opened lands `as long as the lands remain part of the public domain.' Id., at 475. We recognized that this reference to the public domain support[ed] the view that a reservation had been diminished, but that it was hardly dispositive. Id., at 475. We noted that even without diminishment, unallotted opened lands could be conceived of as being in the `public domain' inasmuch as they were available for settlement. Id., at 475, n. 17. The Act in Solem, however, did not restore the lands to the public domain. More importantly, the reference to the public domain did not appear in the operative language of the statute opening the reservation lands for settlement, which is the relevant point of reference for the diminishment inquiry. Our cases considering operative language of restoration have uniformly equated it with a congressional purpose to terminate reservation status. In Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351 (1962), for example, the question was whether the Colville Reservation, in the State of Washington, had been diminished. The Court noted that an 1892 Act which `vacated and restored to the public domain' about one-half of the reservation lands had diminished the reservation as to that half. Id., at 354. As to the other half, Congress in 1906 had provided for allotments to the Indians, followed by the sale of mineral lands and entry onto the surplus lands under the homestead laws. This Court held that the 1906 Act did not result in diminishment: Nowhere in the 1906 Act is there to be found any language similar to that in the 1892 Act expressly vacating the South Half of the reservation and restoring that land to the public domain. Id., at 355. This Court subsequently characterized the 1892 Act at issue in Seymour as an example of Congress' using clear language of express termination when that result is desired. Mattz, 412 U. S., at 504, n. 22. And in Rosebud, all nine Justices agreed that a statute which `restored to the public domain' portions of a reservation would result in diminishment. 430 U. S., at 589, and n. 5; id., at 618 (Marshall, J., dissenting). In light of our precedents, we hold that the restoration of unallotted reservation lands to the public domain evidences a congressional intent with respect to those lands inconsistent with the continuation of reservation status. Thus, the existence of such language in the operative section of a surplus land Act indicates that the Act diminished the reservation. Indeed, we have found only one case in which a Federal Court of Appeals decided that statutory restoration language did not terminate a reservation, Ute Indian Tribe, 773 F. 2d, at 1092, a conclusion the Tenth Circuit has since disavowed as unexamined and unsupported. Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F. 2d 1387, 1400, cert. denied, 498 U. S. 1012 (1990). Until the Ute Indian Tribe litigation in the Tenth Circuit, every court had decided that the unallotted lands were restored to the public domain pursuant to the terms of the 1902 Act, with the 1905 Act simply extending the time for opening and providing for a few details. Hanson v. United States, 153 F. 2d 162, 162-163 (CA10 1946); United States v. Boss, 160 F. 132, 133 (Utah 1906); Uintah and White River Bands of Ute Indians v. United States, 139 Ct. Cl. 1, 21-23 (1957); Sowards v. Meagher, 108 P. 1112, 1114 (Utah 1910). Petitioner argues, however, that the 1905 Act changed the manner in which the lands were to be opened. That Act specified that the homestead and townsite laws would apply, and so superseded the restore to the public domain language of the 1902 Act, language that was not repeated in the 1905 Act. We disagree, because the baseline intent to diminish the reservation expressed in the 1902 Act survived the passage of the 1905 Act. Every congressional action subsequent to the 1902 Act referred to that statute. The 1902 Joint Resolution provided an appropriation prior to the restoration of surplus reservation lands to the public domain. 32 Stat. 744. The 1903 and 1904 Acts simply extended the deadline for opening the reservations in order to allow more time for surveying the lands, so that the purposes of the 1902 Act could be carried out. 32 Stat. 997; 33 Stat. 207. And the 1905 Act recognized that they were all tied together when it provided that the proceeds of the sale of the unallotted lands shall be applied as provided in the [1902 Act] and the Acts amendatory thereof and supplementary thereto. 33 Stat. 1070. The Congress that passed the 1905 Act clearly viewed the 1902 statute as the basic legislation upon which subsequent Acts were built. Furthermore, the structure of the statutes requires that the 1905 Act and the 1902 Act be read together. Whereas the 1905 Act provided for the disposition of unallotted lands, it was the 1902 Act that provided for allotments to the Indians. The 1902 Act also established the price for which the unallotted lands were to be sold, and what was to be done with the proceeds of the sales. The 1905 Act did not repeat these essential features of the opening, because they were already spelled out in the 1902 Act. The two statutes—as well as those that came in between—must therefore be read together. Finally, the general rule that repeals by implication are disfavored is especially strong in this case, because the 1905 Act expressly repealed the provision in the 1903 Act concerning the siting of the grazing lands; if Congress had meant to repeal any part of any other previous statute, it could easily have done so. Furthermore, the predicate for finding an implied repeal is not present in this case, because the opening provisions of the two statutes are not inconsistent: The 1902 Act also provided that the unallotted lands restored to the public domain could be sold pursuant to the homestead laws. Other surplus land Acts which we have held to have effected diminishment similarly provided for initial entry under the homestead and townsite laws. See Rosebud, supra, at 608; DeCoteau, 420 U. S., at 442.
+Contemporary historical evidence supports our conclusion that Congress intended to diminish the Uintah Reservation. As we have noted, the plain language of the 1902 Act demonstrated the congressional purpose to diminish the Uintah Reservation. Under the 1902 Act, however, the consent of the Indians was required before the reservation could be diminished; that consent was withheld by the Indians living on the reservation. After this Court's Lone Wolf decision in 1903, Congress authorized the Secretary of the Interior to proceed unilaterally. The Acting Commissioner for Indian Affairs in the Department of the Interior directed Indian Inspector James McLaughlin to travel to the Uintah Reservation to endeavor to obtain [the Indians'] consent to the allotment of lands as provided in the law, and to the restoration of the surplus lands. Letter from A. C. Tonner to James McLaughlin (Apr. 27, 1903), reprinted in S. Doc. No. 159, 58th Cong., 3d Sess., 9 (1905). The Acting Commissioner noted, however, that the effect of the 1903 Act was that if the [Indians] do not consent to the allotments by the first of June next the allotments are to be made notwithstanding, and the unallotted lands . . . are to be opened to entry according to the terms of the 1902 Act. Id., at 8-9. Inspector McLaughlin explained the effect of these recent developments to the Indians living on the Reservation: `By that decision of the Supreme Court, Congress has the legal right to legislate in regard to Indian lands, and Congress has enacted a law which requires you to take your allotments. . . . . . `You say that [the Reservation boundary] line is very heavy and that the reservation is nailed down upon the border. That is very true as applying to the past many years and up to now, but congress has provided legislation which will pull up the nails which hold down that line and after next year there will be no outside boundary line to this reservation. ' Minutes of Councils Held by James McLaughlin, U. S. Indian Inspector, with the Uintah and White River Ute Indians at Uintah Agency, Utah, from May 18 to May 23, 1903, excerpted in App. to Brief for Respondent 4a-5a (emphasis added). Inspector McLaughlin's picturesque phrase reflects the contemporaneous understanding, by him conveyed to the Indians, that the reservation would be diminished by operation of the 1902 and 1903 Acts notwithstanding the failure of the Indians to give their consent. The Secretary of the Interior informed Congress in February 1904 that the necessary surveying could not be completed before the date set for the opening, and requested that the opening be delayed. Letter from E. A. Hitchcock to the Chairman of the Senate Committee on Indian Affairs (Feb. 6, 1904), reprinted in S. Doc. No. 159, supra, at 17. In the 1904 Act, Congress accordingly extended the time for opening until March 10, 1905, and appropriated additional funds to enable the Secretary of the Interior to do the necessary surveying of the reservation lands. 33 Stat. 207. The Secretary of the Interior subsequently informed Congress that a further extension would be necessary because the surveying and allotments could not be completed during the winter. Letter from E. A. Hitchcock to the Chairman of the House Committee on Indian Affairs (Dec. 10, 1904), reprinted in S. Doc. No. 159, supra, at 21. The House of Representatives took up the matter on January 21, 1905. The bill on which debate was held provided that so much of said lands as will be under the provisions of said acts restored to the public domain shall be open to settlement and entry by proclamation of the President of the United States, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered. H. R. 17474, quoted in 39 Cong. Rec. 1180 (1905). Representative Howell of Utah offered as an amendment [t]hat for one year immediately following the restoration of said lands to the public domain said lands shall be subject to entry only under the homestead, town-site, and mining laws of the United States. Ibid. Significantly, Representative Howell offered his amendment as an addition to, not a replacement for, the language in the bill that explicitly referred to the lands' restoration to the public domain. He explained: In the pending bill these lands, when restored to the public domain, are subject to entry under the general land laws of the United States, coupled with such rules and regulations as the President may prescribe. In my humble judgment there should be some provision such as is embodied in my amendment, limiting the lands in the reservation to entry under the homestead, town-site, and mining laws alone for one year from the date of the opening. . . . Congress should see to it that until such time as those lands easy of access, reclamation, and irrigation are settled by actual home makers the provisions of the homestead law alone shall prevail. This policy is in accord with the dominant sentiment of the time, viz, that the public lands shall be reserved for actual homes for the people. Id., at 1182. Although the amendment was rejected in the House of Representatives, id., at 1186, the Senate substituted the current version of the 1905 Act, which is similar to the amendment offered by Representative Howell but omits the restoration language of the House version. Id., at 3522. In the hearings on the Senate bill, Senator Teller of Colorado had stated that I am not going to agree to any entry of that land except under the homestead and town-site entries, because I am not going to consent to any speculators getting public land if I can help it. Indian Appropriation Bill, 1906, Hearings before the Senate Subcommittee of the Committee on Indian Affairs, 58th Cong., 3d Sess., 30 (1905). Thus, although we have no way of knowing for sure why the Senate decided to limit the manner of opening, it seems likely that Congress wanted to limit land speculation. That objective is not inconsistent with the restoration of the unallotted lands to the public domain: Once the lands became public, Congress could of course place limitations on their entry, sale, and settlement. The Proclamation whereby President Roosevelt actually opened the reservation to settlement makes clear that the 1905 Act did not repeal the restoration language of the 1902 Act. In that document, the President stated that the 1902 Act provided that the unallotted lands were to be restored to the public domain, that the 1903, 1904, and 1905 Acts extended the time for the opening, and that those lands were now opened for settlement under the homestead laws by virtue of the power in [him] vested by said Acts of Congress.  34 Stat. 3120 (emphasis added). President Roosevelt thus clearly understood the 1905 Act to incorporate the 1902 Act, and specifically the restoration language. This unambiguous, contemporaneous, statement, by the Nation's Chief Executive, Rosebud, 430 U. S., at 602, is clear evidence of the understanding at the time that the Uintah Reservation would be diminished by the opening of the unallotted lands to non-Indian settlement. The subsequent history is less illuminating than the contemporaneous evidence. Since 1905, Congress has repeatedly referred to the Uintah Reservation in both the past and present tenses, reinforcing our longstanding observation that [t]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. United States v. Philadelphia Nat. Bank, 374 U. S. 321, 348-349 (1963) (internal quotation marks omitted). The District Court in the Ute Indian Tribe case extensively cataloged these congressional references, and we agree with that court's conclusion: Not only are the references grossly inconsistent when considered together, they . . . are merely passing references in text, not deliberate expressions of informal conclusions about congressional intent in 1905. 521 F. Supp. 1072, 1135 (Utah 1981). Because the textual and contemporaneous evidence of diminishment is clear, however, the confusion in the subsequent legislative record does nothing to alter our conclusion that the Uintah Reservation was diminished.
+Finally, our conclusion that the statutory language and history indicate a congressional intent to diminish is not controverted by the subsequent demographics of the Uintah Valley area. We have recognized that [w]hen an area is predominately populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains Indian country seriously burdens the administration of state and local governments. Solem, 465 U. S., at 471-472, n. 12. Of the original 2 million acres reserved for Indian occupation, approximately 400,000 were opened for non-Indian settlement in 1905. Almost all of the non-Indians live on the opened lands. The current population of the area is approximately 85 percent non-Indian. 1990 Census of Population and Housing, Summary Population and Housing Characteristics: Utah, 1990 CPH-1-46, Table 17, p. 73. The population of the largest city in the area—Roosevelt City, named for the President who opened the reservation for settlement— is about 93 percent non-Indian. Id., Table 3, p. 13. The seat of Ute tribal government is in Fort Duchesne, which is situated on Indian trust lands. By contrast, we found it significant in Solem that the seat of tribal government was located on opened lands. 465 U. S., at 480. The State of Utah exercised jurisdiction over the opened lands from the time the reservation was opened until the Tenth Circuit's Ute Indian Tribe decision. That assumption of authority again stands in sharp contrast to the situation in Solem, where tribal authorities and Bureau of Indian Affairs personnel took primary responsibility for policing . . . the opened lands during the years following [the opening in] 1908. 465 U. S., at 480. This jurisdictional history, as well as the current population situation in the Uintah Valley, demonstrates a practical acknowledgment that the Reservation was diminished; a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area. Cf. Rosebud, supra, at 604-605.","In Solem v. Bartlett , we recognized:"
+378,104637,1,1,"All process claims were held invalid by the District Court; those numbered 1, 3, 4, 7, 8 and 9, because they make no specific reference to the essential chemical constituents of the welding composition to be used in the claimed welding process, a conclusion with which we agree. Process claim 2 was held invalid for the reason applicable to flux claims 24 and 26, with which we also agree. Others, namely 5, 6, 11, 12, 13, 14, 15, 16 and 17, and composition claim 27 were held invalid because they erroneously import that the sole conductive medium through which electric current passes from the electrode to the base metal is the welding composition, which is in a molten state, and that no electric arc phenomenon is present. The court found that the procedural steps in the process taught by the patent are identical in all respects with those followed in prior automatic electric welding processes and that the only invention or discovery resides in the use of a different welding composition. It sustained the patent for the composition, as we have shown, but denied its validity insofar as it claimed the old procedure. The trial court gave extensive consideration to the process claims. It agreed that a radically new process would have been discovered if it could be said that the electric current passed between the electrode and the base metal through a welding composition in a liquid state and that no electric arc is present. All of the previous art had used the electric arc. But with full appreciation of the critical nature of the inquiry and after long litigation of the technology of the art, the court concluded that no such finding of departure from the prior art could be made and said that the evidence is persuasive that no such basic difference in phenomena is present in the Jones method. The District Court reinforced its conclusion by pointing out that the inventors themselves initially did not conceive their invention to embody any such radical departure from known phenomena and that their first application for a patent was replete with references to the presence and use of an electric arc in the new method. It was only after they had assigned their rights to the respondent that the suggestion of a basically new phenomenon, other than an arc, was made. Just what happens in the Jones method admits of controversy, for there is no visual evidence of an electric arc after the welding operation commences because what actually occurs between the electrode and the metal base is hidden from view by the flux. The court concluded that it is impossible to say with complete certainty that there is not an arc and one of the plaintiff's expert witnesses gave substantial support to the idea that the arc is still present, although it is shielded by the flux in the Jones patent. The same deference is due to the findings of the trial court which overturn claims as to those which sustain them. Technicians may and probably will continue to debate with plausible arguments on each side as to what this obscure process really is. But the record in this case, while not establishing to a certainty that the findings are right, fall far short of convincing us that they are clearly erroneous. We think that the rules that govern review entitle the trial court's conclusions to prevail and that the process claims are invalid under the statute.",process claims.
+379,104637,1,2,"Contentions are made that the patent has been abused through efforts to broaden the patent monopoly by requiring the purchase of unpatentable material for use in connection with it. The trial court found, however, that the plaintiff does not impose on licensees, either as a condition of a license or otherwise, any requirement, condition, agreement or understanding as to the purchase or use of unpatentable commodities and that its licensees are free to buy and use any materials and equipment from any source. The court recognized that an appearance of such freedom is not conclusive if it conceals a subterfuge and that there is a real, although informal, restraint. But examining the conduct of the plaintiff, it found no such obstacle to the maintenance of an action for infringement on that part of the patent which was valid. The Court of Appeals affirmed, and we accept the conclusion of the two courts below on this branch of the case. Our conclusion is that the judgment of the Court of Appeals, insofar as it reverses that of the District Court, should be reversed and that the judgment of the District Court be in all things reinstated. To that extent the judgment below is reversed. It is so ordered.",abuse of patent.
+380,108307,1,1,"1. The appellee, Aldo Mario Bellei (hereinafter the plaintiff), was born in Italy on December 22, 1939. He is now 31 years of age. 2. The plaintiff's father has always been a citizen of Italy and never has acquired United States citizenship. The plaintiff's mother, however, was born in Philadelphia in 1915 and thus was a native-born United States citizen. She has retained that citizenship. Moreover, she has fulfilled the requirement of § 301 (a) (7) for physical presence in the United States for 10 years, more than five of which were after she attained the age of 14 years. The mother and father were married in Philadelphia on the mother's 24th birthday, March 14, 1939. Nine days later, on March 23, the newlyweds departed for Italy. They have resided there ever since. 3. By Italian law the plaintiff acquired Italian citizenship upon his birth in Italy. He retains that citizenship. He also acquired United States citizenship at his birth under Rev. Stat. § 1993, as amended by the Act of May 24, 1934, § 1, 48 Stat. 797, then in effect. [2] That version of the statute, as does the present one, contained a residence condition applicable to a child born abroad with one alien parent. 4. The plaintiff resided in Italy from the time of his birth until recently. He currently resides in England, where he has employment as an electronics engineer with an organization engaged in the NATO defense program. 5. The plaintiff has come to the United States five different times. He was physically present here during the following periods: April 27 to July 31, 1948 July 10 to October 5, 1951 June to October 1955 December 18, 1962 to February 13, 1963 May 26 to June 13, 1965. On the first two occasions, when the plaintiff was a boy of eight and 11, he entered the country with his mother on her United States passport. On the next two occasions, when he was 15 and just under 23, he entered on his own United States passport and was admitted as a citizen of this country. His passport was first issued on June 27, 1952. His last application approval, in August 1961, contains the notation Warned abt. 301 (b). The plaintiff's United States passport was periodically approved to and including December 22, 1962, his 23d birthday. 6. On his fifth visit to the United States, in 1965, the plaintiff entered with an Italian passport and as an alien visitor. He had just been married and he came with his bride to visit his maternal grandparents. 7. The plaintiff was warned in writing by United States authorities of the impact of § 301 (b) when he was in this country in January 1963 and again in November of that year when he was in Italy. Sometime after February 11, 1964, he was orally advised by the American Embassy at Rome that he had lost his United States citizenship pursuant to § 301 (b). In November 1966 he was so notified in writing by the American Consul in Rome when the plaintiff requested another American passport. 8. On March 28, 1960, plaintiff registered under the United States Selective Service laws with the American Consul in Rome. At that time he already was 20 years of age. He took in Italy, and passed, a United States Army physical examination. On December 11, 1963, he was asked to report for induction in the District of Columbia. This induction, however, was then deferred because of his NATO defense program employment. At the time of deferment he was warned of the danger of losing his United States citizenship if he did not comply with the residence requirement. After February 14, 1964, Selective Service advised him by letter that, due to the loss of his citizenship, he had no further obligation for United States military service. Plaintiff thus concededly failed to comply with the conditions imposed by § 301 (b) of the Act.",The facts are stipulated:
+381,111742,2,1,"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. This language expressly encompasses only suits brought against a State by citizens of another State, but this Court long ago held that the Amendment bars suits against a State by citizens of that same State as well. See Hans v. Louisiana, 134 U. S. 1 (1890). [I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 100 (1984). [10] This bar exists whether the relief sought is legal or equitable. Id., at 100-101. Where the State itself or one of its agencies or departments is not named as defendant and where a state official is named instead, the Eleventh Amendment status of the suit is less straightforward. Ex parte Young, 209 U. S. 123 (1908), held that a suit to enjoin as unconstitutional a state official's action was not barred by the Amendment. This holding was based on a determination that an unconstitutional state enactment is void and that any action by a state official that is purportedly authorized by that enactment cannot be taken in an official capacity since the state authorization for such action is a nullity. As the Court explained in Young itself: If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. Id., at 159-160. Thus, the official, although acting in his official capacity, may be sued in federal court. See also Pennhurst, supra, at 102, 105; Hutto v. Finney, 437 U. S. 678, 692 (1978). Young, however, does not insulate from Eleventh Amendment challenge every suit in which a state official is the named defendant. In accordance with its original rationale, Young applies only where the underlying authorization upon which the named official acts is asserted to be illegal. See Cory v. White, 457 U. S. 85 (1982). And it does not foreclose an Eleventh Amendment challenge where the official action is asserted to be illegal as a matter of state law alone. See Pennhurst, supra, at 104-106. In such a case, federal supremacy is not implicated because the state official is acting contrary to state law only. We have also described certain types of cases that formally meet the Young requirements of a state official acting inconsistently with federal law but that stretch that case too far and would upset the balance of federal and state interests that it embodies. Young 's applicability has been tailored to conform as precisely as possible to those specific situations in which it is necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to `the supreme authority of the United States.'  Pennhurst, supra, at 105 (quoting Young, supra, at 160). Consequently, Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation. As we have noted: Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment. Green v. Mansour, 474 U. S. 64, 68 (1985) (citation omitted). Relief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred even when the state official is the named defendant. [11] This is true if the relief is expressly denominated as damages. See, e. g., Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945). It is also true if the relief is tantamount to an award of damages for a past violation of federal law, even though styled as something else. See, e. g., Green v. Mansour, supra, at 69-70; Edelman v. Jordan, 415 U. S. 651, 664-668 (1974). On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury. See Milliken v. Bradley, 433 U. S. 267, 289-290 (1977); Edelman, supra, at 667-668. For Eleventh Amendment purposes, the line between permitted and prohibited suits will often be indistinct: [T]he difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. Edelman, supra, at 667. Compare, e. g., Quern v. Jordan, 440 U. S. 332 (1979), with Green v. Mansour, supra . In discerning on which side of the line a particular case falls, we look to the substance rather than to the form of the relief sought, see, e. g., Edelman, supra, at 668, and will be guided by the policies underlying the decision in Ex parte Young.",The Amendment provides:
+382,109301,1,3,"Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low- and moderate-income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom. Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that [d]uring the past 15 years, over 80% of the private housing units constructed in the Town of Penfield have been constructed by [its] members. App. 147. Because of respondents' refusal to grant relief from Penfield's restrictive housing statutes, members of Home Builders could not proceed with planned low- and moderate-income housing projects, id., at 157, and thereby lost profits. Id., at 156. Housing Council numbers among its members at least 17 groups involved in the development and construction of low- and middle-income housing. In particular, one member, Penfield Better Homes,  is and has been actively attempting to develop moderate income housing in . . . Penfield (emphasis supplied), id., at 174, but has been unable to secure the necessary approvals. Ibid. The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular project. Thus, Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention, ante, at 516 (emphasis supplied), while the controversy between respondents and Better Homes, however vigorous it may once have been, [has not] remained a live, concrete dispute. Ante, at 517. Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns' experience in the past with Penfield officials has shown any plans for low- and moderate-income housing to be futile for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low- or moderate-income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low- and moderate-income people. When this sort of pattern-and-practice claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court's conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court. I would reverse the judgment of the Court of Appeals.",Associations Including Building Concerns
+383,145749,1,5,"EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA's refusal to regulate such emissions contributes to Massachusetts' injuries. EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners' injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease. But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ([A] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind). They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed. Cf. SEC v. Chenery Corp., 332 U.S. 194, 202, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations). That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law. And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere—according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. ¶ 30, Stdg.App. 219. That accounts for more than 6% of worldwide carbon dioxide emissions. Id., at 232 (Oppenheimer Decl. ¶ 3); see also MacCracken Decl. ¶ 31, at 220. To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country's total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. [22] Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming. The Remedy While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See also Larson v. Valente, 456 U.S. 228, 244, n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ([A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury). Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. [23] Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. We moreover attach considerable significance to EPA's agree[ment] with the President that `we must address the issue of global climate change,' 68 Fed.Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA's ardent support for various voluntary emission-reduction programs, 68 Fed.Reg. 52932. As Judge Tatel observed in dissent below, EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming. 415 F.3d, at 66. In sum—at least according to petitioners' uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge the EPA's denial of their rulemaking petition. [24]",Causation
+384,108556,1,1,"Section 9-1706a contains both the procedural and substantive requirements for pretrial commitment of incompetent criminal defendants in Indiana. If at any time before submission of the case to the court or jury the trial judge has reasonable ground to believe the defendant to be insane, [2] he must appoint two examining physicians and schedule a competency hearing. The hearing is to the court alone, without a jury. The examining physicians' testimony and other evidence may be adduced on the issue of incompetency. If the court finds the defendant has not comprehension sufficient to understand the proceedings and make his defense, trial is delayed or continued and the defendant is remanded to the state department of mental health to be confined in an appropriate psychiatric institution. The section further provides that [w]henever the defendant shall become sane the superintendent of the institution shall certify that fact to the court, and the court shall order him brought on to trial. The court may also make such an order sua sponte. There is no statutory provision for periodic review of the defendant's condition by either the court or mental health authorities. Section 9-1706a by its terms does not accord the defendant any right to counsel at the competency hearing or otherwise describe the nature of the hearing; but Jackson was represented by counsel who cross-examined the testifying doctors carefully and called witnesses on behalf of the petitioner-defendant. Petitioner's central contention is that the State, in seeking in effect to commit him to a mental institution indefinitely, should have been required to invoke the standards and procedures of Ind. Ann. Stat. § 22-1907, now Ind. Code 16-15-1-3 (1971), governing commitment of feeble-minded persons. That section provides that upon application of a reputable citizen of the county and accompanying certificate of a reputable physician that a person is feeble-minded and is not insane or epileptic (emphasis supplied), a circuit court judge shall appoint two physicians to examine such person. After notice, a hearing is held at which the patient is entitled to be represented by counsel. If the judge determines that the individual is indeed feeble-minded, he enters an order of commitment and directs the clerk of the court to apply for the person's admission to the superintendent of the institution for feeble-minded persons located in the district in which said county is situated. A person committed under this section may be released at any time, provided that in the judgment of the superintendent, the mental and physical condition of the patient justifies it. § 22-1814, now Ind. Code 16-15-4-12 (1971). The statutes do not define either feeble-mindedness or insanity as used in § 22-1907. But a statute establishing a special institution for care of such persons, § 22-1801, refers to the duty of the State to provide care for its citizens who are feeble-minded, and are therefore unable properly to care for themselves. [3] These provisions evidently afford the State a vehicle for commitment of persons in need of custodial care who are not insane and therefore do not qualify as mentally ill under the State's general involuntary civil commitment scheme. See §§ 22-1201 to 22-1256, now Ind. Code 16-14-9-1 to XX-XX-X-XX, XX-XX-X-X to XX-XX-X-XX, 35-5-3-4, XX-XX-XX-X to XX-XX-XX-XX, and XX-XX-XX-X, XX-XX-XX-X, and XX-XX-XX-X (1971). Scant attention was paid this general civil commitment law by the Indiana courts in the present case. An understanding of it, however, is essential to a full airing of the equal protection claims raised by petitioner. Section 22-1201 (1) defines a mentally ill person as one who is afflicted with a psychiatric disorder which substantially impairs his mental health; and, because of such psychiatric disorder, requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides. Section 22-1201 (2) defines a psychiatric disorder to be any mental illness or disease, including any mental deficiency, epilepsy, alcoholism, or drug addiction. Other sections specify procedures for involuntary commitment of mentally ill persons that are substantially similar to those for commitment of the feeble-minded. For example, a citizen's sworn statement and the statement of a physician are required. § 22-1212. The circuit court judge, the applicant, and the physician then consult to formulate a treatment plan. § 22-1213. Notice to the individual is required, § 22-1216, and he is examined by two physicians, § 22-1215. There are provisions for temporary commitment. A hearing is held before a judge on the issue of mental illness. §§ 22-1209, 22-1216, 22-1217. The individual has a right of appeal. § 22-1210. An individual adjudged mentally ill under these sections is remanded to the department of mental health for assignment to an appropriate institution. § 22-1209. Discharge is in the discretion of the superintendent of the particular institution to which the person is assigned, § 22-1223; Official Opinion No. 54, Opinions of the Attorney General of Indiana, Dec. 30, 1966. The individual, however, remains within the court's custody, and release can therefore be revoked upon a hearing. Ibid.",indiana commitment procedures
+385,108556,1,2,"Because the evidence established little likelihood of improvement in petitioner's condition, he argues that commitment under § 9-1706a in his case amounted to a commitment for life. This deprived him of equal protection, he contends, because, absent the criminal charges pending against him, the State would have had to proceed under other statutes generally applicable to all other citizens: either the commitment procedures for feeble-minded persons, or those for mentally ill persons. He argues that under these other statutes (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under § 22-1907, he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him. In Baxstrom v. Herold, 383 U. S. 107 (1966), the Court held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial that the State made generally available to all other persons civilly committed. Rejecting the State's argument that Baxstrom's conviction and sentence constituted adequate justification for the difference in procedures, the Court said that there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments. 383 U. S., at 111-112; see United States ex rel. Schuster v. Herold, 410 F. 2d 1071 (CA2), cert. denied, 396 U. S. 847 (1969). The Court also held that Baxstrom was denied equal protection by commitment to an institution maintained by the state corrections department for dangerously mentally ill persons, without a judicial determination of his dangerous propensities afforded all others so committed. If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. This was the precise holding of the Massachusetts Court in Commonwealth v. Druken, 356 Mass. 503, 507, 254 N. E. 2d 779, 781 (1969). [4] The Baxstrom principle also has been extended to commitment following an insanity acquittal, Bolton v. Harris, 130 U. S. App. D. C. 1, 395 F. 2d 642 (1968); Cameron v. Mullen, 128 U. S. App. D. C. 235, 387 F. 2d 193 (1967); People v. Lally, 19 N. Y. 2d 27, 224 N. E. 2d 87 (1966), and to commitment in lieu of sentence following conviction as a sex offender. Humphrey v. Cady, 405 U. S. 504 (1972). Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment until sane is not really an indeterminate one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminate. The State relies on the lack of exactitude with which psychiatry can predict the future course of mental illness, and on the Court's decision in what is claimed to be a fact situation similar to the case at hand in Greenwood v. United States, 350 U. S. 366 (1956). Were the State's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise. One of the doctors testified that in his view Jackson would be unable to acquire the substantially improved communication skills that would be necessary for him to participate in any defense. The prognosis for petitioner's developing such skills, he testified, appeared rather dim. In answer to a question whether Jackson would ever be able to comprehend the charges or participate in his defense, even after commitment and treatment, the doctor said, I doubt it, I don't believe so. The other psychiatrist testified that even if Jackson were able to develop such skills, he would still be unable to comprehend the proceedings or aid counsel due to his mental deficiency. The interpreter, a supervising teacher at the state school for the deaf, said that he would not be able to serve as an interpreter for Jackson or aid him in participating in a trial, and that the State had no facilities that could, after a length of time, aid Jackson in so participating. The court also heard petitioner's mother testify that Jackson already had undergone rudimentary out-patient training in communications skills from the deaf and dumb school in Indianapolis over a period of three years without noticeable success. There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time. Nor does Greenwood, [5] which concerned the constitutional validity of 18 U. S. C. §§ 4244 to 4248, lend support to respondent's position. That decision, addressing the narrow constitutional issue raised by the order of commitment in the circumstances of this case, 350 U. S., at 375, upheld the Federal Government's constitutional authority to commit an individual found by the District Court to be insane, incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United States. The Greenwood Court construed the federal statutes to deal comprehensively with defendants who are insane or mentally incompetent to stand trial, and not merely with the problem of temporary mental disorder. 350 U. S., at 373. Though Greenwood's prospects for improvement were slim, the Court held that in the situation before us, where the District Court had made an explicit finding of dangerousness, that fact alone does not defeat federal power to make this initial commitment. 350 U. S., at 375. No issue of equal protection was raised or decided. See Petitioner's Brief, No. 460, O. T. 1955, pp. 2, 7-9. It is clear that the Government's substantive power to commit on the particular findings made in that case was the sole question there decided. 350 U. S., at 376. We note also that neither the Indiana statute nor state practice makes the likelihood of the defendant's improvement a relevant factor. The State did not seek to make any such showing, and the record clearly establishes that the chances of Jackson's ever meeting the competency standards of § 9-1706a are at best minimal, if not nonexistent. The record also rebuts any contention that the commitment could contribute to Jackson's improvement. Jackson's § 9-1706a commitment is permanent in practical effect. We therefore must turn to the question whether, because of the pendency of the criminal charges that triggered the State's invocation of § 9-1706a, Jackson was deprived of substantial rights to which he would have been entitled under either of the other two state commitment statutes. Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others. In this case commitment procedures under all three statutes appear substantially similar: notice, examination by two doctors, and a full judicial hearing at which the individual is represented by counsel and can cross-examine witnesses and introduce evidence. Under each of the three statutes, the commitment determination is made by the court alone, and appellate review is available. In contrast, however, what the State must show to commit a defendant under § 9-1706a, and the circumstances under which an individual so committed may be released, are substantially different from the standards under the other two statutes. Under § 9-1706a, the State needed to show only Jackson's inability to stand trial. We are unable to say that, on the record before us, Indiana could have civilly committed him as mentally ill under § 22-1209 or committed him as feeble-minded under § 22-1907. The former requires at least (1) a showing of mental illness and (2) a showing that the individual is in need of care, treatment, training or detention. § 22-1201 (1). Whether Jackson's mental deficiency would meet the first test is unclear; neither examining physician addressed himself to this. Furthermore, it is problematical whether commitment for treatment or training would be appropriate since the record establishes that none is available for Jackson's condition at any state institution. The record also fails to establish that Jackson is in need of custodial care or detention. He has been employed at times, and there is no evidence that the care he long received at home has become inadequate. The statute appears to require an independent showing of dangerousness (requires . . . detention in the interest of the welfare of such person or . . . others . . .). Insofar as it may require such a showing, the pending criminal charges are insufficient to establish it, and no other supporting evidence was introduced. For the same reasons, we cannot say that this record would support a feeble-mindedness commitment under § 22-1907 on the ground that Jackson is unable properly to care for [himself]. [6] § 22-1801. More important, an individual committed as feeble-minded is eligible for release when his condition justifies it, § 22-1814, and an individual civilly committed as mentally ill when the superintendent or administrator shall discharge such person, or [when] cured of such illness. § 22-1223 (emphasis supplied). Thus, in either case release is appropriate when the individual no longer requires the custodial care or treatment or detention that occasioned the commitment, or when the department of mental health believes release would be in his best interests. The evidence available concerning Jackson's past employment and home care strongly suggests that under these standards he might be eligible for release at almost any time, even if he did not improve. [7] On the other hand, by the terms of his present § 9-1706a commitment, he will not be entitled to release at all, absent an unlikely substantial change for the better in his condition. [8] Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release. As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different treatment than conviction and sentence. Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22-1209 or § 22-1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment. [9]",equal protection
+386,108556,1,4,"Petitioner also urges that fundamental fairness requires that the charges against him now be dismissed. The thrust of his argument is that the record amply establishes his lack of criminal responsibility at the time the crimes are alleged to have been committed. The Indiana court did not discuss this question. Apparently it believed that by reason of Jackson's incompetency commitment the State was entitled to hold the charges pending indefinitely. On this record, Jackson's claim is a substantial one. For a number of reasons, however, we believe the issue is not sufficiently ripe for ultimate decision by us at this time. A. Petitioner argues that he has already made out a complete insanity defense. Jackson's criminal responsibility at the time of the alleged offenses, however, is a distinct issue from his competency to stand trial. The competency hearing below was not directed to criminal responsibility, and evidence relevant to it was presented only incidentally. [26] Thus, in any event, we would have to remand for further consideration of Jackson's condition in the light of Indiana's law of criminal responsibility. B. Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial, [27] or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence. [28] Jackson did not present the Sixth-Fourteenth Amendment issue to the state courts. Nor did the highest state court rule on the due process issue, if indeed it was presented to that court in precisely the above-described form. We think, in light of our holdings in Parts II and III, that the Indiana courts should have the first opportunity to determine these issues. C. Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency. [29] For instance, § 4.06 (3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue susceptible of fair determination prior to trial and without the personal participation of the defendant. An alternative draft of § 4.06 (4) of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some States have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction. [30] We do not read this Court's previous decisions [31] to preclude the States from allowing, at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel. Of course, if the Indiana courts conclude that Jackson was almost certainly not capable of criminal responsibility when the offenses were committed, dismissal of the charges might be warranted. But even if this is not the case, Jackson may have other good defenses that could sustain dismissal or acquittal and that might now be asserted. We do not know if Indiana would approve procedures such as those mentioned here, but these possibilities will be open on remand. Reversed and remanded. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.",disposition of the charges
+387,118129,1,6,It is so ordered. [Appendix to opinion of the Court follows this page.],The judgment of the District Court is affirmed.
+388,109881,2,1,"There are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H. R. 320, a bill to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes. H. R. 320 contained four sections. Section 1, now codified as 42 U. S. C. § 1983, was the subject of only limited debate and was passed without amendment. [10] Sections 2 through 4 dealt primarily with the other purpose of suppressing Ku Klux Klan violence in the Southern States. [11] The wisdom and constitutionality of these sections—not § 1, now § 1983—were the subject of almost all congressional debate and each of these sections was amended. The House finished its initial debates on H. R. 320 on April 7, 1871, and one week later the Senate also voted out a bill. [12] Again, debate on § 1 of the bill was limited and that section was passed as introduced. Immediately prior to the vote on H. R. 320 in the Senate, Senator Sherman introduced his amendment. [13] This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons riotously and tumultuously assembled. [14] The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H. R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress. On April 18, 1871, the first conference committee completed its work on H. R. 320. The main features of the conference committee draft of the Sherman amendment were these: [15] First, a cause of action was given to persons injured by any persons riotously and tumultuously assembled together . . . with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude . . . . Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred and that it could be maintained by either the person injured or his legal representative. Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof. In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendment, Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property responsible for Ku Klux Klan damage. [16] Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States. [17] Nonetheless there were critical differences between the conference substitute and extant state and English statutes: The conference substitute, unlike most state riot statutes, lacked a short statute of limitations and imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished. [18] The first conference substitute passed the Senate but was rejected by the House. House opponents, within whose ranks were some who had supported § 1, thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters. And, because of this constitutional objection, opponents of the Sherman amendment were unwilling to impose damages liability for nonperformance of a duty which Congress could not require municipalities to perform. This position is reflected in Representative Poland's statement that is quoted in Monroe. [19] Because the House rejected the first conference report a second conference was called and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made any person or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same, who did not attempt to stop the same, liable to any person injured by the conspiracy. [20] The amendment in this form was adopted by both Houses of Congress and is now codified as 42 U. S. C. § 1986. The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment—on which our holding in Monroe was based, see supra, at 664—would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because § 1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the persons to whom that section applies.",An Overview
+389,109881,2,2,"The style of argument adopted by both proponents and opponents of the Sherman amendment in both Houses of Congress was largely legal, with frequent references to cases decided by this Court and the Supreme Courts of the several States. Proponents of the Sherman amendment did not, however, discuss in detail the argument in favor of its constitutionality. Nonetheless, it is possible to piece together such an argument from the debates on the first conference report and those on § 2 of the civil rights bill, which, because it allowed the Federal Government to prosecute crimes in the States, had also raised questions of federal power. The account of Representative Shellabarger, the House sponsor of H. R. 320, is the most complete. Shellabarger began his discussion of H. R. 320 by stating that there is a domain of constitutional law involved in the right consideration of this measure which is wholly unexplored. Globe App. 67. There were analogies, however. With respect to the meaning of § 1 of the Fourteenth Amendment, and particularly its Privileges or Immunities Clause, Shellabarger relied on the statement of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. C. C. 371 (CC ED Pa. 1825), which defined the privileges protected by Art. IV: `What these fundamental privileges are[,] it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government;'— Mark that — ` protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety . . . .' Globe App. 69 (emphasis added), quoting 4 Wash. C. C., at 380-381. Building on his conclusion that citizens were owed protection—a conclusion not disputed by opponents of the Sherman amendment [21] —Shellabarger then considered Congress' role in providing that protection. Here again there were precedents: [Congress has always] assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution. Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in [Art. I, § 10,] relate to the divisions of the political powers of the State and General Governments.. . . These prohibitions upon political powers of the States are all of such nature that they can be, and even have been, . . . enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States `enforced' these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States. These three are: first, that as to fugitives from justice; [22] second, that as to fugitives from service, (or slaves;) [23] third, that declaring that the `citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.' [24] And, sir, every one of these—the only provisions where it was deemed that legislation was required to enforce the constitutional provisions—the only three where the rights or liabilities of persons in the States, as between these persons and the States, are directly provided for, Congress has by legislation affirmatively interfered to protect . . . such persons. Globe App. 69-70. Of legislation mentioned by Shellabarger, the closest analog of the Sherman amendment, ironically, was the statute implementing the fugitives from justice and fugitive slave provisions of Art. IV—the Act of Feb. 12, 1793, 1 Stat. 302—the constitutionality of which had been sustained in 1842, in Prigg v. Pennsylvania, 16 Pet. 539. There, Mr. Justice Story, writing for the Court, held that Art. IV gave slaveowners a federal right to the unhindered possession of their slaves in whatever State such slaves might be found. 16 Pet., at 612. Because state process for recovering runaway slaves might be inadequate or even hostile to the rights of the slaveowner, the right intended to be conferred could be negated if left to state implementation. Id., at 614. Thus, since the Constitution guaranteed the right and this in turn required a remedy, Story held it to be a natural inference that Congress had the power itself to ensure an appropriate (in the Necessary and Proper Clause sense) remedy for the right. Id., at 615. Building on Prigg, Shellabarger argued that a remedy against municipalities and counties was an appropriate—and hence constitutional—method for ensuring the protection which the Fourteenth Amendment made every citizen's federal right. [25] This much was clear from the adoption of such statutes by the several States as devices for suppressing riot. [26] Thus, said Shellabarger, the only serious question remaining was whether, since a county is an integer or part of a State, the United States can impose upon it, as such, any obligations to keep the peace in obedience to United States laws. [27] This he answered affirmatively, citing Board of Comm'rs v. Aspinwall, 24 How. 376 (1861), the first of many cases [28] upholding the power of federal courts to enforce the Contract Clause against municipalities. [29] House opponents of the Sherman amendment—whose views are particularly important since only the House voted down the amendment—did not dispute Shellabarger's claim that the Fourteenth Amendment created a federal right to protection, see n. 21, supra, but they argued that the local units of government upon which the amendment fastened liability were not obligated to keep the peace at state law and further that the Federal Government could not constitutionally require local governments to create police forces, whether this requirement was levied directly, or indirectly by imposing damages for breach of the peace on municipalities. The most complete statement of this position is that of Representative Blair: [30] The proposition known as the Sherman amendment . . . is entirely new. It is altogether without a precedent in this country. . . . That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone. . . . . . . [H]ere it is proposed, not to carry into effect an obligation which rests upon the municipality, but to create that obligation, and that is the provision I am unable to assent to. The parallel of the hundred does not in the least meet the case. The power that laid the obligation upon the hundred first put the duty upon the hundred that it should perform in that regard, and failing to meet the obligation which had been laid upon it, it was very proper that it should suffer damage for its neglect. . . . ... [T]here are certain rights and duties that belong to the States, . . . there are certain powers that inhere in the State governments. They create these municipalities, they say what their powers shall be and what their obligations shall be. If the Government of the United States can step in and add to those obligations, may it not utterly destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, . . . where [will] its power . . . stop and what obligations . . . might [it] not lay upon a municipality. . . . Now, only the other day, the Supreme Court . . . decided [in Collector v. Day, 11 Wall. 113 (1871)] that there is no power in the Government of the United States, under its authority to tax, to tax the salary of a State officer. Why? Simply because the power to tax involves the power to destroy, and it was not the intent to give the Government of the United States power to destroy the government of the States in any respect. It was held also in the case of Prigg vs. Pennsylvania [16 Pet. 539 (1842)] that it is not within the power of the Congress of the United States to lay duties upon a State officer; that we cannot command a State officer to do any duty whatever, as such; and I ask . . . the difference between that and commanding a municipality, which is equally the creature of the State, to perform a duty. Globe 795. Any attempt to impute a unitary constitutional theory to opponents of the Sherman amendment is, of course, fraught with difficulties, not the least of which is that most Members of Congress did not speak to the issue of the constitutionality of the amendment. Nonetheless, two considerations lead us to conclude that opponents of the Sherman amendment found it unconstitutional substantially because of the reasons stated by Representative Blair: First, Blair's analysis is precisely that of Poland, whose views were quoted as authoritative in Monroe, see supra, at 664, and that analysis was shared in large part by all House opponents who addressed the constitutionality of the Sherman amendment. [31] Second, Blair's exegesis of the reigning constitutional theory of his day, as we shall explain, was clearly supported by precedent—albeit precedent that has not survived, see Ex parte Virginia, 100 U. S. 339, 347-348 (1880); Graves v. New York ex rel. O'Keefe, 306 U. S. 466, 486 (1939)—and no other constitutional formula was advanced by participants in the House debates. Collector v. Day , cited by Blair, was the clearest and, at the time of the debates, the most recent pronouncement of a doctrine of coordinate sovereignty that, as Blair stated, placed limits on even the enumerated powers of the National Government in favor of protecting state prerogatives. There, the Court held that the United States could not tax the income of Day, a Massachusetts state judge, because the independence of the States within their legitimate spheres would be imperiled if the instrumentalities through which States executed their powers were subject to the control of another and distinct government. 11 Wall., at 127. Although the Court in Day apparently rested this holding in part on the proposition that the taxing power acknowledges no limits but the will of the legislative body imposing the tax, id., at 125-126; cf. McCulloch v. Maryland, 4 Wheat. 316 (1819), the Court had in other cases limited other national powers in order to avoid interference with the States. [32] In Prigg v. Pennsylvania , for example, Mr. Justice Story, in addition to confirming a broad national power to legislate under the Fugitive Slave Clause, see supra, at 672, held that Congress could not insist that states . . . provide means to carry into effect the duties of the national government. 16 Pet., at 615-616. [33] And Mr. Justice McLean agreed that, [a]s a general principle, it was true that Congress had no power to impose duties on state officers, as provided in the [Act of Feb. 12, 1793]. Nonetheless he wondered whether Congress might not impose positive duties on state officers where a clause of the Constitution, like the Fugitive Slave Clause, seemed to require affirmative government assistance, rather than restraint of government, to secure federal rights. See id., at 664-665. Had Mr. Justice McLean been correct in his suggestion that, where the Constitution envisioned affirmative government assistance, the States or their officers or instrumentalities could be required to provide it, there would have been little doubt that Congress could have insisted that municipalities afford by positive action the protection [34] owed individuals under § 1 of the Fourteenth Amendment whether or not municipalities were obligated by state law to keep the peace. However, any such argument, largely foreclosed by Prigg, was made impossible by the Court's holding in Kentucky v. Dennison, 24 How. 66 (1861). There, the Court was asked to require Dennison, the Governor of Ohio, to hand over Lago, a fugitive from justice wanted in Kentucky, as required by § 1 of the Act of Feb. 12, 1793, [35] which implemented Art. IV, § 2, cl. 2, of the Constitution. Mr. Chief Justice Taney, writing for a unanimous Court, refused to enforce that section of the Act: [W]e think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. 24 How., at 107-108. The rationale of Dennison —that the Nation could not impose duties on state officers since that might impede States in their legitimate activities—is obviously identical to that which animated the decision in Collector v. Day . See supra, at 676. And, as Blair indicated, municipalities as instrumentalities through which States executed their policies could be equally disabled from carrying out state policies if they were also obligated to carry out federally imposed duties. Although no one cited Dennison by name, the principle for which it stands was well known to Members of Congress, [36] many of whom discussed Day [37] as well as a series of State Supreme Court cases [38] in the mid-1860's which had invalidated a federal tax on the process of state courts on the ground that the tax threatened the independence of a vital state function. [39] Thus, there was ample support for Blair's view that the Sherman amendment, by putting municipalities to the Hobson's choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to destroy the government of the States. Globe 795. If municipal liability under § 1 of the Civil Rights Act of 1871 created a similar Hobson's choice, we might conclude, as Monroe did, that Congress could not have intended municipalities to be among the persons to which that section applied. But this is not the case. First, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment. Representative Poland, for example, reasoning from Contract Clause precedents, indicated that Congress could constitutionally confer jurisdiction on the federal courts to entertain suits seeking to hold municipalities liable for using their authorized powers in violation of the Constitution—which is as far as § 1 of the Civil Rights Act went: I presume . . . that where a State had imposed a duty [to keep the peace] upon [a] municipality . . . an action would be allowed to be maintained against them in the courts of the United States under the ordinary restrictions as to jurisdiction. But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever. Globe 794. Representative Burchard agreed: [T]here is no duty imposed by the Constitution of the United States, or usually by State laws, upon a county to protect the people of that county against the commission of the offenses herein enumerated, such as the burning of buildings or any other injury to property or injury to person. Police powers are not conferred upon counties as corporations; they are conferred upon cities that have qualified legislative power. And so far as cities are concerned, where the equal protection required to be afforded by a State is imposed upon a city by State laws, perhaps the United States courts could enforce its performance. But counties . . . do not have any control of the police . . . . Id., at 795. See also the views of Rep. Willard, discussed at n. 30, supra. Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the positive government action required to protect federal constitutional rights and no question was raised of enlisting the States in positive action. The limits of the principles announced in Dennison and Day are not so well defined in logic, but are clear as a matter of history. It must be remembered that the same Court which rendered Day also vigorously enforced the Contract Clause against municipalities—an enforcement effort which included various forms of positive relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found. [40] Thus, federal judicial enforcement of the Constitution's express limits on state power, since it was done so frequently, must, notwithstanding anything said in Dennison or Day, have been permissible, at least so long as the interpretation of the Constitution was left in the hands of the judiciary. Since § 1 of the Civil Rights Act simply conferred jurisdiction on the federal courts to enforce § 1 of the Fourteenth Amendment—a situation precisely analogous to the grant of diversity jurisdiction under which the Contract Clause was enforced against municipalities—there is no reason to suppose that opponents of the Sherman amendment would have found any constitutional barrier to § 1 suits against municipalities. Finally, the very votes of those Members of Congress, who opposed the Sherman amendment but who had voted for § 1, confirm that the liability imposed by § 1 was something very different from that imposed by the amendment. Section 1 without question could be used to obtain a damages judgment against state or municipal officials who violated federal constitutional rights while acting under color of law. [41] However, for Prigg-Dennison-Day purposes, as Blair and others recognized, [42] there was no distinction of constitutional magnitude between officers and agents—including corporate agents—of the State: Both were state instrumentalities and the State could be impeded no matter over which sort of instrumentality the Federal Government sought to assert its power. Dennison and Day, after all, were not suits against municipalities but against officers, and Blair was quite conscious that he was extending these cases by applying them to municipal corporations. [43] Nonetheless, Senator Thurman, who gave the most exhaustive critique of § 1— inter alia, complaining that it would be applied to state officers, see Globe App. 217—and who opposed both § 1 and the Sherman amendment, the latter on Prigg grounds, agreed unequivocally that § 1 was constitutional. [44] Those who voted for § 1 must similarly have believed in its constitutionality despite Prigg, Dennison, and Day.",Debate on the First Conference Report
+390,108089,1,2,"When the legality of administrative action is at issue, standing alone will not entitle the plaintiff to a decision on the merits. Pertinent statutory language, legislative history, and public policy considerations must be examined to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the plaintiff belongs. Under the Administrative Procedure Act (APA), statutes [may] preclude judicial review or agency action [may be] committed to agency discretion by law. 5 U. S. C. § 701 (a) (1964 ed., Supp. IV). In either case, the plaintiff is out of court, not because he had no standing to enter, but because Congress has stripped the judiciary of authority to review agency action. Review may be totally foreclosed, as in Schilling v. Rogers, 363 U. S. 666 (1960), or, if permitted, it may nonetheless be denied to the plaintiff's class. But the governing principle laid down in Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967), is that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. The APA provides that [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U. S. C. § 702 (1964 ed., Supp. IV). Congressional intent that a particular plaintiff have review may be found either in express statutory language granting it to the plaintiff's class, [7] or, in the absence of such express language, in statutory indicia from which a right to review may be inferred. [8] Where, as in the instant cases, there is no express grant of review, reviewability has ordinarily been inferred from evidence that Congress intended the plaintiff's class to be a beneficiary of the statute under which the plaintiff raises his claim. See, for example, the Chicago Junction Case, 264 U. S. 258 (1924); Hardin v. Kentucky Utilities Co., 390 U. S. 1 (1968); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (C. A. 2d Cir. 1968). In light of Abbott Laboratories, slight indicia that the plaintiff's class is a beneficiary will suffice to support the inference. [9]",reviewability
+391,106846,2,1,"General Motors is a Delaware corporation which was engaged in business in Washington during the period of time involved in this case, January 1, 1949, through June 30, 1953. Chevrolet, Pontiac, Oldsmobile and General Motors Parts are divisions of General Motors, but they operate substantially independently of each other. The corporation manufactures automobiles, trucks and other merchandise which are sold to dealers in Washington. However, all of these articles are manufactured in other States. In order to carry on the sale, in Washington, of the products of Chevrolet, Pontiac, Oldsmobile and General Motors Parts, the corporation maintains an organization of employees in each of these divisions on a national, regional and district level. During the taxing period in question, the State of Washington was located in the western region of the corporation's national organization and each division, except General Motors Parts, maintained a zone office at Portland, Oregon. These zone offices serviced General Motors' operations in Oregon, Washington, Idaho, portions of Montana and Wyoming and all of the then Territory of Alaska. Chevrolet Division also maintained a branch office at Seattle which was under the jurisdiction of the Portland zone office and which rendered special service to all except the nine southern counties of Washington, which were still serviced by the Portland office. The zone offices of each division were broken down into geographical district offices and it is in these districts that the dealers, to whom the corporation sold its products for re-sale, were selected and located. [2] The orders for these products were sent by the dealers to the zone office located at Portland. They were accepted or rejected there or at the factory and the sales were completed by shipments f. o. b. the factories.",general motors' corporate organization and sales operation.
+392,106846,2,2,"The sales organizations of the Chevrolet, Pontiac and Oldsmobile Divisions were similar in most respects. The zone manager was located in Portland and had charge of the sales operation. His job was to secure and maintain a quality dealer organization . . . to administer and promote programs, plans and procedures that will cause that dealer organization to give . . . the best possible business representation in this area. R. 76. The district managers lived within the State of Washington and their jobs were the maintenance of a quality organization —dealer organization—and the follow-through and administration of programs, plans and procedures within their district, that will help to develop the dealer organization, for the best possible financial and sales results. R. 109. While he had no office within the State, the district manager operated from his home where he received mail and telephone calls and otherwise carried on the corporation's business. He called upon each dealer in his district on an average of at least once a month, and often saw the larger dealers weekly. A district manager had from 12 to 30 dealers under his supervision and functioned as the zone manager's direct contact with these dealers, acting in a supervisory or advisory capacity to see that they have the proper sales organization and to acquaint them with the Divisional sales policies and promotional and training plans to improve the selling ability of the sales organization. R. 246. In this connection, the district manager also assisted in the organization and training of the dealer's sales force. At appropriate times he distributed promotional material and advised on used car inventory control. It was also the duty of the district manager to discuss and work out with the dealer the 30-, 60- and 90-day projection of orders of estimated needs which the dealer or the district manager then filed with the zone manager. These projections indicated the number of cars a dealer needed during the indicated period and also included estimates for accessories and equipment. The projected orders were prepared and filed each month and the estimates contained in them could, for all practical purposes, be construed as a purchase order. [3] In addition to the district manager, each of the Chevrolet, Pontiac and Oldsmobile Divisions also maintained service representatives who called on the dealers with regularity, assisting the service department in any troubles it experienced with General Motors products. These representatives also checked the adequacy of the service department inventory to make certain that the dealer's agreement was being complied with and to ensure the best possible service to customers. It was also their duty to note the appearance of the dealer's place of business and, where needed, to require rehabilitation, improved cleanliness or any other repairs necessary to achieve an attractive sales and service facility. At the dealer's request, or on direction from his zone superior, the service representative also conducted service clinics at the dealer's place of business, for the purpose of teaching the dealer and his service personnel the proper techniques necessary to the operation of an efficient service department. The service representative also gave assistance to the dealer with the more difficult customer complaints, some of which were registered with the dealer, but others of which were registered with the corporation. During the tax period involved here the Chevrolet, Oldsmobile and Pontiac Divisions had an average of about 20 employees resident or principally employed in Washington. [4] General Motors Parts Division employed about 20 more. The Chevrolet Division's branch office at Seattle consisted of one man and his secretary. That office performed the function of getting better service for Washington dealers on orders of Chevrolet Division products. The branch office had no jurisdiction over sales or over other Chevrolet personnel in the State. Since January 1, 1954, Chevrolet Division has maintained a zone office in Seattle and has paid the tax without dispute.",personnel residing within the state and their activities.
+393,106846,2,3,"The zone manager, who directed all zone activities, visited with each Washington dealer on the average of once each 60 days, the larger ones, each month. About one-half of these visits were staged at the dealer's place of business and the others were at Portland. The zone business management manager was the efficiency expert for the zone and supervised the capital structure and financing of the Washington dealers. The zone parts and service manager held responsibility for the adequacy of the Washington dealer services to customers. He worked through the local Washington service representative, but also made personal visits to Washington dealers and conducted schools for the promotion of good service policies. The zone used car manager (for the Chevrolet Division only) assisted Washington dealers in the disposition of used cars through appropriate display and reconditioning.","out-of-state personnel, performing in-state activities."
+394,106846,2,4,"During the period of this tax, the General Motors Parts Division warehoused, sold and shipped parts and accessories to Washington dealers for Chevrolet, Pontiac and Oldsmobile vehicles. It maintained warehouses in Portland and Seattle. No personnel of this division visited the dealers, but all of the Chevrolet, Pontiac and Oldsmobile dealers in Washington obtained their parts and accessories from these warehouses. Items carried by the Seattle warehouse were shipped from it, and those warehoused at Portland were shipped from there. The Seattle warehouse, which carried the items most often called for in Washington, employed from 20 to 28 people during the taxing period. The Portland warehouse carried the less frequently needed parts. The tax on the orders filled at the Seattle warehouse was paid but the tax on the Portland shipments is being protested.",activities of general motors parts division.
+395,88740,1,1,"Power to lay and collect taxes for Federal purposes, being vested exclusively in Congress, it becomes necessary, whenever the validity of such a tax is drawn in question, to examine the act imposing the tax, as the question in every case must necessarily depend upon its true construction, unless it appears that the tax is not apportioned as required, or not uniform, or the object taxed is one not taxable for such a purpose. Railroad companies indebted for any money for which bonds or other evidences of indebtedness have been issued, payable in one or more years after date, subject to interest or with coupons representing interest, are by the 122d section of the act of the 13th of July, 1866, made liable to the internal revenue tax imposed by that section. Provisions upon the subject differing essentially from those contained in that section had previously been enacted; but the Congress, on that day, amended the corresponding section in the prior law by striking out all after the enacting clause, and inserting in lieu thereof the section under consideration, which also provides that any such company that may have declared any dividend in scrip or money, due or payable to its stockholders, including non-residents, whether citizens or aliens, as part of the earnings, profits, income, or gains of such company, and all profits of such company, carried to the account of any fund, or used for construction, shall be subject to, and pay a tax of 5 per centum on the amount of all such interest or coupons, dividends or profits, whenever and wherever the same shall be payable, and to whatsoever party or person the same may be payable, including non-residents, whether citizens or aliens. [] By the act incorporating the railroad company it was provided that the dividends of so much of the profits of the company as it should appear advisable to the managers should be declared at least twice in every year, payable to the stockholders subsequent to the expiration of ten days from the time it was so declared. Apart from that it also appears that the railroad company, on the 22d of December, 1869, declared a dividend in money amounting in the whole to the sum of $1,527,531.59 on their capital stock, as part of their earnings, profits, incomes, and gains made, and which accrued between the 1st of July of that year and the 1st of December of the same year. None of these matters are controverted, but the dividend, though it accrued during the period described, and was declared at the date specified, was made payable to the stockholders on the 17th of January following, as appears by the record. Due return of the said dividend, as required by law, was made by the railroad company to the assessor of the first collection district, and the proper revenue authorities assessed a tax of 5 per centum upon the said dividend, amounting to the sum of $76,376.58, which the railroad company was required to pay within the period prescribed by law. Payment of the tax having been refused, after due notice given and demand made, the collector, and the other two defendants as his deputies, distrained the goods and chattels mentioned in the declaration to secure and enforce the payment of the tax, penalty, and interest, as directed in the warrant from the assessor. Distraint was made in due form, but the corporation plaintiffs, denying the legality of the tax, brought an action of trespass against the collector and his deputies in the State court to test that question, and the record shows that the suit, on the petition of the defendants, was regularly removed into the Circuit Court of the United States for trial. Both parties appeared in the Circuit Court, and the plaintiffs having filed their declaration the defendants pleaded the general issue, and also a special plea, in bar of the action, setting up substantially the same matters as those set forth in the preceding statement. Issue was joined upon the first plea, but the plaintiffs demurred to the second, insisting that the matters pleaded do not constitute any defence to the action which is the principal question in the case. Judgment was rendered for the plaintiffs in the Circuit Court, and the defendants sued out a writ of error and removed the cause into this court. Questions of importance to the parties, it may be conceded, are presented in the record for the decision of the court, but it must be admitted that they are all mere questions as to the construction of the act imposing the tax, as it is not pretended that the object taxed is one not taxable for Federal purposes, nor that the regulations prescribed for the assessment and collection of the tax are subject to any constitutional objections. Stripped of every difficulty of that kind, as the case confessedly is, the great central question which arises is, what did the lawmakers mean when they enacted that any such company that may have declared any dividend in scrip or money, due or payable to its stockholders, including non-residents, whether citizens or aliens, as part of the earnings, profits, income, or gains of such company, and all profits of such company carried to the account of any fund, or used for construction, shall be subject to and pay a tax of 5 per centum on the amount of all such interest or coupons, dividends or profits, whenever and wherever the same shall be payable? Congress, it is insisted by the United States, intended to tax that accrued fund in the hands of the railroad company, in whatever form it might be; whether it existed as accumulated interest or in coupons representing interest, or in a dividend declared, or in a special fund of any kind, and without respect to the time of payment or the person or persons to whom it was ultimately payable. Every element of that proposition is denied by the plaintiffs, and as a means of refuting it they have entered into an extended and critical review of all the principal features of the prior acts providing for the collection of internal revenue duties. Where a section or clause of a statute is ambiguous, much aid, it is admitted, may be derived in ascertaining its meaning by comparing the section or clause in question with prior statutes in pari materiâ, but it cannot be admitted that such a resort is a proper one where the language employed by the legislature is plain and free of all uncertainty, as the true rule in such a case is to hold that the statute speaks its own construction. Much criticism is bestowed upon the corresponding provisions in the prior acts in order to show that Congress never intended to tax the railroad company at all, and that the tax, in view of the circumstances, cannot be sustained against the shareholder as a tax on income for the half-year specified in the statement, as the dividend was not made payable to the stockholder until the 17th of January of the succeeding year; and the court, if the tax could be regarded as one imposed upon the shareholder, would be inclined to concur with the plaintiffs that a dividend, neither due nor payable to the shareholder within a given year, could not be taxed to the shareholder as income of that year under the internal revenue laws which were in operation at the time the tax in question was assessed and collected. Concede all that and still the court is of the opinion that the concession cannot benefit the plaintiffs, as the tax, by the very terms of the act imposing it, is a tax on the railroad company to be assessed and collected in the manner and by the means prescribed in the act imposing the tax, and having come to that conclusion it will not be necessary to examine very critically the machinery enacted in prior laws for the assessment and collection of income taxes against individuals, as the court is of the opinion that those regulations afford little or no aid in solving any material question involved in this record. Attention was called during the argument to the fact that the railroad company is authorized, by the same section which imposes the tax, to deduct and withhold from all payments on account of any interest or coupons and dividends, due and payable as aforesaid, the tax of 5 per centum, and that the payment of the amount of the tax so deducted from the interest or coupons or dividends, and certified by the president or treasurer of the company, is made a discharge to the company for the amount of the tax so paid, deducted, and withheld, except where the company may have otherwise contracted. [] Attempt is made to invoke that provision as showing that the tax is a tax on the shareholder and not a tax on the railroad company, but the court is unable to perceive that the argument has any foundation whatever, as the provision does not contain a word inconsistent with the preceding part of the section, which in terms imposes the tax upon the railroad company. Beyond doubt those two provisions should be construed together, and when so construed they are perfectly consistent and show to the entire satisfaction of the court that the plaintiffs are liable to pay the tax in controversy. They are so liable because it appears that they, as such company, having been indebted for money, issued bonds, or other evidences of indebtedness, payable with interest, or with coupons representing interest, in one or more years after date, and that they declared a dividend in money due or payable to their stockholders as part of the earnings, profits, income, or gains of such company, and the section provides that such a company under such circumstances shall be subject to and pay a tax of 5 per centum on the amount of all such interest or coupons, dividends or profits, and authorizes the company to deduct and withhold the amount of the tax from the dividend due or payable to their stockholders. Different regulations for the assessment and collection of the income taxes of every kind were prescribed in the prior laws imposing internal revenue duties, but they were not in all respects satisfactory, and many controversies had arisen calling in question the action of the revenue officers in their efforts to enforce the collection of that branch of the public revenue. Contrariety of decision had resulted in some instances, and the Circuit Court had decided in one case that a railroad company could not deduct and withhold the amount of such a tax from a dividend due and payable to a non-resident alien, the presiding justice being of opinion that the language of the prior act did not warrant the conclusion that Congress intended to include such holders of the bonds or certificates in the category of persons liable to such an assessment. [] Congress, accordingly, in order to remove those difficulties, imposed the tax upon the railroad company, and enacted that the company should pay the same whenever and wherever the dividend should be payable, and to whatsoever party or person the same should belong, showing beyond the possibility of doubt that Congress intended to hold the railroad company absolutely and solely liable for the tax, reserving to the company the right, which is equally unqualified, of deducting and withholding from the dividend the amount of the tax, whether the dividend was due or payable to the stockholder before or subsequent to the payment of the tax, and wholly irrespective of the question whether the stockholder was a resident or non-resident, or citizen or non-resident alien. Payment of the tax by the company is an absolute requirement, just as much so as if the company was the actual holder of the bonds and the real owner of the dividends, whether they deduct and withhold the amount from the dividends or not, and the fact that the company is permitted to do so, if they see fit, does not in the slightest degree change the relation of the company to the United States, as the taxpayers under that section of the law imposing internal revenue duties. Confirmation of that view is also derived from the regulations for the assessment and collection of the tax contained in the same section, which require that a return shall be made and rendered to the assessor or assistant assessor on or before the 10th day of the month following that in which said interest, coupons, or dividends become due and payable, and as often as every six months, and that the return shall contain a true and faithful account of the tax, with a declaration annexed thereto, of the president or treasurer of the company, verifying that statement under oath or affirmation. All these regulations apply to the company, and the provision is that the company, if they make default, either in rendering the return or in the payment of the tax, shall forfeit as a penalty the sum of $1000, and that the tax and the penalty shall be assessed and collected as in other cases of neglect or refusal. Special reference is made by the plaintiffs to the regulation enacted in the 119th section of the act of the 2d of March, 1867, that taxes on income herein imposed shall be levied on the 1st day of March in each year, and be due and payable on or before the 30th day of April in the same year, as inconsistent with the theory assumed by the United States, but the court is not able to perceive that the objection is entitled to any weight, as the income taxes therein imposed are required to be assessed on the incomes of individuals, and the 117th section of the same act expressly authorizes the individual to omit from his return of gains, profits, and income the amount of income received from institutions or corporations whose officers, as required by law, withhold a per centum of the dividends made by such institutions and pay the same to the officer authorized to receive such payments. Important amendments were made by that act to some of the sections of the prior act, but the 122d section, under which the tax in controversy was assessed, was left in full force and operation, without any change, alteration, or modification of any kind. Such a dividend as that made by a railroad company is not required to be included in the return made by the shareholder of his gains, profits, and income, but is expressly required by law to be returned by the president or treasurer of the railroad company, as before explained, and the act of Congress in terms provides that the company shall be liable to and pay the tax, no matter when or where or to whatsoever party or person the dividend may be payable. [] Prior to that time the rule had been different, as the 116th section of the act of the 3d of March, 1865, expressly required that the amount of income received from such institutions by a shareholder should be included in his return to the assessor, but the power to lay and collect taxes for Federal purposes is vested in Congress, and Congress having repealed that provision and substituted another in its place, requiring the return to be made by the president or treasurer of the company, and having finally authorized the shareholders to omit the amounts received from that source from their returns, the argument would seem to be concluded unless it be assumed that some one or all of these regulations transcend the power of Congress under the Constitution, which is not pretended. [†] Argument to show that a railroad company may be taxed for Federal purposes is certainly unnecessary, as the theory is not controverted, and the proposition that the dividends of such a company are the proper objects of such taxation is also self-evident. Congress may tax such a dividend before it is paid to the holders of the securities, either as the property of the company or of the shareholders, at the election of Congress, nor can either party have any just ground of complaint if proper regulations are enacted to apportion and distribute the burden. Power to tax either the company or the shareholder being admitted, the only question which can arise in this case is a question of construction, and the court is of the opinion that the act of Congress imposes the tax in controversy upon the railroad company. Having come to that conclusion it is not necessary to enter into any discussion of the question whether the action of trespass will lie in such a case against the collector of the revenue. He acts under a warrant or other process from the assessor, and it may well be doubted whether he can be regarded as a trespasser unless it appears that he exceeds his jurisdiction. Several cases decide that the party taxed must pay the tax and bring assumpsit to recover back the money. [] Neither party, however, raised any such questions in the court below, nor has it been discussed in this court, and in view of those facts the court is not inclined to decide it at the present time.",in the first class.
+396,88740,1,2,"Internal revenue taxes were assessed against the corporation plaintiffs by the assessor of the first collection district charged with that duty, and the plaintiffs denying the legality of the assessment refused to pay the tax, and the collector having distrained the goods and chattels mentioned in the declaration, as the means of enforcing payment, the plaintiffs brought an action of trespass against him and his deputy, claiming damages for the alleged unlawful seizure and detention of the goods and chattels. Enough appears in the record to show that the plaintiffs are a railroad company; that being indebted for money to a large amount they issued bonds for the same, or other evidences of indebtedness, payable with interest, or with coupons representing interest, in one or more years subsequent to their date. On the 10th of January, 1870, the railroad company declared a dividend in money amounting to the sum of $43,567.63 on their capital stock as part of their income and gains made, and which accrued between the 1st of July, 1869, and the 1st of January following. Apart from the dividend an instalment of semi-annual interest also fell due at the same time, amounting to $21,000, which accrued during the same six months for which the dividend of the income and gains was declared. Due return was made by the railroad company of the amount of the dividend and interest to the assessor of internal revenue for the first collection district, and a tax of 5 per cent. on the amount was assessed by the proper revenue authorities, which is the tax in controversy, and for which the distraint was made, as alleged in the pleadings. Detailed statement of the pleadings is unnecessary, as they are the same as in the preceding case, and all the questions presented for decision are the same except one, which will be made the subject of special examination. Judgment was rendered for the plaintiffs in the Circuit Court, and the defendants brought a writ of error and removed the cause into this court. Such a dividend, declared by such a company, in money, due or payable to their stockholders as part of the earnings, profits, income, or gains of the company, it was decided in the preceding case rendered the company liable to the tax of 5 per cent. on the amount of such income or gains, as more fully explained in the opinion delivered in that case, and the court is of the opinion that the tax on the semi-annual instalment of interest is within the same principle, and that it must be governed by the same rule. Suppose that is so, still it is insisted by the plaintiffs that the rule there adopted is not applicable in this case, as the dividend was not declared within the six months specified in the pleadings, and because neither the dividend nor the interest was due or payable to the stockholders until the 10th of January following. Beyond doubt the two cases differ in that respect, and the question in this case is whether the admitted fact that the dividend was not declared within the half-year during which the income and gains were made takes the case out of the rule adopted in the other case. Much weight would be due to that suggestion if the tax was a tax upon the shareholder, but the court has already decided that the tax imposed by that provision is a tax upon the railroad company, and the court adheres to that conclusion, which is confirmed by the fact that the object made taxable by that section is not only any dividend declared, but the language also extends to all profits of such company carried to the account of any fund, or used for construction, showing that Congress intended that such company shall be subject to and pay a tax of 5 per centum on the amount of all such interest or coupons, dividends or profits, whenever and wherever the same shall be payable and to whatsoever party or person the same may ultimately belong. Tested by these considerations it is quite clear that it is the fund which accrued within the half-year which Congress intended to tax, and the record shows that every dollar of the fund taxed in this case accrued within the last six months of the year preceding the time when the dividend was actually declared. Although the dividend was not declared until the 10th of January, 1870, yet it is true that the object taxed is the fund which accrued within the last six months of the preceding year, and it is certain that the fund taxed does not include a dollar of the income or gains of the company for the succeeding year. Concede that, and still it is insisted by the plaintiffs that the dividend cannot be regarded as income and gains of the company for the six months specified in the pleadings, because it was not actually declared as such by the company within that period, but the court is not able to adopt that construction of the act, as it would enable the company to postpone the payment of such a tax for six months or even for a year whenever they pleased, by omitting to declare a dividend, which would be inconsistent with the plain intent of Congress as manifested by the language employed in the section imposing the tax. Taxes illegally exacted under the revenue laws of the United States may be recovered back, if paid under protest, in an action of assumpsit against the collector, but the person taxed cannot enjoin the collector from enforcing payment, and very grave doubts are entertained whether trespass against the collector is a proper remedy under existing laws. No such error, however, having been assigned in the case the court will not decide the point at the present time. []",in the second class of cases.
+397,110076,2,1,"Under § 1343 (3), Congress has created federal jurisdiction of any civil action authorized by law to redress the deprivation under color of state law of any right, privilege or immunity secured [1] by the Constitution of the United States or [2] by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States. Claimants correctly point out that the first prepositional phrase can be fairly read to describe rights secured by the Supremacy Clause. For even though that Clause is not a source of any federal rights, it does secure federal rights by according them priority whenever they come in conflict with state law. [29] In that sense all federal rights, whether created by treaty, by statute, or by regulation, are secured by the Supremacy Clause. In Swift & Co. v. Wickham, 382 U. S. 111, the Court was confronted with an analogous choice between two interpretations of the statute defining the jurisdiction of three-judge district courts. [30] The comprehensive language of that statute, 28 U. S. C. § 2281 (1970 ed.), [31] could have been broadly read to encompass statutory claims secured by the Supremacy Clause or narrowly read to exclude claims that involve no federal constitutional provision except that Clause. After acknowledging that the broader reading was consistent not only with the statutory language but also with the policy of the statute, the Court accepted the more restrictive reading. Its reasoning is persuasive and applicable to the problems confronting us in this case. This restrictive view of the application of § 2281 is more consistent with a discriminating reading of the statute itself than is the first and more embracing interpretation. The statute requires a three-judge court in order to restrain the enforcement of a state statute `upon the ground of the unconstitutionality of such statute.' Since all federal actions to enjoin a state enactment rest ultimately on the Supremacy Clause, the words `upon the ground of the unconstitutionality of such statute' would appear to be superfluous unless they are read to exclude some types of such injunctive suits. For a simple provision prohibiting the restraint of the enforcement of any state statute except by a three-judge court would manifestly have sufficed to embrace every such suit whatever its particular constitutional ground. It is thus quite permissible to read the phrase in question as one of limitation, signifying a congressional purpose to confine the three-judge court requirement to injunction suits depending directly upon a substantive provision of the Constitution, leaving cases of conflict with a federal statute (or treaty) to follow their normal course in a single-judge court. Swift & Co. v. Wickham, supra, at 126-127 (footnotes omitted). Just as the phrase in § 2281—upon the ground of the unconstitutionality of such statute—would have been superfluous unless read as a limitation on three-judge-court jurisdiction, so is it equally clear that the entire reference in § 1343 (3) to rights secured by an Act of Congress would be unnecessary if the earlier reference to constitutional claims embraced those resting solely on the Supremacy Clause. More importantly, the additional language which describes a limited category of Acts of Congress—those providing for equal rights of citizens—plainly negates the notion that jurisdiction over all statutory claims had already been conferred by the preceding reference to constitutional claims. Thus, while we recognize that there is force to claimants' argument that the remedial purpose of the civil rights legislation supports an expansive interpretation of the phrase secured by the Constitution, it would make little sense for Congress to have drafted the statute as it did if it had intended to confer jurisdiction over every conceivable federal claim against a state agent. In order to give meaning to the entire statute as written by Congress, we must conclude that an allegation of incompatibility between federal and state statutes and regulations does not, in itself, give rise to a claim secured by the Constitution within the meaning of § 1343 (3).",The Supremacy Clause
+398,110076,2,3,"It follows from what we have said thus far that § 1343 does not confer federal jurisdiction over the claims based on the Social Security Act unless that Act may fairly be characterized as a statute securing equal rights within § 1343 (3) or civil rights within § 1343 (4). The Social Security Act provisions at issue here authorize federal assistance to participating States in the provision of a wide range of monetary benefits to needy individuals, including emergency assistance and payments necessary to provide food and shelter. Arguably, a statute that is intended to provide at least a minimum level of subsistence for all individuals could be regarded as securing either equal rights or civil rights. [39] We are persuaded, however, that both of these terms have a more restrictive meaning as used in the jurisdictional statute. The Social Security Act does not deal with the concept of equality or with the guarantee of civil rights, as those terms are commonly understood. The Congress that enacted § 1343 (3) was primarily concerned with providing jurisdiction for cases dealing with racial equality; the Congress that enacted § 1343 (4) was primarily concerned with providing jurisdiction for actions dealing with the civil rights enumerated in 42 U. S. C. § 1985, and most notably the right to vote. While the words of these statutes are not limited to the precise claims which motivated their passage, [40] it is inappropriate to read the jurisdictional provisions to encompass new claims which fall well outside the common understanding of their terms. Our conclusion that the Social Security Act does not fall within the terms of either § 1343 (3) or (4) is supported by this Court's construction of similar phrases in the removal statute, 28 U. S. C. § 1443. The removal statute makes reference to any law providing for the equal civil rights of citizens and any law providing for equal rights. In construing these phrases in Georgia v. Rachel, 384 U. S. 780, this Court concluded: The present language `any law providing for . . . equal civil rights' first appeared in § 641 of the Revised Statutes of 1874. When the Revised Statutes were compiled, the substantive and removal provisions of the Civil Rights Act of 1866 were carried forward in separate sections. Hence, Congress could no longer identify the rights for which removal was available by using the language of the original Civil Rights Act—`rights secured to them by the first section of this act.' The new language it chose, however, does not suggest that it intended to limit the scope of removal to rights recognized in statutes existing in 1874. On the contrary, Congress' choice of the open-ended phrase `any law providing for . . . equal civil rights' was clearly appropriate to permit removal in cases involving `a right under' both existing and future statutes that provided for equal civil rights. There is no substantial indication, however, that the general language of § 641 of the Revised Statutes was intended to expand the kinds of `law' to which the removal section referred. In spite of the potential breadth of the phrase `any law providing for . . . equal civil rights,' it seems clear that in enacting § 641, Congress intended in that phrase only to include laws comparable in nature to the Civil Rights Act of 1866. . . . ..... . . . As the Court of Appeals for the Second Circuit has concluded, § 1443 `applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights . . . .' `When the removal statute speaks of any law providing for equal rights, it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U. S. C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' New York v. Galamison, 342 F. 2d 255, 269, 271. See also Gibson v. Mississippi, 162 U. S. 565, 585-586; Kentucky v. Powers, 201 U. S. 1, 39-40; City of Greenwood v. Peacock, [384 U. S. 808,] 825. Id., at 789-790, 792 (footnotes omitted). In accord with Georgia v. Rachel , [41] the Courts of Appeals have consistently held that the Social Security Act is not a statute providing for equal rights. See Andrews v. Maher, 525 F. 2d 113 (CA2 1975); Aguayo v. Richardson, 473 F. 2d 1090, 1101 (CA2 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U. S. 1146 (1974). We endorse those holdings, and find that a similar conclusion is warranted with respect to § 1343 (4) as well. See McCall v. Shapiro, 416 F. 2d 246, 249 (CA2 1969). We therefore hold that the District Court did not have jurisdiction in either of these cases. Accordingly, the judgment in No. 77-5324 is affirmed, and the judgment in No. 77-719 is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.",The Social Security Act
+399,110109,1,3,"Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Id., at 364 (emphasis added). Accord, Patterson v. New York, 432 U. S., at 210. The petitioner here was charged with and convicted of deliberate homicide, committed purposely or knowingly, under Mont. Code Ann. § 45-5-102 (a) (1978). See App. 3, 42. It is clear that under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide. [10] Indeed, it was the lone element of the offense at issue in Sandstrom's trial, as he confessed to causing the death of the victim, told the jury that knowledge and purpose were the only questions he was controverting, and introduced evidence solely on those points. App. 6-8. Moreover, it is conceded that proof of defendant's intent would be sufficient to establish this element. [11] Thus, the question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner's state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error. We consider first the validity of a conclusive presumption. This Court has considered such a presumption on at least two prior occasions. In Morissette v. United States, 342 U. S. 246 (1952), the defendant was charged with willful and knowing theft of Government property. Although his attorney argued that for his client to be found guilty, the taking must have been with felonious intent, the trial judge ruled that [t]hat is presumed by his own act. Id., at 249. After first concluding that intent was in fact an element of the crime charged, and after declaring that [w]here intent of the accused is an ingredient of the crime charged, its existence is . . . a jury issue, Morissette held:  It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a `presumption' a conclusion which a court thinks probable from given facts. . . . [But] [w]e think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Id., at 274-275. (Emphasis added; footnote omitted.) Just last Term, in United States v. United States Gypsum Co., 438 U. S. 422 (1978), we reaffirmed the holding of Morissette. In that case defendants, who were charged with criminal violations of the Sherman Act, challenged the following jury instruction: The law presumes that a person intends the necessary and natural consequences of his acts. Therefore, if the effect of the exchanges of pricing information was to raise, fix, maintain, and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended that result. 438 U. S., at 430. After again determining that the offense included the element of intent, we held: [A] defendant's state of mind or intent is an element of a criminal antitrust offense which . . . cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices. Cf. Morissette v. United States . . . . ..... Although an effect on prices may well support an inference that the defendant had knowledge of the probability of such a consequence at the time he acted, the jury must remain free to consider additional evidence before accepting or rejecting the inference. . . . [U]ltimately the decision on the issue of intent must be left to the trier of fact alone. The instruction given invaded this factfinding function. Id., at 435, 446 (emphasis added). See also Hickory v. United States, 160 U. S. 408, 422 (1896). As in Morissette and United States Gypsum Co., a conclusive presumption in this case would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime, and would invade [the] factfinding function which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom's jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and ordinary consequences of defendant's action), Sandstrom's jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged, 397 U. S., at 364, and defendant was deprived of his constitutional rights as explicated in Winship. A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom's jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U. S. 684 (1975). In Mullaney, the charge was murder, which under Maine law required proof not only of intent but of malice. The trial court charged the jury that `malice aforethought is an essential and indispensable element of the crime of murder.' Id., at 686. However, it also instructed that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. Ibid. As we recounted just two Terms ago in Patterson v. New York , [t]his Court . . . unanimously agreed with the Court of Appeals that Wilbur's due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation. 432 U. S., at 214. And Patterson reaffirmed that a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant by means of such a presumption. Id., at 215. Because David Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional.","In Winship, this Court stated:"
+400,105004,1,1,"C. JURISDICTION. ..... ART. 15. NOT EXCLUSIVE.—The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. 39 Stat. 651, 652, 653. [17] Article 15 thus forestalled precisely the contention now being made by petitioner. That contention is that certain provisions, added in 1916 by Articles 2 and 12 extending the jurisdiction of courts-martial over civilian offenders and over certain nonmilitary offenses, automatically deprived military commissions and other military tribunals of whatever existing jurisdiction they then had over such offenders and offenses. Articles 2 and 12, together, extended the jurisdiction of courts-martial so as to include all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . . [18] The 1916 Act also increased the nonmilitary offenses for which civilian offenders could be tried by courts-martial. [19] Article 15, however, completely disposes of that contention. It states unequivocally that Congress has not deprived such commissions or tribunals of the existing jurisdiction which they had over such offenders and offenses as of August 29, 1916. 39 Stat. 653, 670. See In re Yamashita, 327 U. S. 1, and Ex parte Quirin, 317 U. S. 1. The legislative history strengthens the Government's position. During the consideration by Congress of the proposed Articles of War, in 1916, Judge Advocate General of the Army Crowder sponsored Article 15 and the authoritative nature of his testimony has been recognized by this Court. In re Yamashita, supra, at 19 note, 67-71. Before the Senate Subcommittee on Military Affairs he said: Article 15 is new. We have included in article 2 as subject to military law a number of persons who are also subject to trial by military commission. A military commission is our common-law war court. It has no statutory existence, though it is recognized by statute law. As long as the articles embraced them in the designation `persons subject to military law,' and provided that they might be tried by court-martial, I was afraid that, having made a special provision for their trial by court-martial, it might be held that the provision operated to exclude trials by military commission and other war courts; so this new article was introduced: . . . . It just saves to these war courts the jurisdiction they now have and makes it a concurrent jurisdiction with courts-martial, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient. S. Rep. No. 130, 64th Cong., 1st Sess. 40. [20] The concurrent jurisdiction thus preserved is that which by statute or by the law of war may be triable by such military commissions, provost courts, or other military tribunals. (Emphasis supplied.) 39 Stat. 653, 41 Stat. 790, 10 U. S. C. § 1486. The law of war in that connection includes at least that part of the law of nations which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of civil government. [21] The jurisdiction exercised by our military commissions in the examples previously mentioned extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress. In the case of In re Yamashita, 327 U. S. 1, 20, following a quotation from Article 15, this Court said, By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military commission contemplated by the common law of war. [22] The enlarged jurisdiction of the courts-martial therefore did not exclude the concurrent jurisdiction of military commissions and of tribunals in the nature of such commissions. III. The United States Courts of the Allied High Commission for Germany were, at the time of the trial of petitioner's case, tribunals in the nature of military commissions conforming to the Constitution and laws of the United States. —Under the authority of the President as Commander-in-Chief of the United States Armed Forces occupying a certain area of Germany conquered by the allies, the system of occupation courts now before us developed gradually. The occupation courts in Germany are designed especially to meet the needs of law enforcement in that occupied territory in relation to civilians and to nonmilitary offenses. Those courts have been directed to apply the German Criminal Code largely as it was theretofore in force. (See Appendix, infra, pp. 362-371, entitled Chronology of Establishment of United States Military Government Courts and Their Jurisdiction Over Civilians in the United States Area of Control in Germany 1945-1950.) The President, as Commander-in-Chief of the Army and Navy, in 1945 established, through the Commanding General of the United States Forces in the European Theater, a United States Military Government for Germany within the United States Area of Control. Military Government Courts, in the nature of military commissions, were then a part of the Military Government. By October 20, 1949, when petitioner was alleged to have committed the offense charged against her, those courts were known as United States Military Government Courts. They were vested with jurisdiction to enforce the German Criminal Code in relation to civilians in petitioner's status in the area where the homicide occurred. September 21, 1949, the occupation statute had taken effect. Under it the President vested the authority of the United States Military Government in a civilian acting as the United States High Commissioner for Germany. He gave that Commissioner authority, under the immediate supervision of the Secretary of State (subject, however, to consultation with and ultimate direction by the President), to exercise all of the governmental functions of the United States in Germany (other than the command of troops) . . . . Executive Order 10062, June 6, 1949, 14 Fed. Reg. 2965, Appendix, infra, p. 367; Office of the United States High Commissioner for Germany, Staff Announcement No. 1, September 21, 1949, Appendix, infra, p. 368. Under the Transitional Provisions of Allied High Commission, Law No. 3, Article 5, 14 Fed. Reg. 7458, Appendix, infra, p. 369, preexisting legislation was applied to the appropriate new authorities. Finally by Allied High Commission, Law No. 1, Article 1, 15 Fed. Reg. 2086, Appendix, infra, p. 370, effective January 1, 1950, the name of the United States Military Government Courts for Germany was changed to United States Courts of the Allied High Commission for Germany. They derived their authority from the President as occupation courts, or tribunals in the nature of military commissions, in areas still occupied by United States troops. Although the local government was no longer a Military Government, it was a government prescribed by an occupying power and it depended upon the continuing military occupancy of the territory. The government of the occupied area thus passed merely from the control of the United States Department of Defense to that of the United States Department of State. The military functions continued to be important and were administered under the direction of the Commander of the United States Armed Forces in Germany. He remained under orders to take the necessary measures, on request of the United States High Commissioner, for the maintenance of law and order and to take such other action as might be required to support the policy of the United States in Germany. Executive Order 10062, supra. The judges who served on the occupation courts were civilians, appointed by the United States Military Governor for Germany, and thereafter continued in office or appointed by the United States High Commissioner for Germany. Their constitutional authority continued to stem from the President. The members of the trial court were designated by the Chief Presiding District Judge as a panel to try the case. The volume of business, the size of the area, the number of civilians affected, the duration of the occupation and the need for establishing confidence in civilian procedure emphasized the propriety of tribunals of a nonmilitary character. [23] With this purpose, the Military Government Courts for Germany, substantially from their establishment, have had a less military character than that of courts-martial. [24] In 1948, provision was made for the appointment of civilian judges with substantial legal experience. The rights of individuals were safeguarded by a code of criminal procedure dealing with warrants, summons, preliminary hearings, trials, evidence, witnesses, findings, sentences, contempt, review of cases and appeals. [25] This subjected German and United States civilians to the same procedures and exhibited confidence in the fairness of those procedures. [26] It is suggested that, because the occupation statute took effect September 21, 1949, whereas the crime charged occurred October 20, 1949, the constitutional authority for petitioner's trial by military commission expired before the crime took place. Such is not the case. The authority for such commissions does not necessarily expire upon cessation of hostilities or even, for all purposes, with a treaty of peace. It may continue long enough to permit the occupying power to discharge its responsibilities fully. Santiago v. Nogueras, 214 U. S. 260; Neely v. Henkel, 180 U. S. 109, 124; Burke v. Miltenberger, 19 Wall. 519; Leitensdorfer v. Webb, 20 How. 176; Cross v. Harrison, 16 How. 164. [27] IV. Petitioner and the offense charged against her came within the jurisdiction assigned to the court which tried her. —Under United States Military Government Ordinance No. 31, August 18, 1948, Article 7, 14 Fed. Reg. 126, Appendix, infra, p. 365, the United States gave its Military Government District Courts criminal jurisdiction over all persons in the United States Area of Control except persons, other than civilians, who are subject to military, naval or air force law and are serving with any forces of the United Nations. It thus excepted from the jurisdiction of those occupation courts military men and women who were subject to military law but expressly gave those courts jurisdiction over civilian men and women who were subject to military law. Article of War 2 (d) further defined any person subject to military law as including all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States . . . . [28] This included petitioner. Article 7 of United States Military Government Ordinance No. 31 further provided, however, that No person subject to military law of the United States shall be brought to trial for any offense except upon authorization of the Commander-in-Chief, European Command. 14 Fed. Reg. 126, Appendix, infra, p. 365. That authorization appears in the official correspondence relating to the case of Wilma B. Ybarbo. The correspondence includes a written endorsement from the proper authority, dated December 11, 1948, covering not only the Ybarbo case but also the case of any dependent of a member of the United States Armed Forces . . . . See Appendix, infra, p. 367. The applicability of the German Criminal Code to petitioner's offense springs from its express adoption by the United States Military Government. The United States Commanding General, in his Proclamation No. 2, September 19, 1945, stated that, except as abrogated, suspended or modified by the Military Government or by the Control Council for Germany, the German law in force at the time of the occupation shall be applicable in each area of the United States Zone of Occupation . . . . 12 Fed. Reg. 6997, Appendix, infra, p. 363. [29] Section 211 of the German Criminal Code accordingly was applicable to petitioner on October 20, 1949. The United States also expressly required that its civilians be tried by its occupation courts rather than by the German courts. United States Military Government Law No. 2, German courts, Art. VI (i) (c) and (d), 12 Fed. Reg. 2191, 2192, Appendix, infra, p. 364. United States Military Government Ordinance No. 2, Art. II (2) (iii), 12 Fed. Reg. 2190-2191, Appendix, infra, p. 363. The jurisdiction of the United States Courts of the Allied High Commission for Germany to try petitioner being established, the judgment of the Court of Appeals affirming the discharge of the writ of habeas corpus for petitioner's release from custody is Affirmed.",courts-martial. .....
+401,109604,2,1,"On May 22, 1969, Chris-Craft filed suit seeking both damages and injunctive relief in the United States District Court for the Southern District of New York. Chris-Craft alleged that Bangor's block purchases of 120,200 Piper shares in mid-May violated Rule 10b-6 and that Bangor's May 8 press release, announcing an $80 valuation of Bangor securities to be offered in the forthcoming exchange offer, violated SEC gun-jumping provisions, 15 U. S. C. § 77e (c), and SEC Rule 135, 17 CFR § 230.135 (1976). Chris-Craft sought to enjoin Bangor from voting the Piper shares purchased in violation of Rule 10b-6 and from accepting any shares tendered by Piper stockholders pursuant to the exchange offer.","Chris-Craft's Initial Suit May 22, 1969"
+402,109604,2,2,"On July 22, 1969, Chris-Craft moved for a preliminary injunction against Bangor. In an opinion filed August 19, 1969, United States District Judge Charles Tenney denied relief. Judge Tenney concluded, first, that the May 8 press release had not violated the gun-jumping provisions, and, second, that Bangor's block purchases of Piper stock were not inconsistent with Rule 10b-6. Bangor Punta's cash purchases . . . , effected neither on the Exchange nor from or through a broker or dealer, were obviously not designed to place market pressures on the distribution price of Piper, so as to create an artificially high price for this security. 303 F. Supp. 191, 198. (Emphasis supplied.) [8] Judge Tenney, accordingly, concluded that neither irreparable injury nor likelihood of probable success on the merits had been established, particularly since the contest for control was still open. [B]oth the Chris-Craft and Bangor Punta exchange offers have expired. Neither party has gained control of Piper, and both are still in a position to do so. Id., at 199.","District Court Decision on Preliminary Injunction August 19, 1969"
+403,109604,2,3,"On appeal, the Court of Appeals for the Second Circuit, sitting en banc, affirmed Judge Tenney's denial of injunctive relief. 426 F. 2d 569 (1970). In an opinion by Judge Waterman, the court held that Bangor had properly been allowed to continue soliciting Piper stock. Chris-Craft was free [at the time of the District Court's decision] to compete equally with Bangor Punta for the remaining Piper shares, and it did so. We do not understand Chris-Craft to allege that prior misdeeds of Bangor Punta so determined the course of the competition. . . that Chris-Craft was placed at any real disadvantage. Id., at 573. The court concluded, however, that Bangor had violated SEC gun-jumping provisions and Rule 10b-6, unless the three block purchases fell within an established exemption to the Rule. [9] Chief Judge Lumbard in dissent agreed that injunctive relief was unwarranted, but also accepted the District Court's determination that Bangor had not violated the securities laws. [10] Id., at 579. The Court of Appeals remanded the case for further proceedings, so that Bangor, among other things, could attempt to establish that its block purchases fell within an exemption to Rule 10b-6.","Court of Appeals' Decision on Preliminary Injunction April 28, 1970"
+404,109604,2,4,"While Chris-Craft's private suit was pending, the SEC sought an injunction against Bangor on account of the BAR omission in Bangor's registration statement. The SEC sought both an offer of rescission to Piper shareholders who accepted Bangor's exchange offer and an injunction against Bangor from violating the Securities Act of 1933 and the 1934 Act. In an opinion by Judge Pollack, the District Court concluded that Bangor's registration statement was unintentionally misleading by virtue of the failure to disclose the fact that an offer had been received for the sale of the BAR. Accordingly, the court required Bangor to offer rescission to tendering Piper shareholders; however, the District Court refused to grant an injunction against future violations of the securities laws on the ground that the SEC had failed to establish that Bangor and its officials had a propensity or natural inclination to violate the securities law. SEC v. Bangor Punta Corp., 331 F. Supp. 1154, 1163 (1971).","District Court Decision on SEC Injunction August 25, 1971"
+405,109604,2,5,"On remand from the Court of Appeals, Chris-Craft's private action also came before Judge Pollack. Although its second amended complaint, which added a claim based on the BAR omission, sought both damages and injunctive relief, Chris-Craft at a pretrial hearing expressly abandoned its prayer for equitable relief; the case was thereafter treated solely as an action for damages. 337 F. Supp. 1128, 1136 n. 8. Following trial before the District Court without a jury, Judge Pollack in December 1971 dismissed Chris-Craft's complaint against all defendants. In an exhaustive opinion, he concluded that Chris-Craft had standing to seek damages for Bangor's Rule 10b-6 violations, 337 F. Supp., at 1133, but found it unnecessary to decide whether § 14 (e) could be invoked by one competitor for corporate control against another. 337 F. Supp., at 1134. [11] On the merits, the District Court held that the Piper communications characterizing Chris-Craft's cash tender offer as inadequate were not misleading. The court concluded that the more rational view was that the statements referred to factors other than price, such as Piper's views as to the quality of Chris-Craft's management. Id., at 1135. The court also rejected Chris-Craft's contention that it had been injured by the omission in the Grumman press release concerning the put or option provision in the agreement. The District Court concluded that Piper's complete description of the provision in a listing application with the New York Stock Exchange, coupled with Chris-Craft's major acquisitions of Piper stock after learning of the put, undermined Chris-Craft's claim that it was misled or otherwise injured by the announcement of the Grumman transaction. Ibid. With respect to the May 8 press release, which the Court of Appeals had held violative of the gun-jumping rules, the District Court held that the release, although technically a violation, was not false or misleading. Moreover, Chris-Craft had failed to show that it was injured or disadvantaged by the release in its efforts to acquire Piper stock. Id., at 1137. As to the claim of a misleading valuation of the BAR, Judge Pollack held that Chris-Craft failed to show either scienter or causation as required in a damages action under the 1934 Act's antifraud provisions. Scienter was not established, the court concluded, since the BAR omission was mere negligent omission or misstatement of fact. Id., at 1140. As to causation, the District Court specifically distinguished this Court's decision in Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), which established a presumption of causation in a § 14 (a) suit by minority shareholders challenging misleading proxy materials. The omission in the proxy statement in that case, the District Court reasoned, directly affected the shareholders on whose behalf the suit was brought: It was in that particular context that the Supreme Court deemed sufficient a set of facts under which shareholders could be misled. This does not aid Chris-Craft as it is seeking to recover because of the effect which a misstatement allegedly had on third parties. 337 F. Supp., at 1139. (Emphasis in original.) (Footnote omitted.) Given the differences between the instant case and Mills, the District Court went on to hold that proof of actual causation was required: There is no proof that a single exchanging Piper shareholder would have refrained from the exchange and taken an offer for his shares from Chris-Craft instead of that from Bangor Punta. In a damage suit, as distinct from one for equitable relief, such proof is essential to sustain a 10b-5 claim. Ibid. (Emphasis in original.) On Chris-Craft's Rule 10b-6 claim, Judge Pollack held that, although the block purchases did not fall within any exemption to the Rule, Chris-Craft had no right to recovery: Even granting that the block purchases resulted arithmetically in Bangor Punta's achievement of control, there is no basis for concluding that, absent Bangor Punta's acquisition of these blocks, Chris-Craft would have achieved its goal of control. Id., at 1142. Based on its findings with respect to Piper and Bangor Punta, the District Court also held in favor of First Boston; the court specifically exonerated the firm of having committed, or engaged in any course of conduct which operated as a fraud or deceit upon Chris-Craft or the public shareholders of Piper. Id., at 1145.","District Court Decision on Liability December 10, 1971"
+406,109604,2,6,"Chris-Craft appealed, and the SEC sought review of the District Court's denial of injunctive relief against Bangor Punta. In the Court of Appeals, each member of the panel wrote separately. All three members of the panel agreed that Chris-Craft had standing to sue for damages under § 14 (e) and that a claim for damages had been established. However, Judges Gurfein and Mansfield, over Judge Timbers' dissent, sustained the District Court's denial of an injunction against Bangor. Court of Appeals Majority Opinion The Court of Appeals directly answered the question concerning Chris-Craft's standing under § 14 (e), which the District Court had not decided. [12] The Court of Appeals based its holding on the statute itself [§ 14 (e)] and such decisional law as there is that has touched on the question. 480 F. 2d 341, 358. The opinion noted that the Second Circuit had on four occasions [13] addressed the issue whether a private cause of action might be implied under § 14 (e). Although acknowledging that no case represented a square holding in this respect, the court interpreted the cases to intimate that such an implied right of action would be reasonable. 480 F. 2d, at 360. The court then noted that Chris-Craft could likely state a common-law tort claim in state court for interference with a `prospective advantage.' Ibid. We will not infer from the silence of the statute that Congress intended to deny a federal remedy and to extinguish a liability which, under established principles of tort law, normally attends the doing of a proscribed act. Id., at 360-361. With respect to the legislative history of § 14 (e), the Court of Appeals expressly acknowledged that the focus of congressional concern was the protection of public shareholders. Given this purpose, the court concluded: We can conceive of no more effective means of furthering the general objective of § 14 (e) than to grant a victim of violations of the statute standing to sue for damages. . . . Particularly in light of the enforcement rationale of [ J. I. Case Co. v.] Borak, [377 U. S. 426 (1964),] we believe it is both necessary and appropriate that [Chris-Craft] should be granted standing to sue for damages. 480 F. 2d, at 361. The court next reviewed the alleged § 14 (e) violations for which Chris-Craft sought damages. In contrast to the District Court's conclusions, the Court of Appeals held that Piper's description of the Chris-Craft offer as inadequate and the failure to disclose the put provision in the Grumman agreement constituted actionable violations of § 14 (e). 480 F. 2d, at 364-365. As to Bangor Punta, the Court of Appeals agreed with Judge Pollack's determination that Chris-Craft had not been injured by the gun-jumping press release of May 8; on the other hand, the court held that the BAR omission in Bangor's registration statement was actionable. The Court of Appeals expressly rejected Judge Pollack's conclusion that the registration statement was unintentionally in error. On the contrary, the Court of Appeals held that Bangor Punta's officers showed reckless disregard in failing to disclose the BAR negotiations, although the court conceded that the officers were not shown to have had an intent to defraud. Id., at 369. First Boston was likewise held culpable because its certification of the registration statement amounted to an almost complete abdication of its responsibility [as an underwriter] . . . . Id., at 373. The Court of Appeals also disagreed with the District Court's analysis of causation. Although agreeing that Chris-Craft failed to show that it would have won the takeover battle, [14] the court relied upon Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), as establishing a presumption of reliance and causation applicable to Chris-Craft. Under Mills, so the court held, we must presume that [Bangor's] offer was not so appealing, considering the BAR loss, as to have attracted any takers. 480 F. 2d, at 375. Since [Bangor] eventually acquired only about 51% of the outstanding Piper shares, it is clear that the 7% acquired through its exchange offer was critical to its success. Reliance and causation have been shown. Ibid. In addition to the § 14 (e) claim, the Court of Appeals held that Chris-Craft could recover damages for Bangor's Rule 10b-6 violations; the three block purchases had a presumptively. . . stimulating effect . . . which misled the public. 480 F. 2d, at 378. Since those purchases amounted to 7% of Piper stock, [e]ven arithmetically, it is apparent that the block purchases [by Bangor Punta] . . . were essential to achieve control. Id., at 379. The Court of Appeals then remanded with directions to the District Court to award damages in the amount of the reduction in the appraisal value of [Chris-Craft's] Piper holdings attributable to [Bangor Punta's] taking a majority position and reducing [Chris-Craft] to a minority position. . . . Id., at 380. Damages were to be awarded against all defendants jointly and severally. In addition, without discussing Chris-Craft's abandonment of its claim for equitable relief, the court instructed the District Court to enjoin Bangor for a period of at least five years from voting the Piper shares acquired through the exchange offer and in violation of Rule 10b-6. Ibid. Finally, Judge Timbers, writing in dissent on this issue, disagreed with the conclusion of Judges Mansfield and Gurfein that the SEC request for an injunction against future violations by Bangor Punta had properly been refused. In Judge Timbers' view, the District Court employed an improper proper legal standard in denying the SEC injunctive relief against Bangor. Judge Gurfein's Concurring Opinion Judge Gurfein concurred generally in Judge Timbers' opinion for the court. On the issue of standing, Judge Gurfein agreed with the District Court's approach in considering the matter as one of causation before considering the question of standing. 480 F. 2d, at 393. Under Judge Gurfein's approach, Chris-Craft had standing because Bangor's acquisitions of Piper shares were necessary for control. As to scienter, Judge Gurfein was of the view that mere negligence would not suffice but that `recklessness that is equivalent to wilful fraud' is required . . . . Ibid. (Citation omitted.) Judge Gurfein disagreed, however, with Judge Timbers' analysis of the alleged Rule 10b-6 violations. He refused to indulge the presumption of stimulating effect embraced by Judge Timbers and concluded rather that because the [illegal] block purchases were necessary for control causation was established. . . . 480 F. 2d, at 393. With respect to the SEC action against Bangor Punta, Judge Gurfein, writing for himself and Judge Mansfield, upheld the District Court's refusal to grant a permanent injunction. Applying the abuse of discretion standard, Judge Gurfein concluded that the matter is not so clear that we should substitute our judgment for the judgment of the experienced trial Judge below who sat as a chancellor in equity. Ibid. Judge Mansfield's Concurring and Dissenting Opinion Judge Mansfield concurred in the results reached by Judge Timbers, except with respect to the Piper family's liability. Judge Mansfield agreed that the Piper communications violated § 14 (e), but concluded that Chris-Craft had failed to prove damages resulting from those infractions. Applying the principles of Mills v. Electric Auto-Lite Co., supra , Judge Mansfield stated: [Chris-Craft] must show that it suffered some resulting loss. This it has failed to do. 480 F. 2d, at 401. On the other issues addressed by the majority opinion, Judge Mansfield concluded that Chris-Craft's standing under § 14 (e) rested solely on the policy of vigorous enforcement of the antifraud provisions. 480 F. 2d, at 396. As to scienter, Judge Mansfield concluded that intent to defraud had not been shown. He formulated instead the following test of scienter: In short, the scienter requirement would be met if the corporate officer (1) knew the essential facts and failed to disclose them, or (2) failed or refused, after being put on notice of a possible material failure in disclosure, to apprise himself of the facts under circumstances where he could reasonably have ascertained and disclosed them without any extraordinary effort. Id., at 398. He concluded that the actions complained of satisfied this standard. Like Judge Gurfein, Judge Mansfield declined to indulge the presumption that Bangor's Rule 10b-6 violations actually operated to make its exchange offer deceptively attractive; he concurred solely on the ground that where a party achieves control through violations of the securities laws, the party is liable as a matter of law to an injured competitor. [15]","Court of Appeals Decision on Liability March 16, 1973"
+407,109604,2,8,"In the final phase of the litigation, the Court of Appeals reversed on the damages issue and calculated Chris-Craft's damages without further remand to the District Court. The Court of Appeals fixed damages as the difference between what Chris-Craft had actually paid for Piper shares and the price at which the large minority block could have been sold at the earliest point after Bangor Punta gained control. Application of this formula produced damages in the amount of $36.98 per Piper share held by Chris-Craft, or a total of $25,793,365. 516 F. 2d 172, 190 (1975). The court instructed the District Court to recompute prejudgment interest based on the revised damages award. Id., at 191. This new computation increased Chris-Craft's prejudgment interest from $600,000 to approximately $10 million. It is this judgment which is now under review.","Court of Appeals' Opinion on Relief April 11, 1975"
+408,109604,1,3,"We turn first to an examination of the Williams Act, which was adopted in 1968 in response to the growing use of cash tender offers as a means for achieving corporate takeovers. [16] Prior to the 1960's, corporate takeover attempts had typically involved either proxy solicitations, regulated under § 14 of the Securities Exchange Act, 15 U. S. C. § 78n, or exchange offers of securities, subject to the registration requirements of the 1933 Act. § 77e. The proliferation of cash tender offers, in which publicized requests are made and intensive campaigns conducted for tenders of shares of stock at a fixed price, removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the federal securities laws. See generally S. Rep. No. 550, 90th Cong., 1st Sess., 2-4 (1967) (hereinafter Senate Report); H. R. Rep. No. 1711, 90th Cong., 2d Sess., 2-4 (1968) (hereinafter House Report). To remedy this gap in federal regulation, Senator Harrison Williams introduced a bill in October 1965 to subject tender offerors to advance disclosure requirements. The original proposal, S. 2732, evolved over the next two years in response to positions expressed by the SEC and other interested parties from private industry and the New York Stock Exchange. 113 Cong. Rec. 854 (1967) (remarks of Sen. Williams). As subsequently enacted, the legislation requires takeover bidders to file a statement with the Commission indicating, among other things, the background and identity of the offeror, the source and amount of funds or other consideration to be used in making the purchases, the extent of the offeror's holdings in the target corporation, and the offeror's plans with respect to the target corporation's business or corporate structure. 15 U. S. C. § 78m (d) (1). In addition to disclosure requirements, which protect all target shareholders, the Williams Act provides other benefits for target shareholders who elect to tender their stock. First, stockholders who accept the tender offer are given the right to withdraw their shares during the first seven days of the tender offer and at any time after 60 days from the commencement of the offer. § 78n (d) (5). Second, where the tender offer is for less than all outstanding shares and more than the requested number of shares are tendered, the Act requires that the tendered securities be taken up pro rata by the offeror during the first 10 days of the offer. § 78n (d) (6). [17] This provision, according to Senator Williams, was specifically designed to reduce pressures on target shareholders to deposit their shares hastily when the takeover bidder makes its tender offer on a first-come, first-served basis. 113 Cong. Rec. 856 (1967). Finally, the Act provides that if, during the course of the offer, the amount paid for the target shares is increased, all tendering shareholders are to receive the additional consideration, even if they tendered their stock before the price increase was announced. 15 U. S. C. § 78n (d) (7). See generally 1 A. Bromberg, Securities Law: Fraud § 6.3 (551), p. 120.2 (1975). Besides requiring disclosure and providing specific benefits for tendering shareholders, the Williams Act also contains a broad antifraud prohibition, which is the basis of Chris-Craft's claim. Section 14 (e) of the Securities Exchange Act, as added by § 3 of the Williams Act, 82 Stat. 457, 15 U. S. C. § 78n (e), provides: It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. This provision was expressly directed at the conduct of a broad range of persons, including those engaged in making or opposing tender offers or otherwise seeking to influence the decision of investors or the outcome of the tender offer. Senate Report 11. The threshold issue in these cases is whether tender offerors such as Chris-Craft, whose activities are regulated by the Williams Act, have a cause of action for damages against other regulated parties under the statute on a claim that antifraud violations by other parties have frustrated the bidder's efforts to obtain control of the target corporation. Without reading such a cause of action into the Act, none of the other issues need be reached.",The Williams Act
+409,103352,1,1,"The indictment was returned in December 1936 in the United States District Court for the Western District of Wisconsin. It charges that certain major oil companies, [4] selling gasoline in the Mid-Western area [5] (which includes the Western District of Wisconsin), (1) combined and conspired together for the purpose of artificially raising and fixing the tank car prices of gasoline in the spot markets in the East Texas [6] and Mid-Continent [7] fields; (2) have artificially raised and fixed said spot market tank car prices of gasoline and have maintained said prices at artificially high and non-competitive levels, and at levels agreed upon among them and have thereby intentionally increased and fixed the tank car prices of gasoline contracted to be sold and sold in interstate commerce as aforesaid in the Mid-Western area; (3) have arbitrarily, by reason of the provisions of the prevailing form of jobber contracts which made the price to the jobber dependent on the average spot market price, exacted large sums of money from thousands of jobbers with whom they have had such contracts in said Mid-Western area; and (4) in turn have intentionally raised the general level of retail prices prevailing in said Mid-Western area. The manner and means of effectuating such conspiracy are alleged in substance as follows: Defendants, from February 1935 to December 1936 have knowingly and unlawfully engaged and participated in two concerted gasoline buying programs for the purchase from independent refiners in spot transactions of large quantities of gasoline in the East Texas and Mid-Continent fields at uniform, high, and at times progressively increased prices. The East Texas buying program is alleged to have embraced purchases of gasoline in spot transactions from most of the independent refiners in the East Texas field, who were members of the East Texas Refiners' Marketing Association, formed in February 1935 with the knowledge and approval of some of the defendants for the purpose of selling and facilitating the sale of gasoline to defendant major oil companies. It is alleged that arrangements were made and carried out for allotting orders for gasoline received from defendants among the members of that association; and that such purchases amounted to more than 50% of all gasoline produced by those independent refiners. The Mid-Continent buying program is alleged to have included large and increased purchases of gasoline by defendants from independent refiners located in the Mid-Continent fields pursuant to allotments among themselves. Those purchases, it is charged, were made from independent refiners who were assigned to certain of the defendants at monthly meetings of a group representing defendants. It is alleged that the purchases in this buying program amounted to nearly 50% of all gasoline sold by those independents. As respects both the East Texas and the Mid-Continent buying programs, it is alleged that the purchases of gasoline were in excess of the amounts which defendants would have purchased but for those programs; that at the instance of certain defendants these independent refiners curtailed their production of gasoline. The independent refiners selling in these programs were named as co-conspirators, but not as defendants. Certain market journals — Chicago Journal of Commerce, Platt's Oilgram, National Petroleum News — were made defendants. [8] Their participation in the conspiracy is alleged as follows: that they have been the chief agencies and instrumentalities through which the wrongfully raised prices have affected the prices paid by jobbers, retail dealers, and consumers for gasoline in the Mid-Western area, that they knowingly published and circulated as such price quotations the wrongfully and artificially raised and fixed prices for gasoline paid by defendants in these buying programs, while representing the price quotations published by them to be gasoline prices prevailing in spot sales to jobbers in tank car lots and while knowing and intending them to be relied on as such by jobbers and to be made the basis of prices to jobbers. Jurisdiction and venue in the Western District of Wisconsin are alleged as follows: that most of defendant major oil companies have sold large quantities of gasoline in tank car lots to jobbers in that district at the artificially raised and fixed and non-competitive prices; that they have solicited and taken contracts and orders for gasoline in that district; and that they have required retail dealers and consumers therein to pay artificially increased prices for gasoline pursuant to the conspiracy. The methods of marketing and selling gasoline in the Mid-Western area are set forth in the indictment in some detail. Since we hereafter develop the facts concerning them, it will suffice at this point to summarize them briefly. Each defendant major oil company owns, operates or leases retail service stations in this area. It supplies those stations, as well as independent retail stations, with gasoline from its bulk storage plants. All but one sell large quantities of gasoline to jobbers in tank car lots under term contracts. In this area these jobbers exceed 4,000 in number and distribute about 50% of all gasoline distributed to retail service stations therein, the bulk of the jobbers' purchases being made from the defendant companies. The price to the jobbers under those contracts with defendant companies is made dependent on the spot market price, pursuant to a formula hereinafter discussed. And the spot market tank car prices of gasoline directly and substantially influence the retail prices in the area. In sum, it is alleged that defendants by raising and fixing the tank car prices of gasoline in these spot markets could and did increase the tank car prices and the retail prices of gasoline sold in the Mid-Western area. The vulnerability of these spot markets to that type of manipulation or stabilization is emphasized by the allegation that spot market prices published in the journals were the result of spot sales made chiefly by independent refiners of a relatively small amount of the gasoline sold in that area — virtually all gasoline sold in tank car quantities in spot market transactions in the Mid-Western area being sold by independent refiners, such sales amounting to less than 5% of all gasoline marketed therein. So much for the indictment.",The Indictment.
+410,103352,1,2,"Evidence was introduced (or respondents made offers of proof) showing or tending to show the following conditions preceding the commencement of the alleged conspiracy in February 1935. As we shall develop later, these facts were in the main relevant to certain defenses which respondents at the trial unsuccessfully sought to interpose to the indictment. Beginning about 1926 there commenced a period of production of crude oil in such quantities as seriously to affect crude oil and gasoline markets throughout the United States. Overproduction was wasteful, reduced the productive capacity of the oil fields and drove the price of oil down to levels below the cost of production from pumping and stripper [9] wells. When the price falls below such cost, those wells must be abandoned. Once abandoned, subsurface changes make it difficult or impossible to bring those wells back into production. Since such wells constitute about 40% of the country's known oil reserves, conservation requires that the price of crude oil be maintained at a level which will permit such wells to be operated. As Oklahoma and Kansas were attempting to remedy the situation through their proration laws, the largest oil field in history was discovered in East Texas. That was in 1930. The supply of oil from this field was so great that at one time crude oil sank to 10 or 15 cents a barrel, and gasoline was sold in the East Texas field for 2 1/8¢ a gallon. Enforcement by Texas of its proration law was extremely difficult. Orders restricting production were violated, the oil unlawfully produced being known as hot oil and the gasoline manufactured therefrom, hot gasoline. Hot oil sold for substantially lower prices than those posted for legal oil. Hot gasoline therefore cost less and at times could be sold for less than it cost to manufacture legal gasoline. The latter, deprived of its normal outlets, had to be sold at distress prices. The condition of many independent refiners using legal crude oil was precarious. In spite of their unprofitable operations they could not afford to shut down, for if they did so they would be apt to lose their oil connections in the field and their regular customers. Having little storage capacity they had to sell their gasoline as fast as they made it. As a result their gasoline became distress gasoline — gasoline which the refiner could not store, for which he had no regular sales outlets and which therefore he had to sell for whatever price it would bring. Such sales drove the market down. In the spring of 1933 conditions were acute. The wholesale market was below the cost of manufacture. As the market became flooded with cheap gasoline, gasoline was dumped at whatever price it would bring. On June 1, 1933, the price of crude oil was 25¢ a barrel; the tank car price of regular gasoline was 2 5/8¢ a gallon. In June 1933 Congress passed the National Industrial Recovery Act (48 Stat. 195). Sec. 9 (c) of that Act authorized the President to forbid the interstate and foreign shipment of petroleum and its products produced or withdrawn from storage in violation of state laws. By Executive Order the President on July 11, 1933, forbade such shipments. On August 19, 1933, a code of fair competition for the petroleum industry was approved. [10] The Secretary of the Interior was designated as Administrator of that Code. He established a Petroleum Administrative Board to advise with and make recommendations to him. A Planning and Coordination Committee was appointed, of which respondent Charles E. Arnott, a vice-president of Socony-Vacuum, was a member, to aid in the administration of the Code. In addressing that Committee in the fall of 1933 the Administrator said: Our task is to stabilize the oil industry upon a profitable basis. Considerable progress was made. The price of crude oil was a dollar a barrel near the end of September 1933, as a result of the voluntary action of the industry, [11] but, according to respondents, in accordance with the Administrator's policy and desire. In April 1934 an amendment to the Code was adopted under which an attempt was made to balance the supply of gasoline with the demand by allocating the amount of crude oil which each refiner could process with the view of creating a firmer condition in the market and thus increasing the price of gasoline. [12] This amendment also authorized the Planning and Coordination Committee, with the approval of the President, to make suitable arrangements for the purchase of gasoline from non-integrated or semi-integrated refiners and the resale of the same through orderly channels. Thereafter four buying programs were approved by the Administrator. [13] These permitted the major companies to purchase distress gasoline from the independent refiners. Standard forms of contract were provided. The evil aimed at was, in part at least, the production of hot oil and hot gasoline. The contracts (to at least one of which the Administrator was a party) were made pursuant to the provisions of the National Industrial Recovery Act and the Code and bound the purchasing company to buy fixed amounts of gasoline at designated prices [14] on condition that the seller should abide by the provisions of the Code. According to the 1935 Annual Report of the Secretary of the Interior, these buying programs were not successful as the production of gasoline from `hot oil' continued, stocks of gasoline mounted, wholesale prices for gasoline remained below parity with crude-oil prices, and in the early fall of 1934 the industry approached a serious collapse of the wholesale market. [15] Restoration of the price of gasoline to parity with crude oil at one dollar per barrel was not realized. The flow of hot oil out of East Texas continued. Refiners in the field could procure such oil for 35¢ or less a barrel and manufacture gasoline from it for 2 or 2 1/2¢ a gallon. This competition of the cheap hot gasoline drove the price of legal gasoline down below the cost of production. The problem of distress gasoline also persisted. The disparity between the price of gasoline and the cost of crude oil which had been at $1 per barrel since September 1933 caused losses to many independent refiners, no matter how efficient they were. In October 1934 the Administrator set up a Federal Tender Board and issued an order making it illegal to ship crude oil or gasoline out of East Texas in interstate or foreign commerce unless it were accompanied by a tender issued by that Board certifying that it had been legally produced or manufactured. Prices rose sharply. But the improvement was only temporary as the enforcement of § 9 (c) of the Act was enjoined in a number of suits. On January 7, 1935, this Court held § 9 (c) to be unconstitutional. Panama Refining Co. v. Ryan, 293 U.S. 388. Following that decision there was a renewed influx of hot gasoline into the Mid-Western area and the tank car market fell. Meanwhile the retail markets had been swept by a series of price wars. These price wars affected all markets — service station, tank wagon, and tank car. Early in 1934 the Petroleum Administrative Board tried to deal with them — by negotiating agreements between marketing companies and persuading individual companies to raise the price level for a period. On July 9, 1934, that Board asked respondent Arnott, chairman of the Planning and Coordination Committee's Marketing Committee, [16] if he would head up a voluntary, cooperative movement to deal with price wars. According to Arnott, he pointed out that in order to stabilize the retail market it was necessary to stabilize the tank car market through elimination of hot oil and distress gasoline. [17] On July 20, 1934, the Administrator wrote Arnott, described the disturbance caused by price wars and said: Under Article VII, Section 3 of the Code it is the duty of the Planning and Coordination Committee to cooperate with the Administration as a planning and fair practice agency for the industry. I am, therefore, requesting you, as Chairman of the Marketing Committee of the Planning and Coordination Committee, to take action which we deem necessary to restore markets to their normal conditions in areas where wasteful competition has caused them to become depressed. The number and extent of these situations would make it impractical for the Petroleum Administrative Board acting alone to deal with each specific situation. Therefore, I am requesting and authorizing you, as Chairman of the Marketing Committee, to designate committees for each locality when and as price wars develop, with authority to confer and to negotiate and to hold due public hearings with a view to ascertaining the elements of conflict that are present, and in a cooperative manner to stabilize the price level to conform to that normally prevailing in contiguous areas where marketing conditions are similar. Any activities of your Committee must, of course, be consistent with the requirements of Clause 2 of Sub-section (a) of Section III of the Act, . . . [18] After receiving that letter Arnott appointed a General Stabilization Committee with headquarters in Washington and a regional chairman in each region. Over fifty state and local committees were set up. The Petroleum Administrative Board worked closely with Arnott and the committees until the end of the Code near the middle of 1935. The effort (first local, then state-wide, and finally regional) was to eliminate price wars by negotiation and by persuading suppliers to see to it that those who bought from them sold at a fair price. In the first week of December 1934, Arnott held a meeting of the General Stabilization Committee in Chicago and a series of meetings on the next four or five days attended by hundreds of members of the industry from the middle west. These meetings were said to have been highly successful in elimination of many price wars. Arnott reported the results to members of the Petroleum Administrative Board on December 18, 1934, and stated that he was going to have a follow-up meeting in the near future. It was at that next meeting that the ground-work for the alleged conspiracy was laid.",Background of the Alleged Conspiracy.
+411,103352,1,3,"The alleged conspiracy is not to be found in any formal contract or agreement. It is to be pieced together from the testimony of many witnesses and the contents of over 1,000 exhibits, extending through the 3,900 printed pages of the record. What follows is based almost entirely on unequivocal testimony or undisputed contents of exhibits, only occasionally on the irresistible inferences from those facts.
+The next meeting of the General Stabilization Committee was held in Chicago on January 4, 1935, and was attended by all of the individual respondents, by representatives of the corporate respondents, and by others. Representatives of independent refiners, present at the meeting, complained of the failure of the price of refined gasoline to reach a parity with the crude oil price of $1 a barrel. And complaints by the independents of the depressing effect on the market of hot and distress gasoline were reported. Views were expressed to the effect that if we were going to have general stabilization in retail markets, we must have some sort of a firm market in the tank car market. As a result of the discussion Arnott appointed a Tank Car Stabilization Committee [19] to study the situation and make a report, or, to use the language of one of those present, to consider ways and means of establishing and maintaining an active and strong tank car market on gasoline. Three days after this committee was appointed, this Court decided Panama Refining Co. v. Ryan, supra . As we have said, there was evidence that following that decision there was a renewed influx of hot gasoline into the Mid-Western area with a consequent falling off of the tank car market prices. The first meeting of the Tank Car Committee was held February 5, 1935, and the second on February 11, 1935. At these meetings the alleged conspiracy was formed, the substance of which, so far as it pertained to the Mid-Continent phase, was as follows: It was estimated that there would be between 600 and 700 tank cars of distress gasoline produced in the Mid-Continent oil field every month by about 17 independent refiners. These refiners, not having regular outlets for the gasoline, would be unable to dispose of it except at distress prices. Accordingly, it was proposed and decided that certain major companies (including the corporate respondents) would purchase gasoline from these refiners. The Committee would assemble each month information as to the quantity and location of this distress gasoline. Each of the major companies was to select one (or more) of the independent refiners having distress gasoline as its dancing partner, [20] and would assume responsibility for purchasing its distress supply. In this manner buying power would be coordinated, purchases would be effectively placed, and the results would be much superior to the previous haphazard purchasing. There were to be no formal contractual commitments to purchase this gasoline, either between the major companies or between the majors and the independents. Rather it was an informal gentlemen's agreement or understanding whereby each undertook to perform his share of the joint undertaking. Purchases were to be made at the fair going market price. A Mechanical Sub-Committee [21] was appointed to find purchasers for any new distress gasoline which might appear between the monthly meetings of the Tank Car Stabilization Committee and to handle detailed problems arising during these periods. It was agreed that any such attempt to stabilize the tank car market was hopeless until the flow of hot gasoline was stopped. But it was expected that a bill pending before Congress to prohibit interstate shipment of hot gasoline would soon be enacted which would deal effectively with that problem. Accordingly, it was decided not to put any program into operation until this bill had been enacted and became operative. It was left to respondent Arnott to give the signal for putting the program into operation after this had occurred. The Connally Act (49 Stat. 30) became law on February 22, 1935. The enforcement agency under this Act was the Federal Tender Board which was appointed about March 1st. It issued its first tenders March 4th. On March 1st respondents Arnott and Ashton explained the buying program to a group of Mid-Continent independent refiners in Kansas City, who expressed a desire to cooperate and who appointed a committee to attend a meeting of the Tank Car Stabilization Committee in St. Louis on March 5th to learn more about the details. This meeting was held with the committee of the independents presents at one of the sessions. At a later session that day the final details of the Mid-Continent buying program were worked out, including an assignment of the dancing partners among the major companies. [22] On March 6th Ashton telephoned Arnott and told him what had been accomplished at the St. Louis meeting. Later the same day Arnott told Ashton by telephone that the program should be put into operation as soon as possible, since the Federal Tender Board seemed to be cleaning up the hot oil situation in East Texas. Ashton advised McDowell, chairman of the Mechanical Sub-Committee, of Arnott's instructions. And on March 7th that committee went into action. They divided up the major companies; each communicated with those on his list, advised them that the program was launched, and suggested that they get in touch with their respective dancing partners. Before the month was out all companies alleged to have participated in the program (except one or two) made purchases; 757 tank cars were bought from all but three of the independent refiners who were named in the indictment as sellers.
+No specific term for the buying program was decided upon, beyond the first month. But it was started with the hope of its continuance from month to month. And in fact it did go on for over a year, as we shall see. The concerted action under this program took the following form: The Tank Car Stabilization Committee had A.V. Bourque, Secretary of the Western Petroleum Refiners' Association, [23] make a monthly survey, showing the amount of distress gasoline which each independent refiner would have during the month. From March 1935 through February 1936 that Committee met once a month. At these meetings the surveys showing the amount and location of distress gasoline were presented and discussed. They usually revealed that from 600 to 800 tank cars of distress gasoline would become available during the month. Each member of the Committee present would indicate how much his company would buy and from whom. Those companies which were not represented at the meetings were approached by the Mechanical Sub-Committee; word was gotten to them as to the amount of gasoline that it was felt they could take in that month. Also, as we have stated, the Mechanical Sub-Committee would endeavor to find purchasers for any new distress gasoline which appeared between the meetings of the Tank Car Stabilization Committee. It would report such new surpluses to Bourque. The functions of the Mechanical Sub-Committee were apparently not restricted merely to dissemination of information to the buyers. One of its members testified that he urged the majors to buy more distress gasoline. Throughout, persuasion was apparently used to the end that all distress gasoline would be taken by the majors and so kept from the tank car markets. As the program progressed, most of the major companies continued to buy from the same dancing partners with whom they had started. One of the tasks of the Mechanical Sub-Committee was to keep itself informed as to the current prices of gasoline and to use its persuasion and influence to see to it that the majors paid a fair going market price and did not chisel on the small refiners. It did so. At its meetings during the spring of 1935 the question of the fair going market price was discussed. For example, Jacobi, a member of the Sub-Committee, testified that at the meeting of March 14, 1935, the subcommittee . . . arrived at what we thought was a fair market price for the week following, viz. 3 3/4¢ and 4 3/4 ¢. [24] Jacobi termed these prices arrived at by the Sub-Committee as the recommended prices. He made it a practice of recommending these prices to the major companies with which he communicated. According to his testimony, those recommendations were represented by him to be not the Sub-Committee's but his own idea. McDowell testified that he never made any such price recommendations but if asked would tell the purchasing companies what his own company was paying for gasoline. [25] Up to June 7, 1935, price recommendations were made five or seven times, each time the recommended prices constituting a price advance of 1/8 ¢ or 1/4¢ over the previous recommendation. No more price recommendations were made in 1935. In January 1936 there was an advance in the price of crude oil. The members of the Sub-Committee discussed the price situation and concluded that an advance of 1/2¢ a gallon of gasoline purchased under the program should be made. Jacobi made that recommendation to the companies on his list. We shall discuss later the effect of this buying program on the market. The major companies regularly reported to Bourque, the trade association representative of the Mid-Continent independent refiners, the volume of their purchases under the program and the prices paid. Representatives of one of the corporate respondents repeatedly characterized its purchases under the program as quotas, obligations, or allocations. They spoke of one of its dancing partners under the buying program as one of the babies placed in our lap last spring when this thing was inaugurated. And they stated that we don't have much choice as to whose material we are to take, when we purchase outside third grade gasoline in connection with the Buying Program Committee's operations. On such purchases, we have refineries `assigned' to us. This was doubtless laymen's, not lawyers', language. As we have said, there does not appear to have been any binding commitment to purchase; the plan was wholly voluntary; there is nothing in the record to indicate that a participant would be penalized for failure to cooperate. But though the arrangement was informal, it was nonetheless effective, as we shall see. And, as stated by the Circuit Court of Appeals, there did appear to be at least a moral obligation to purchase the amounts specified at the fair market prices recommended. That alone would seem to explain why some of the major companies cancelled or declined to enter into profitable deals for the exchange of gasoline with other companies in order to participate in this buying program. Respondent Skelly Oil Co. apparently lost at least some of its pipe-line transportation profit of 3/16¢ a gallon on every car of gasoline purchased by it in the buying program. And both that company and respondent Wadhams Oil Co. continued to make purchases of gasoline under the program although they were unable then to dispose of it. Up to June 1935, the expenses incurred by the members of the Mechanical Sub-Committee were charged to and paid by the Planning and Coordination Committee of the Code of Fair Competition for the Petroleum Industry. On May 27, 1935, this Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, that the code-making authority conferred by the National Industrial Recovery Act was an unconstitutional delegation of legislative power. Shortly thereafter the Tank Car Stabilization Committee held a meeting to discuss their future course of action. It was decided that the buying program should continue. Accordingly, that Committee continued to meet each month through February 1936. The procedure at these meetings was essentially the same as at the earlier ones. Gradually the buying program worked almost automatically, as contacts between buyer and seller became well established. The Mechanical Sub-Committee met at irregular intervals until December 1935. Thereafter it conducted its work on the telephone.
+In the meetings when the Mid-Continent buying program was being formulated it was recognized that it would be necessary or desirable to take the East Texas surplus gasoline off the market so that it would not be a disturbing influence in the Standard of Indiana territory. The reason was that weakness in East Texas spot market prices might make East Texas gasoline competitive with Mid-Continent gasoline in the Mid-Western area and thus affect Mid-Continent spot market prices. The tank car rate on gasoline shipments from the East Texas field to points in the Mid-Western area was about 1/8¢ a gallon higher than from the Mid-Continent field. With East Texas spot market prices more than 1/8¢ a gallon below Mid-Continent spot market prices, there might well be a resulting depressing effect on the Mid-Continent spot market prices. [26] Early in 1935 the East Texas Refiners' Marketing Association was formed to dispose of the surplus gasoline manufactured by the East Texas refiners. The occasion for the formation of this Association was the stoppage of the shipment of hot oil and gasoline as a consequence of a Texas law enacted in December 1934. As long as these refiners had operated on cheap hot oil they had been able to compete for business throughout the Middle West. If they used legal crude at a dollar a barrel, their costs would increase. Their shift from a hot oil to a legal oil basis necessitated a change in their marketing methods. They were already supplying jobbers and dealers of Texas with all the gasoline they could use. Hence, their problem was to find additional markets for the surplus gasoline which they manufactured from legal crude. The Association was to act as the sales agency for those surpluses. Shipments north would be against the freight differential. Therefore, without regular outlets for this surplus gasoline they would have been forced to dump it on the market at distress prices. Their plan was to persuade the major companies if possible to buy more East Texas gasoline and to purchase it through the Association which would allocate it among its members who had surpluses. Neil Buckley, a buyer for Cities Service Export Corporation in Tulsa, was recommended by one of the independents as the contact man. Buckley undertook the job. [27] Thus it was not established that the major companies caused the Association to be formed. But it is clear that the services of the Association were utilized in connection with a buying program by defendant companies. The record is quite voluminous on the activities of Buckley in getting the support of the majors to the Association's program. Suffice it to say that he encountered many difficulties, most of them due to the suspicion and mistrust of the majors as a result of the earlier hot oil record of the East Texas independents. His initial task was to convince the majors of the good faith of the East Texas independents. Many conferences were had. Arnott gave help to Buckley. Thus, on March 1, 1935, Arnott wired a small group of representatives of major companies, who were buyers and users of East Texas gasoline, inviting them to attend a meeting in New York City on March 6th to hear outcome my meeting with East Texas refiners and to consider future action surplus gasoline this and other groups that is awaiting our decision . . . matter of extreme importance. The problem was discussed at that meeting [28] but reliable information was lacking as to the probable amount of distress gasoline, the size of the independents' federal allocations and whether or not such gasoline was going to be manufactured within those allocations. Accordingly Arnott appointed a committee to attend the meeting of the District Allocators [29] on March 13th and to obtain the information. That information was obtained and a schedule was prepared showing the probable amount of surplus gasoline in East Texas and the Gulf, the names of the regular buyers in those areas, and the amounts they might take. Arnott, on March 14th, by telegraph called another meeting in New York City for the next day, saying The question of surplus gasoline which has been under consideration must be finalized tomorrow. At that meeting someone (apparently a representative of respondent Sinclair) arose with a slip of paper in his hand and stated that it had been suggested that each of 12 to 15 major companies take so much gasoline from East Texas, the amounts being read off as to what each company would take. Nothing definite was decided at the meeting. Buckley continued his efforts, talking with Arnott and representatives of other majors. It is impossible to find from the record the exact point of crystallization of a buying program. But it is clear that as a result of Buckley's and Arnott's efforts and of the discussions at the various meetings various major companies did come into line and that a concerted buying program was launched. The correspondence of employees of some of the majors throughout the period in question is replete with references such as the following: buying program in East Texas; our allocation of five cars per day; a general buying movement; regular weekly purchases from the East Texas group; allocations and purchases in the East Texas field; and the like. In 1935 the East Texas refiners named in the indictment sold 285,592,188 gallons of gasoline. Of this certain defendant companies [30] bought 40,195,754 gallons or 14.07%. In the same year all independent refiners in East Texas sold 378,920,346 gallons — practically all of it on the spot market. Of this amount those defendant companies purchased 12.03% or 45,598,453 gallons. Of the 8,797 tank cars purchased by all defendants (except Sinclair) from March 1935 through April 1936 from independent refiners in the East Texas field, 2,412 tank cars were purchased by the present corporate respondents. Every Monday morning the secretary of the East Texas association ascertained from each member the amount of his forthcoming weekly surplus gasoline and the price he wanted. He used the consensus of opinion as the asking price. He would call the major companies; they would call him. He exchanged market information with them. Orders received for less than the asking price would not be handled by the Association; rather the secretary would refer the buyer to one of the independents who might sell at the lower price. Very few cars were purchased through the Association by others than the major oil companies. [31] The majors bought about 7,000 tank cars through the Association in 1935 and about 2,700 tank cars in the first four months of 1936. And in 1935 the secretary of the Association placed an additional 1,000 tank cars by bringing the purchasers and the independent refiners together. The purchases in 1935 in East Texas were, with minor exceptions, either at the low or slightly below the low quotation in Platt's Oilgram, following it closely as the market rose in March, April, and May, 1935; they conformed to the market as it flattened out into more or less of a plateau through the balance of 1935 with a low for third grade gasoline of 4 5/8¢. This was consistent with the policy of the buying program. For the majors were requested to purchase at the fair, going market price. [32] And it is clear that this East Texas buying program was, as we have said, supplementary or auxiliary to the Mid-Continent program. As stated in March 1935 in an inter-company memorandum of one of the majors: . . . with east coast refiners having a program to purchase surplus East Texas gasoline over the next four months, we feel that still further advances can be made in the tank car market and a resultant increase in the service station price.
+As a result of these buying programs it was hoped and intended that both the tank car and the retail markets would improve. The conclusion is irresistible that defendants' purpose was not merely to raise the spot market prices but, as the real and ultimate end, to raise the price of gasoline in their sales to jobbers and consumers in the Mid-Western area. Their agreement or plan embraced not only buying on the spot markets but also, at least by clear implication, an understanding to maintain such improvements in Mid-Western prices as would result from those purchases of distress gasoline. The latter obviously would be achieved by selling at the increased prices, not by price cutting. Any other understanding would have been wholly inconsistent with and contrary to the philosophy of the broad stabilization efforts which were under way. In essence the raising and maintenance of the spot market prices were but the means adopted for raising and maintaining prices to jobbers and consumers. The broad sweep of the agreement was indicated by Arnott before a group of the industry on March 13, 1935. He described the plan as one whereby this whole stabilization effort of markets, the holding up of normal sales market structures, the question of the realization of refineries, the working together of those two great groups in order that we may balance this whole picture and in order that we may interest a great many buyers in this so-called surplus or homeless gasoline, can be done along organized lines. . . . Certainly there was enough evidence to support a finding by the jury that such were the scope and purpose of the plan. But there was no substantial competent evidence that defendants, as charged in the indictment, induced the independent refiners to curtail their production.
+Before discussing the effect of these buying programs, some description of the methods of marketing and distributing gasoline in the Mid-Western area during the indictment period is necessary. The defendant companies sold about 83% of all gasoline sold in the Mid-Western area during 1935. As we have noted, major companies, such as most of the defendants, are those whose operations are fully integrated — producing crude oil, having pipe lines for shipment of the crude to its refineries, refining crude oil, and marketing gasoline at retail and at wholesale. During the greater part of the indictment period the defendant companies owned and operated many retail service stations [33] through which they sold about 20% of their Mid-Western gasoline in 1935 and about 12% during the first seven months of 1936. Standard Oil Company (Indiana) [34] was known during this period as the price leader or market leader throughout the Mid-Western area. It was customary for retail distributors, whether independent or owned or controlled by major companies, to follow Standard's posted retail prices. Its posted retail price in any given place in the Mid-Western area was determined by computing the Mid-Continent spot market price and adding thereto the tank car freight rate from the Mid-Continent field, taxes and 5 1/2¢. The 5 1/2¢ was the equivalent of the customary 2¢ jobber margin and 3 1/2¢ service station margin. In this manner the retail price structure throughout the Mid-Western area during the indictment period was based in the main on Mid-Continent spot market quotations, [35] or, as stated by one of the witnesses for the defendants, the spot market was a peg to hang the price structure on. About 24% of defendant companies' sales in the Mid-Western area in 1935 were to jobbers, who perform the function of middlemen or wholesalers. Since 1925 jobbers were purchasing less of their gasoline on the spot tank car markets and more under long term supply contracts from major companies and independent refiners. These contracts usually ran for a year or more and covered all of the jobber's gasoline requirements during the period. The price which the jobber was to pay over the life of the contract was not fixed; but a formula for its computation was included. About 80% or more of defendant companies' jobber contracts provided that the price of gasoline sold thereunder should be the Mid-Continent spot market price on the date of shipment. This spot market price was to be determined by averaging the high and low spot market quotations reported in the Chicago Journal of Commerce and Platt's Oilgram or by averaging the high and low quotations reported in the Journal alone. The contracts also gave the jobber a wholly or partially guaranteed margin between the price he had to pay for the gasoline and the normal price to service stations — customarily a 2¢ margin. [36] There is no central exchange or market place for spot market transactions. Each sale is the result of individual bargaining between a refiner and his customers, sales under long-term contracts not being included. It is a spot market because shipment is to be made in the immediate future — usually within ten or fifteen days. Sales on the spot tank car markets are either sales to jobbers or consumers, sales by one refiner to another not being included. [37] The prices paid by jobbers and consumers in the various spot markets are published daily in the trade journals, Platt's Oilgram and Chicago Journal of Commerce. In the case of the Oilgram these prices are obtained by a market checker who daily calls refiners in the various refinery areas (major companies as well as independents) and ascertains the quantity and price of gasoline which they have sold to jobbers in spot sales. [38] After checking the prices so obtained against other sources of information (such as brokers' sales) and after considering the volume of sales reported at each price, he determines the lowest and highest prices at which gasoline is being sold to jobbers in substantial quantities on the spot market. [39] Thus, if he finds that substantial sales are reported at 5 1/8¢, 5 1/4¢ and 5 3/8¢, the Oilgram reports a price range of 5 1/8-5 3/8¢. The result is published in the Oilgram that same day. [40] The Chicago Journal of Commerce publishes similar quotations the day after the sales are reported. And its quotations cover sales to industrial consumers as well as to jobbers. But it was not shown that either journal had published prices paid by a major company as a price paid by jobbers on the tank car market.
+In 1935 the 14 independent Mid-Continent refiners named in the indictment sold 377,988,736 gallons of gasoline. Of that output, the corporate respondents purchased about 56,200,000 gallons or approximately 15% [41] and the defendant companies who went to trial, about 17%. The monthly purchases of all defendant companies from Mid-Continent independents from March 1935 to April 1936 usually ranged between 600 and 900 tank cars and in a few months somewhat exceeded those amounts. Major company buying began under the Mid-Continent program on March 7, 1935. During the week before that buying commenced the Mid-Continent spot market for third grade gasoline rose 3/8¢. The low quotation on third grade gasoline was 3 1/2¢ on March 6, 1935. It rose to 4 3/4¢ early in June. That advance was evidenced by ten successive steps. The market on third grade gasoline then levelled out on a plateau which extended into January 1936, except for a temporary decline in the low quotation late in 1935. By the middle of January the low again had risen, this time to 5 1/4¢. It held substantially at that point until the middle of February 1936. By the end of February it had dropped to 5¢. It then levelled off at that low and remained there into May 1936 when the low dropped first to 4 7/8¢ and then to 4 3/4¢. It stayed there until the first week in July 1936. The low then rose to 4 7/8¢, maintained that level until mid-August, then started to drop until by successive steps it had declined to 4 1/2¢ before the middle of September. It stayed there until early October when it rose to 4 5/8¢, continuing at that level until middle November when it rose to 4 3/4¢. The low remained at substantially that point throughout the balance of 1936. During 1935, as the Mid-Continent spot market for third grade gasoline was rising, so was the East Texas spot market. And when in June 1935 the former levelled off for the balance of the year at a low of 4 3/4¢, the latter [42] levelled off, as we have seen, at a low of 4 5/8¢. During this period there were comparable movements on the Mid-Continent spot market for regular gasoline. From a low of 4 3/8¢ on March 7, 1935, it rose to a low of 5 5/8¢ early in June, that advance being evidenced by nine successive steps. As in the case of third grade gasoline, the market for regular gasoline then levelled out on a plateau which extended into January 1936. By the middle of January the low had risen to 6 1/8 ¢. It held at that point until the middle of February 1936. By the end of February it had dropped to 5 7/8¢. It rose to 6¢ in the first week of March, levelled off at that low and remained there into August 1936. By mid-August it started to drop — reaching 5 1/2¢ in September, going to 5 5/8¢ in October and to 5 3/4¢ in November, where it stayed through the balance of 1936. These plateaus are clearly shown by a chart of the market journals' quotations. But that does not of course mean that all sales on the spot market were made between the high and the low during the period in question. As we have said, the quotations of the market journals merely indicated the range of prices (usually an eighth) within which the bulk of the gasoline was being sold. Hence actual sales took place above the high and below the low. Thus between June and December 1935 while the low for third grade gasoline remained substantially at 4 3/4¢ and the high at 4 7/8¢ jobbers' and consumers' purchases [43] ranged from 4 3/8¢ to 5 1/8¢. A similar condition existed as respects regular gasoline. Purchases by the major companies likewise did not always fall within the range of these quotations. In fact, between 85 and 90% of their purchases from the independent refiners were made at prices which were at or below the low quotations in the market journals. [44] There were few such purchases above the high and not a substantial percentage at the high. [45]
+That the spot market prices controlled prices of gasoline sold by the majors to the jobbers in the Mid-Western area during the indictment period is beyond question. For, as we have seen, the vast majority of jobbers' supply contracts during that period contained price formulae which were directly dependent on the Mid-Continent spot market prices. [46] Hence, as the latter rose, the prices to the jobbers under those contracts increased. There was also ample evidence that the spot market prices substantially affected the retail prices in the Mid-Western area during the indictment period. As we have seen, Standard of Indiana was known during this period as the price or market leader throughout this area. It was customary for the retailers to follow Standard's posted retail prices, which had as their original base the Mid-Continent spot market price. Standard's policy was to make changes in its posted retail price only when the spot market base went up or down at least 3/10¢ a gallon and maintained that change for a period of 7 days or more. [47] Standard's net reduction in posted prices for the 6 months preceding March 1935 was 1.9¢ per gallon. From March 1935 to June 1935 its posted retail prices were advanced 3/10¢ four times. Retail prices in the Mid-Western area kept close step with Mid-Continent spot market prices during 1935 and 1936, though there was a short lag between advances in the spot market prices and the consequent rises in retail prices. [48] This was true in general both of the subnormal [49] and normal retail prices. To be sure, when the tank car spot market levelled out on a plateau from June to the end of 1935, there was not quite the same evenness in the higher plateau of the average retail prices. For there were during the period in question large numbers of retail price cuts in various parts of the Mid-Western area, though they diminished substantially during the spring and summer of 1935. Yet the average service station price [50] (less tax) having reached 13.26¢ by the middle of April (from 12.56¢ near the first of March) never once fell below that amount; advanced regularly to 13.83¢ by the middle of June; declined to 13.44¢ in August; and after an increase to 13.41¢ during the last of the summer remained at 13.41¢ during the balance of 1935 except for a minor intermediate drop. In sum, the contours of the retail prices conformed in general to those of the tank car spot markets. The movements of the two were not just somewhat comparable; they were strikingly similar. Irrespective of whether the tank car spot market prices controlled the retail prices in this area, there was substantial competent evidence that they influenced them — substantially and effectively. And in this connection it will be recalled that when the buying program was formulated it was in part predicated on the proposition that a firm tank car market was necessary for a stabilization of the retail markets. As reported by one who attended the meeting on February 5, 1935, where the buying program was being discussed: It was generally assumed that all companies would come into the picture since a stable retail market requires a higher tank car market.",The Alleged Conspiracy.
+412,103352,2,1,"The next meeting of the General Stabilization Committee was held in Chicago on January 4, 1935, and was attended by all of the individual respondents, by representatives of the corporate respondents, and by others. Representatives of independent refiners, present at the meeting, complained of the failure of the price of refined gasoline to reach a parity with the crude oil price of $1 a barrel. And complaints by the independents of the depressing effect on the market of hot and distress gasoline were reported. Views were expressed to the effect that if we were going to have general stabilization in retail markets, we must have some sort of a firm market in the tank car market. As a result of the discussion Arnott appointed a Tank Car Stabilization Committee [19] to study the situation and make a report, or, to use the language of one of those present, to consider ways and means of establishing and maintaining an active and strong tank car market on gasoline. Three days after this committee was appointed, this Court decided Panama Refining Co. v. Ryan, supra . As we have said, there was evidence that following that decision there was a renewed influx of hot gasoline into the Mid-Western area with a consequent falling off of the tank car market prices. The first meeting of the Tank Car Committee was held February 5, 1935, and the second on February 11, 1935. At these meetings the alleged conspiracy was formed, the substance of which, so far as it pertained to the Mid-Continent phase, was as follows: It was estimated that there would be between 600 and 700 tank cars of distress gasoline produced in the Mid-Continent oil field every month by about 17 independent refiners. These refiners, not having regular outlets for the gasoline, would be unable to dispose of it except at distress prices. Accordingly, it was proposed and decided that certain major companies (including the corporate respondents) would purchase gasoline from these refiners. The Committee would assemble each month information as to the quantity and location of this distress gasoline. Each of the major companies was to select one (or more) of the independent refiners having distress gasoline as its dancing partner, [20] and would assume responsibility for purchasing its distress supply. In this manner buying power would be coordinated, purchases would be effectively placed, and the results would be much superior to the previous haphazard purchasing. There were to be no formal contractual commitments to purchase this gasoline, either between the major companies or between the majors and the independents. Rather it was an informal gentlemen's agreement or understanding whereby each undertook to perform his share of the joint undertaking. Purchases were to be made at the fair going market price. A Mechanical Sub-Committee [21] was appointed to find purchasers for any new distress gasoline which might appear between the monthly meetings of the Tank Car Stabilization Committee and to handle detailed problems arising during these periods. It was agreed that any such attempt to stabilize the tank car market was hopeless until the flow of hot gasoline was stopped. But it was expected that a bill pending before Congress to prohibit interstate shipment of hot gasoline would soon be enacted which would deal effectively with that problem. Accordingly, it was decided not to put any program into operation until this bill had been enacted and became operative. It was left to respondent Arnott to give the signal for putting the program into operation after this had occurred. The Connally Act (49 Stat. 30) became law on February 22, 1935. The enforcement agency under this Act was the Federal Tender Board which was appointed about March 1st. It issued its first tenders March 4th. On March 1st respondents Arnott and Ashton explained the buying program to a group of Mid-Continent independent refiners in Kansas City, who expressed a desire to cooperate and who appointed a committee to attend a meeting of the Tank Car Stabilization Committee in St. Louis on March 5th to learn more about the details. This meeting was held with the committee of the independents presents at one of the sessions. At a later session that day the final details of the Mid-Continent buying program were worked out, including an assignment of the dancing partners among the major companies. [22] On March 6th Ashton telephoned Arnott and told him what had been accomplished at the St. Louis meeting. Later the same day Arnott told Ashton by telephone that the program should be put into operation as soon as possible, since the Federal Tender Board seemed to be cleaning up the hot oil situation in East Texas. Ashton advised McDowell, chairman of the Mechanical Sub-Committee, of Arnott's instructions. And on March 7th that committee went into action. They divided up the major companies; each communicated with those on his list, advised them that the program was launched, and suggested that they get in touch with their respective dancing partners. Before the month was out all companies alleged to have participated in the program (except one or two) made purchases; 757 tank cars were bought from all but three of the independent refiners who were named in the indictment as sellers.",formation of the mid-continent buying program.
+413,103352,2,2,"No specific term for the buying program was decided upon, beyond the first month. But it was started with the hope of its continuance from month to month. And in fact it did go on for over a year, as we shall see. The concerted action under this program took the following form: The Tank Car Stabilization Committee had A.V. Bourque, Secretary of the Western Petroleum Refiners' Association, [23] make a monthly survey, showing the amount of distress gasoline which each independent refiner would have during the month. From March 1935 through February 1936 that Committee met once a month. At these meetings the surveys showing the amount and location of distress gasoline were presented and discussed. They usually revealed that from 600 to 800 tank cars of distress gasoline would become available during the month. Each member of the Committee present would indicate how much his company would buy and from whom. Those companies which were not represented at the meetings were approached by the Mechanical Sub-Committee; word was gotten to them as to the amount of gasoline that it was felt they could take in that month. Also, as we have stated, the Mechanical Sub-Committee would endeavor to find purchasers for any new distress gasoline which appeared between the meetings of the Tank Car Stabilization Committee. It would report such new surpluses to Bourque. The functions of the Mechanical Sub-Committee were apparently not restricted merely to dissemination of information to the buyers. One of its members testified that he urged the majors to buy more distress gasoline. Throughout, persuasion was apparently used to the end that all distress gasoline would be taken by the majors and so kept from the tank car markets. As the program progressed, most of the major companies continued to buy from the same dancing partners with whom they had started. One of the tasks of the Mechanical Sub-Committee was to keep itself informed as to the current prices of gasoline and to use its persuasion and influence to see to it that the majors paid a fair going market price and did not chisel on the small refiners. It did so. At its meetings during the spring of 1935 the question of the fair going market price was discussed. For example, Jacobi, a member of the Sub-Committee, testified that at the meeting of March 14, 1935, the subcommittee . . . arrived at what we thought was a fair market price for the week following, viz. 3 3/4¢ and 4 3/4 ¢. [24] Jacobi termed these prices arrived at by the Sub-Committee as the recommended prices. He made it a practice of recommending these prices to the major companies with which he communicated. According to his testimony, those recommendations were represented by him to be not the Sub-Committee's but his own idea. McDowell testified that he never made any such price recommendations but if asked would tell the purchasing companies what his own company was paying for gasoline. [25] Up to June 7, 1935, price recommendations were made five or seven times, each time the recommended prices constituting a price advance of 1/8 ¢ or 1/4¢ over the previous recommendation. No more price recommendations were made in 1935. In January 1936 there was an advance in the price of crude oil. The members of the Sub-Committee discussed the price situation and concluded that an advance of 1/2¢ a gallon of gasoline purchased under the program should be made. Jacobi made that recommendation to the companies on his list. We shall discuss later the effect of this buying program on the market. The major companies regularly reported to Bourque, the trade association representative of the Mid-Continent independent refiners, the volume of their purchases under the program and the prices paid. Representatives of one of the corporate respondents repeatedly characterized its purchases under the program as quotas, obligations, or allocations. They spoke of one of its dancing partners under the buying program as one of the babies placed in our lap last spring when this thing was inaugurated. And they stated that we don't have much choice as to whose material we are to take, when we purchase outside third grade gasoline in connection with the Buying Program Committee's operations. On such purchases, we have refineries `assigned' to us. This was doubtless laymen's, not lawyers', language. As we have said, there does not appear to have been any binding commitment to purchase; the plan was wholly voluntary; there is nothing in the record to indicate that a participant would be penalized for failure to cooperate. But though the arrangement was informal, it was nonetheless effective, as we shall see. And, as stated by the Circuit Court of Appeals, there did appear to be at least a moral obligation to purchase the amounts specified at the fair market prices recommended. That alone would seem to explain why some of the major companies cancelled or declined to enter into profitable deals for the exchange of gasoline with other companies in order to participate in this buying program. Respondent Skelly Oil Co. apparently lost at least some of its pipe-line transportation profit of 3/16¢ a gallon on every car of gasoline purchased by it in the buying program. And both that company and respondent Wadhams Oil Co. continued to make purchases of gasoline under the program although they were unable then to dispose of it. Up to June 1935, the expenses incurred by the members of the Mechanical Sub-Committee were charged to and paid by the Planning and Coordination Committee of the Code of Fair Competition for the Petroleum Industry. On May 27, 1935, this Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, that the code-making authority conferred by the National Industrial Recovery Act was an unconstitutional delegation of legislative power. Shortly thereafter the Tank Car Stabilization Committee held a meeting to discuss their future course of action. It was decided that the buying program should continue. Accordingly, that Committee continued to meet each month through February 1936. The procedure at these meetings was essentially the same as at the earlier ones. Gradually the buying program worked almost automatically, as contacts between buyer and seller became well established. The Mechanical Sub-Committee met at irregular intervals until December 1935. Thereafter it conducted its work on the telephone.",the mid-continent buying program in operation.
+414,103352,2,3,"In the meetings when the Mid-Continent buying program was being formulated it was recognized that it would be necessary or desirable to take the East Texas surplus gasoline off the market so that it would not be a disturbing influence in the Standard of Indiana territory. The reason was that weakness in East Texas spot market prices might make East Texas gasoline competitive with Mid-Continent gasoline in the Mid-Western area and thus affect Mid-Continent spot market prices. The tank car rate on gasoline shipments from the East Texas field to points in the Mid-Western area was about 1/8¢ a gallon higher than from the Mid-Continent field. With East Texas spot market prices more than 1/8¢ a gallon below Mid-Continent spot market prices, there might well be a resulting depressing effect on the Mid-Continent spot market prices. [26] Early in 1935 the East Texas Refiners' Marketing Association was formed to dispose of the surplus gasoline manufactured by the East Texas refiners. The occasion for the formation of this Association was the stoppage of the shipment of hot oil and gasoline as a consequence of a Texas law enacted in December 1934. As long as these refiners had operated on cheap hot oil they had been able to compete for business throughout the Middle West. If they used legal crude at a dollar a barrel, their costs would increase. Their shift from a hot oil to a legal oil basis necessitated a change in their marketing methods. They were already supplying jobbers and dealers of Texas with all the gasoline they could use. Hence, their problem was to find additional markets for the surplus gasoline which they manufactured from legal crude. The Association was to act as the sales agency for those surpluses. Shipments north would be against the freight differential. Therefore, without regular outlets for this surplus gasoline they would have been forced to dump it on the market at distress prices. Their plan was to persuade the major companies if possible to buy more East Texas gasoline and to purchase it through the Association which would allocate it among its members who had surpluses. Neil Buckley, a buyer for Cities Service Export Corporation in Tulsa, was recommended by one of the independents as the contact man. Buckley undertook the job. [27] Thus it was not established that the major companies caused the Association to be formed. But it is clear that the services of the Association were utilized in connection with a buying program by defendant companies. The record is quite voluminous on the activities of Buckley in getting the support of the majors to the Association's program. Suffice it to say that he encountered many difficulties, most of them due to the suspicion and mistrust of the majors as a result of the earlier hot oil record of the East Texas independents. His initial task was to convince the majors of the good faith of the East Texas independents. Many conferences were had. Arnott gave help to Buckley. Thus, on March 1, 1935, Arnott wired a small group of representatives of major companies, who were buyers and users of East Texas gasoline, inviting them to attend a meeting in New York City on March 6th to hear outcome my meeting with East Texas refiners and to consider future action surplus gasoline this and other groups that is awaiting our decision . . . matter of extreme importance. The problem was discussed at that meeting [28] but reliable information was lacking as to the probable amount of distress gasoline, the size of the independents' federal allocations and whether or not such gasoline was going to be manufactured within those allocations. Accordingly Arnott appointed a committee to attend the meeting of the District Allocators [29] on March 13th and to obtain the information. That information was obtained and a schedule was prepared showing the probable amount of surplus gasoline in East Texas and the Gulf, the names of the regular buyers in those areas, and the amounts they might take. Arnott, on March 14th, by telegraph called another meeting in New York City for the next day, saying The question of surplus gasoline which has been under consideration must be finalized tomorrow. At that meeting someone (apparently a representative of respondent Sinclair) arose with a slip of paper in his hand and stated that it had been suggested that each of 12 to 15 major companies take so much gasoline from East Texas, the amounts being read off as to what each company would take. Nothing definite was decided at the meeting. Buckley continued his efforts, talking with Arnott and representatives of other majors. It is impossible to find from the record the exact point of crystallization of a buying program. But it is clear that as a result of Buckley's and Arnott's efforts and of the discussions at the various meetings various major companies did come into line and that a concerted buying program was launched. The correspondence of employees of some of the majors throughout the period in question is replete with references such as the following: buying program in East Texas; our allocation of five cars per day; a general buying movement; regular weekly purchases from the East Texas group; allocations and purchases in the East Texas field; and the like. In 1935 the East Texas refiners named in the indictment sold 285,592,188 gallons of gasoline. Of this certain defendant companies [30] bought 40,195,754 gallons or 14.07%. In the same year all independent refiners in East Texas sold 378,920,346 gallons — practically all of it on the spot market. Of this amount those defendant companies purchased 12.03% or 45,598,453 gallons. Of the 8,797 tank cars purchased by all defendants (except Sinclair) from March 1935 through April 1936 from independent refiners in the East Texas field, 2,412 tank cars were purchased by the present corporate respondents. Every Monday morning the secretary of the East Texas association ascertained from each member the amount of his forthcoming weekly surplus gasoline and the price he wanted. He used the consensus of opinion as the asking price. He would call the major companies; they would call him. He exchanged market information with them. Orders received for less than the asking price would not be handled by the Association; rather the secretary would refer the buyer to one of the independents who might sell at the lower price. Very few cars were purchased through the Association by others than the major oil companies. [31] The majors bought about 7,000 tank cars through the Association in 1935 and about 2,700 tank cars in the first four months of 1936. And in 1935 the secretary of the Association placed an additional 1,000 tank cars by bringing the purchasers and the independent refiners together. The purchases in 1935 in East Texas were, with minor exceptions, either at the low or slightly below the low quotation in Platt's Oilgram, following it closely as the market rose in March, April, and May, 1935; they conformed to the market as it flattened out into more or less of a plateau through the balance of 1935 with a low for third grade gasoline of 4 5/8¢. This was consistent with the policy of the buying program. For the majors were requested to purchase at the fair, going market price. [32] And it is clear that this East Texas buying program was, as we have said, supplementary or auxiliary to the Mid-Continent program. As stated in March 1935 in an inter-company memorandum of one of the majors: . . . with east coast refiners having a program to purchase surplus East Texas gasoline over the next four months, we feel that still further advances can be made in the tank car market and a resultant increase in the service station price.",formation and nature of the east texas buying program.
+415,103352,2,4,"As a result of these buying programs it was hoped and intended that both the tank car and the retail markets would improve. The conclusion is irresistible that defendants' purpose was not merely to raise the spot market prices but, as the real and ultimate end, to raise the price of gasoline in their sales to jobbers and consumers in the Mid-Western area. Their agreement or plan embraced not only buying on the spot markets but also, at least by clear implication, an understanding to maintain such improvements in Mid-Western prices as would result from those purchases of distress gasoline. The latter obviously would be achieved by selling at the increased prices, not by price cutting. Any other understanding would have been wholly inconsistent with and contrary to the philosophy of the broad stabilization efforts which were under way. In essence the raising and maintenance of the spot market prices were but the means adopted for raising and maintaining prices to jobbers and consumers. The broad sweep of the agreement was indicated by Arnott before a group of the industry on March 13, 1935. He described the plan as one whereby this whole stabilization effort of markets, the holding up of normal sales market structures, the question of the realization of refineries, the working together of those two great groups in order that we may balance this whole picture and in order that we may interest a great many buyers in this so-called surplus or homeless gasoline, can be done along organized lines. . . . Certainly there was enough evidence to support a finding by the jury that such were the scope and purpose of the plan. But there was no substantial competent evidence that defendants, as charged in the indictment, induced the independent refiners to curtail their production.",scope and purpose of the alleged conspiracy.
+416,103352,2,5,"Before discussing the effect of these buying programs, some description of the methods of marketing and distributing gasoline in the Mid-Western area during the indictment period is necessary. The defendant companies sold about 83% of all gasoline sold in the Mid-Western area during 1935. As we have noted, major companies, such as most of the defendants, are those whose operations are fully integrated — producing crude oil, having pipe lines for shipment of the crude to its refineries, refining crude oil, and marketing gasoline at retail and at wholesale. During the greater part of the indictment period the defendant companies owned and operated many retail service stations [33] through which they sold about 20% of their Mid-Western gasoline in 1935 and about 12% during the first seven months of 1936. Standard Oil Company (Indiana) [34] was known during this period as the price leader or market leader throughout the Mid-Western area. It was customary for retail distributors, whether independent or owned or controlled by major companies, to follow Standard's posted retail prices. Its posted retail price in any given place in the Mid-Western area was determined by computing the Mid-Continent spot market price and adding thereto the tank car freight rate from the Mid-Continent field, taxes and 5 1/2¢. The 5 1/2¢ was the equivalent of the customary 2¢ jobber margin and 3 1/2¢ service station margin. In this manner the retail price structure throughout the Mid-Western area during the indictment period was based in the main on Mid-Continent spot market quotations, [35] or, as stated by one of the witnesses for the defendants, the spot market was a peg to hang the price structure on. About 24% of defendant companies' sales in the Mid-Western area in 1935 were to jobbers, who perform the function of middlemen or wholesalers. Since 1925 jobbers were purchasing less of their gasoline on the spot tank car markets and more under long term supply contracts from major companies and independent refiners. These contracts usually ran for a year or more and covered all of the jobber's gasoline requirements during the period. The price which the jobber was to pay over the life of the contract was not fixed; but a formula for its computation was included. About 80% or more of defendant companies' jobber contracts provided that the price of gasoline sold thereunder should be the Mid-Continent spot market price on the date of shipment. This spot market price was to be determined by averaging the high and low spot market quotations reported in the Chicago Journal of Commerce and Platt's Oilgram or by averaging the high and low quotations reported in the Journal alone. The contracts also gave the jobber a wholly or partially guaranteed margin between the price he had to pay for the gasoline and the normal price to service stations — customarily a 2¢ margin. [36] There is no central exchange or market place for spot market transactions. Each sale is the result of individual bargaining between a refiner and his customers, sales under long-term contracts not being included. It is a spot market because shipment is to be made in the immediate future — usually within ten or fifteen days. Sales on the spot tank car markets are either sales to jobbers or consumers, sales by one refiner to another not being included. [37] The prices paid by jobbers and consumers in the various spot markets are published daily in the trade journals, Platt's Oilgram and Chicago Journal of Commerce. In the case of the Oilgram these prices are obtained by a market checker who daily calls refiners in the various refinery areas (major companies as well as independents) and ascertains the quantity and price of gasoline which they have sold to jobbers in spot sales. [38] After checking the prices so obtained against other sources of information (such as brokers' sales) and after considering the volume of sales reported at each price, he determines the lowest and highest prices at which gasoline is being sold to jobbers in substantial quantities on the spot market. [39] Thus, if he finds that substantial sales are reported at 5 1/8¢, 5 1/4¢ and 5 3/8¢, the Oilgram reports a price range of 5 1/8-5 3/8¢. The result is published in the Oilgram that same day. [40] The Chicago Journal of Commerce publishes similar quotations the day after the sales are reported. And its quotations cover sales to industrial consumers as well as to jobbers. But it was not shown that either journal had published prices paid by a major company as a price paid by jobbers on the tank car market.",marketing and distribution methods.
+417,103352,2,6,"In 1935 the 14 independent Mid-Continent refiners named in the indictment sold 377,988,736 gallons of gasoline. Of that output, the corporate respondents purchased about 56,200,000 gallons or approximately 15% [41] and the defendant companies who went to trial, about 17%. The monthly purchases of all defendant companies from Mid-Continent independents from March 1935 to April 1936 usually ranged between 600 and 900 tank cars and in a few months somewhat exceeded those amounts. Major company buying began under the Mid-Continent program on March 7, 1935. During the week before that buying commenced the Mid-Continent spot market for third grade gasoline rose 3/8¢. The low quotation on third grade gasoline was 3 1/2¢ on March 6, 1935. It rose to 4 3/4¢ early in June. That advance was evidenced by ten successive steps. The market on third grade gasoline then levelled out on a plateau which extended into January 1936, except for a temporary decline in the low quotation late in 1935. By the middle of January the low again had risen, this time to 5 1/4¢. It held substantially at that point until the middle of February 1936. By the end of February it had dropped to 5¢. It then levelled off at that low and remained there into May 1936 when the low dropped first to 4 7/8¢ and then to 4 3/4¢. It stayed there until the first week in July 1936. The low then rose to 4 7/8¢, maintained that level until mid-August, then started to drop until by successive steps it had declined to 4 1/2¢ before the middle of September. It stayed there until early October when it rose to 4 5/8¢, continuing at that level until middle November when it rose to 4 3/4¢. The low remained at substantially that point throughout the balance of 1936. During 1935, as the Mid-Continent spot market for third grade gasoline was rising, so was the East Texas spot market. And when in June 1935 the former levelled off for the balance of the year at a low of 4 3/4¢, the latter [42] levelled off, as we have seen, at a low of 4 5/8¢. During this period there were comparable movements on the Mid-Continent spot market for regular gasoline. From a low of 4 3/8¢ on March 7, 1935, it rose to a low of 5 5/8¢ early in June, that advance being evidenced by nine successive steps. As in the case of third grade gasoline, the market for regular gasoline then levelled out on a plateau which extended into January 1936. By the middle of January the low had risen to 6 1/8 ¢. It held at that point until the middle of February 1936. By the end of February it had dropped to 5 7/8¢. It rose to 6¢ in the first week of March, levelled off at that low and remained there into August 1936. By mid-August it started to drop — reaching 5 1/2¢ in September, going to 5 5/8¢ in October and to 5 3/4¢ in November, where it stayed through the balance of 1936. These plateaus are clearly shown by a chart of the market journals' quotations. But that does not of course mean that all sales on the spot market were made between the high and the low during the period in question. As we have said, the quotations of the market journals merely indicated the range of prices (usually an eighth) within which the bulk of the gasoline was being sold. Hence actual sales took place above the high and below the low. Thus between June and December 1935 while the low for third grade gasoline remained substantially at 4 3/4¢ and the high at 4 7/8¢ jobbers' and consumers' purchases [43] ranged from 4 3/8¢ to 5 1/8¢. A similar condition existed as respects regular gasoline. Purchases by the major companies likewise did not always fall within the range of these quotations. In fact, between 85 and 90% of their purchases from the independent refiners were made at prices which were at or below the low quotations in the market journals. [44] There were few such purchases above the high and not a substantial percentage at the high. [45]",the spot market prices during the buying program.
+418,103352,2,7,"That the spot market prices controlled prices of gasoline sold by the majors to the jobbers in the Mid-Western area during the indictment period is beyond question. For, as we have seen, the vast majority of jobbers' supply contracts during that period contained price formulae which were directly dependent on the Mid-Continent spot market prices. [46] Hence, as the latter rose, the prices to the jobbers under those contracts increased. There was also ample evidence that the spot market prices substantially affected the retail prices in the Mid-Western area during the indictment period. As we have seen, Standard of Indiana was known during this period as the price or market leader throughout this area. It was customary for the retailers to follow Standard's posted retail prices, which had as their original base the Mid-Continent spot market price. Standard's policy was to make changes in its posted retail price only when the spot market base went up or down at least 3/10¢ a gallon and maintained that change for a period of 7 days or more. [47] Standard's net reduction in posted prices for the 6 months preceding March 1935 was 1.9¢ per gallon. From March 1935 to June 1935 its posted retail prices were advanced 3/10¢ four times. Retail prices in the Mid-Western area kept close step with Mid-Continent spot market prices during 1935 and 1936, though there was a short lag between advances in the spot market prices and the consequent rises in retail prices. [48] This was true in general both of the subnormal [49] and normal retail prices. To be sure, when the tank car spot market levelled out on a plateau from June to the end of 1935, there was not quite the same evenness in the higher plateau of the average retail prices. For there were during the period in question large numbers of retail price cuts in various parts of the Mid-Western area, though they diminished substantially during the spring and summer of 1935. Yet the average service station price [50] (less tax) having reached 13.26¢ by the middle of April (from 12.56¢ near the first of March) never once fell below that amount; advanced regularly to 13.83¢ by the middle of June; declined to 13.44¢ in August; and after an increase to 13.41¢ during the last of the summer remained at 13.41¢ during the balance of 1935 except for a minor intermediate drop. In sum, the contours of the retail prices conformed in general to those of the tank car spot markets. The movements of the two were not just somewhat comparable; they were strikingly similar. Irrespective of whether the tank car spot market prices controlled the retail prices in this area, there was substantial competent evidence that they influenced them — substantially and effectively. And in this connection it will be recalled that when the buying program was formulated it was in part predicated on the proposition that a firm tank car market was necessary for a stabilization of the retail markets. As reported by one who attended the meeting on February 5, 1935, where the buying program was being discussed: It was generally assumed that all companies would come into the picture since a stable retail market requires a higher tank car market.",jobber and retail prices during the buying programs.
+419,103352,1,4,"The following facts or circumstances were developed at the trial by testimony or other evidence or were embraced in offers of proof made by respondents.
+Such of the following facts as were included in respondents' offers of proof were not sought to be proved in order to establish immunity from prosecution under the anti-trust laws. For admittedly the authorization under the National Industrial Recovery Act necessary for such immunity [51] had not been obtained. Rather respondents' offers of proof were made in order to show the circumstances which, respondents argue, should be taken into consideration in order to judge the purpose, effect and reasonableness of their activities in connection with the buying program. Arnott testified that on January 8 or 9, 1935, he reported the appointment of the Tank Car Stabilization Committee to officials of the Petroleum Administrative Board who, he said, expressed great interest in it. A member of that Committee late in January 1935 advised the Chairman of that Board of the necessity for action in getting tank car prices up before it is too late. The chairman replied that the tank car situation in relation to the price of crude is one about which we have no disagreement. How to bring about a correction is the stumbling block. There was evidence that at least general information concerning the meetings of the Tank Car Stabilization Committee was given a representative of the Board in February 1935. In March 1935 the Code authorities, with the approval of the Administrator, asked the major companies to curtail their manufacture of gasoline during that month by 1,400,000 barrels. The purpose was said to be to aid the small refiners by forcing the majors to buy part of their requirements from them. A voluntary curtailment of some 960,000 barrels was made. On March 12, 1935, Arnott saw the Chairman and at least one other representative of the Board. Among other things the buying programs were discussed. Arnott did not ask for the Board's approval of these programs nor its blessing. A representative of the Board testified that Arnott told them that he was conducting those buying programs on his own responsibility. Arnott denied this. The Chairman of the Board asked Arnott if the programs violated the anti-trust laws. Arnott said he did not believe they did and described what his group was doing. Arnott testified that he felt that the Board thought the program was sound and hoped it would work; and that if he had thought they disapproved, he would have discontinued his activities. There was no evidence that the Board told Arnott to discontinue the program. But on March 13, 1935, Arnott in addressing the District Allocators' meeting said, respecting these buying programs: I am perfectly conscious that we have made other efforts at times to have this question dealt with. It has always been done in group form. That has involved agreements, group agreements. Those of us who have had anything to do whatsoever with the whole national picture, who have come to Washington and have had any experience with the PAB and eventually the Department of Justice, know just how long that road is, and for some good reason or for some unknown reason or for no reason at all those agreements seem to have disappeared; those outstanding attempts — and they were really sincere and worthy attempts — have disappeared in a sort of cloud of mystery, and I don't think I, for one, or anybody else can tell you just where they have gone — they are out of our minds, they are completed, they are finished, and we are not interested. Respondents also offered to prove that a committee of the industry (the Blazer Committee) appointed by the Administrator to study the condition of the small units in the industry, made a report to him in March 1935 which stated, inter alia, as a recommendation: We know of nothing, apart from continued improvement in crude production control, which would be so helpful to the tank-car price of gasoline at this time as the substantial buying of distress gasoline by major companies. We understand a program of this sort is being considered by the Industry now in connection with a broad stabilization program. We therefore urge that the Administrator give it his approval and active support. [52] They also offered a memorandum dated March 22, 1935, from the Chairman of the Petroleum Administrative Board to the Administrator [53] commenting on the above report and making the following suggestion: We believe success in Code administration, assuming that it is to continue, requires that some of the recommendations made should be adopted; e.g., we have encouraged stabilization efforts designed at this time to aid the independent refiner, . .. On April 2, 1935, the Administrator wrote Arnott, referred to his letter of July 20, 1934 and stated, inter alia: The matter that at present concerns me is the necessity of complying with the requirements of the basic law. In authorizing the formulation of a stabilization program, I necessarily conditioned the authority granted, by providing that the requirements of Clause 2 of Subsection (a) of Section 3 of the National Industrial Recovery Act should be observed. I know you will appreciate that agreements between supplying companies which might be in conflict with the anti-trust laws of the United States require specific approval after due consideration if companies are to receive the protection afforded by Sections 4 and 5 of the National Industrial Recovery Act. I understand that the temporary character of a number of situations and the need for immediate action has made formalized agreements impracticable and in a number of instances they may be unnecessary. However, when the understandings arrived at as bases of solution of price wars affecting the industry over a considerable area are intended to operate over a definite period of time or involve substantial changes in the policy of the various supplying companies made only in consideration of similar action on the part of other companies, it is necessary that the procedure required by the Recovery Act be followed in order that the arrangement be legal. If any such agreements have been made I should like a report as to them. If they require approval to be effective . . . I should be glad to give consideration to them under the provisions of the Act. On April 22, 1935, the Petroleum Administrative Board wrote a letter to Arnott imposing three conditions on general stabilization work: (1) there should be no stabilization meeting without a representative of the Board being present; (2) every element in the industry should be heard from before any decisions were made; (3) no general instructions should be given under the July 20, 1934 letter. A meeting of Arnott's committee and members of the Board was held on May 8, 1935. A representative of the Board testified that they called Arnott on the carpet to request him to explain to them what he had been doing. Arnott's group considered the conditions imposed by the Board quite impossible. The Board assigned two of its staff to work the problem out with one of Arnott's men. According to the testimony of one of the representatives of the Board at that meeting, Arnott did not ask for the Board's approval of the buying programs — nothing being said one way or the other, about approval or disapproval. And he testified that Arnott in substance was told at that meeting by the Board's Chairman that the letter of July 20, 1934, from the Administrator to Arnott (quoted supra p. 175) did not give authority to conduct any buying program; [54] and that Arnott said he was not relying on that letter for approval. Arnott, however, testified that he recalled no such statement made by the Board's Chairman. Apparently, however, Arnott, in answer to questions, gave a general explanation of the buying programs, stating that the majors were continuing informally to buy; that there was no pool; that no one was obliged to make purchases; that they were trying to lift from independent refiners distress gasoline which was burdening the market. [55] Respondents also offered to prove that on May 14, 1935, the Chairman of the Petroleum Administrative Board asked Arnott to undertake to stabilize the Pennsylvania refinery market in the way that he had stabilized the Mid-Continent refinery market; that in connection with this request the Board evinced support and approval of the Mid-Continent buying program; and that Arnott undertook to do what he could in the matter and called a meeting of the Pennsylvania refiners for May 28, 1935. Apparently the Schechter decision terminated that undertaking. Respondents also offered portions of a final report [56] prepared by the Marketing Division of the Petroleum Administrative Board which discussed the work of the General Stabilization Committee [57] saying, inter alia: One of the most important was the tank-car committee, which attempted to get the tank-car market raised more in line with the price of crude recovery cost on the theory that a firm tank-car market was essential to a stabilized retail structure. And respondents offered testimony of a member of the Board before a Senate Committee in 1937 respecting the buying pool efforts, that began in December of 1933 and continued from then on during the entire period of the Petroleum Code. That testimony was: It was an effort of the Department and the industrial committees to bring about the normal relationship between gasoline prices and crude oil prices, in order to permit the independent, non-integrated refiner to be able to operate without loss. In sum, respondents by this and similar evidence offered to establish that the Petroleum Administrative Board knew of the buying programs and acquiesced in them. And respondents by those facts, together with those discussed under II, supra, undertook to show that their objectives under the buying programs were in line with those of the federal government under the Code: to keep the price of crude oil at a minimum of $1 a barrel; to restore the wholesale price level of gasoline at the refinery to a parity with crude oil; to stabilize retail prices at a normal spread between the refinery price and the retail price. B. OTHER FACTORS ALLEGED TO HAVE CAUSED OR CONTRIBUTED TO THE RISE IN THE SPOT MARKET. Respondents do not contend that the buying programs were not a factor in the price rise and in the stabilization of the spot markets during 1935 and 1936. But they do contend that they were relatively minor ones, because of the presence of other economic forces such as the following:
+Under the Code an attempt was made for the first time to balance the production of crude oil with the consumptive demand for gasoline. Monthly estimates of gasoline consumption would be made by the Bureau of Mines. The quantity of crude oil necessary to satisfy that demand was also estimated, broken down into allowables for each state, and recommended to the states. And there was evidence that the states would approximately conform to those recommendations. After the Code the oil states continued the same practice under an Interstate Compact which permitted them to agree as to the quantities of crude oil which they would allow to be produced. [58]
+As we have noted, this law was enacted late in February 1935 and began to be effective the first part of March 1935. Prior to this act, control of hot oil by the states had not been effective for any extended period of time. Throughout 1933 and 1934 from 150,000 to 200,000 barrels of crude oil a day were estimated to have been produced in East Texas in excess of the state's allowables, much of it going into interstate commerce. After the Connally Act went into operation, no hot gasoline went into interstate commerce according to respondents' evidence.
+As we have noted, crude oil was brought to a dollar a barrel near the end of September 1933. Before the Connally Act, however, hot oil flooded the market at substantially lower prices. Gasoline produced from hot oil forced the price of gasoline produced from crude oil down below cost. But with the elimination of the hot oil, fluctuations in the price of crude ceased. This had a stabilizing effect on the price of gasoline.
+Beginning in the spring of 1935 there was an increase in demand for gasoline. During the whole indictment period every month showed an increase over the corresponding month in the previous year. For the entire year of 1935 consumption for the country as a whole was 7% more than for 1934; that for 1936 was about 10% over 1935 — substantially the same increases taking place in the Mid-Western area.
+Under the Code crude oil could be withdrawn from storage only with the approval of the Administrator. Also under the Code there were manufacturing quotas for gasoline which through Code authorities were allocated among the refiners. In March 1935, as we have seen, gasoline inventories of the majors were reduced by over 900,000 barrels through a voluntary curtailment program. The demand was so heavy that the industry withdrew from storage and refined over 22,000,000 barrels of crude oil in storage in 1935. Further, imports of crude oil were limited by order of the Administrator.
+The years 1935 and 1936 were marked by improving general business conditions and rising prices everywhere. Much testimony was taken on these and related points. It was designed to show that under the conditions which existed during the indictment period, stability in the market was to be expected from the play of these various economic forces. For it was argued that by reason of those forces supply and demand were brought into a reasonable continuing balance with the resultant stabilization of the markets. And there was much testimony from respondents' witnesses that the above factors as well as the buying programs did contribute to price stability during this period. But no witness assumed to testify as to how much of a factor the buying program had been.",Other Circumstances Allegedly Relevant to the Offense Charged in the Indictment.
+420,103352,3,1,"Under the Code an attempt was made for the first time to balance the production of crude oil with the consumptive demand for gasoline. Monthly estimates of gasoline consumption would be made by the Bureau of Mines. The quantity of crude oil necessary to satisfy that demand was also estimated, broken down into allowables for each state, and recommended to the states. And there was evidence that the states would approximately conform to those recommendations. After the Code the oil states continued the same practice under an Interstate Compact which permitted them to agree as to the quantities of crude oil which they would allow to be produced. [58]",Control of production of crude oil.
+421,103352,3,2,"As we have noted, this law was enacted late in February 1935 and began to be effective the first part of March 1935. Prior to this act, control of hot oil by the states had not been effective for any extended period of time. Throughout 1933 and 1934 from 150,000 to 200,000 barrels of crude oil a day were estimated to have been produced in East Texas in excess of the state's allowables, much of it going into interstate commerce. After the Connally Act went into operation, no hot gasoline went into interstate commerce according to respondents' evidence.",Connally Act.
+422,103352,3,3,"As we have noted, crude oil was brought to a dollar a barrel near the end of September 1933. Before the Connally Act, however, hot oil flooded the market at substantially lower prices. Gasoline produced from hot oil forced the price of gasoline produced from crude oil down below cost. But with the elimination of the hot oil, fluctuations in the price of crude ceased. This had a stabilizing effect on the price of gasoline.",$1 Crude oil.
+423,103352,3,4,Beginning in the spring of 1935 there was an increase in demand for gasoline. During the whole indictment period every month showed an increase over the corresponding month in the previous year. For the entire year of 1935 consumption for the country as a whole was 7% more than for 1934; that for 1936 was about 10% over 1935 — substantially the same increases taking place in the Mid-Western area.,Increase in consumptive demand.
+424,103352,3,5,"Under the Code crude oil could be withdrawn from storage only with the approval of the Administrator. Also under the Code there were manufacturing quotas for gasoline which through Code authorities were allocated among the refiners. In March 1935, as we have seen, gasoline inventories of the majors were reduced by over 900,000 barrels through a voluntary curtailment program. The demand was so heavy that the industry withdrew from storage and refined over 22,000,000 barrels of crude oil in storage in 1935. Further, imports of crude oil were limited by order of the Administrator.",Control of inventory withdrawal and of manufacture of gasoline.
+425,103352,3,6,"The years 1935 and 1936 were marked by improving general business conditions and rising prices everywhere. Much testimony was taken on these and related points. It was designed to show that under the conditions which existed during the indictment period, stability in the market was to be expected from the play of these various economic forces. For it was argued that by reason of those forces supply and demand were brought into a reasonable continuing balance with the resultant stabilization of the markets. And there was much testimony from respondents' witnesses that the above factors as well as the buying programs did contribute to price stability during this period. But no witness assumed to testify as to how much of a factor the buying program had been.",Improved business conditions.
+426,103352,1,5,"
+The court charged the jury that it was a violation of the Sherman Act for a group of individuals or corporations to act together to raise the prices to be charged for the commodity which they manufactured where they controlled a substantial part of the interstate trade and commerce in that commodity. The court stated that where the members of a combination had the power to raise prices and acted together for that purpose, the combination was illegal; and that it was immaterial how reasonable or unreasonable those prices were or to what extent they had been affected by the combination. It further charged that if such illegal combination existed, it did not matter that there may also have been other factors which contributed to the raising of the prices. In that connection, it referred specifically to the economic factors which we have previously discussed and which respondents contended were primarily responsible for the price rise and the spot markets' stability in 1935 and 1936, viz. control of production, the Connally Act, the price of crude oil, an increase in consumptive demand, control of inventories and manufacturing quotas, and improved business conditions. The court then charged that, unless the jury found beyond a reasonable doubt that the price rise and its continuance were caused by the combination and not caused by those other factors, verdicts of not guilty should be returned. It also charged that there was no evidence of governmental approval which would exempt the buying programs from the prohibitions of the Sherman Act; and that knowledge or acquiescence of officers of the government or the good intentions of the members of the combination would not give immunity from prosecution under that Act. The Circuit Court of Appeals held this charge to be reversible error, since it was based upon the theory that such a combination was illegal per se. In its view respondents' activities were not unlawful unless they constituted an unreasonable restraint of trade. Hence, since that issue had not been submitted to the jury and since evidence bearing on it had been excluded, that court reversed and remanded for a new trial so that the character of those activities and their effect on competition could be determined. In answer to the government's petition respondents here contend that the judgment of the Circuit Court of Appeals was correct, since there was evidence that they had affected prices only in the sense that the removal of the competitive evil of distress gasoline by the buying programs had permitted prices to rise to a normal competitive level; that their activities promoted rather than impaired fair competitive opportunities; and therefore that their activities had not unduly or unreasonably restrained trade. And they also contend that certain evidence which was offered should have been admitted as bearing on the purpose and end sought to be attained, the evil believed to exist, and the nature of the restraint and its effect. By their cross-petition respondents contend that the record contains no substantial competent evidence that the combination, either in purpose or effect, unreasonably restrained trade within the meaning of the Sherman Act, and therefore that the Circuit Court of Appeals erred in holding that they were not entitled to directed verdicts of acquittal. In United States v. Trenton Potteries Co., 273 U.S. 392, this Court sustained a conviction under the Sherman Act where the jury was charged that an agreement on the part of the members of a combination, controlling a substantial part of an industry, upon the prices which the members are to charge for their commodity is in itself an unreasonable restraint of trade without regard to the reasonableness of the prices or the good intentions of the combining units. There the combination was composed of those who controlled some 82 per cent of the business of manufacturing and distributing in the United States vitreous pottery. Their object was to fix the prices for the sale of that commodity. In that case the trial court refused various requests to charge that the agreement to fix prices did not itself constitute a violation of law unless the jury also found that it unreasonably restrained interstate commerce. This Court reviewed the various price-fixing cases under the Sherman Act beginning with United States v. Trans-Missouri Freight Assn., 166 U.S. 290, and United States v. Joint Traffic Assn., 171 U.S. 505, and said . . . it has since often been decided and always assumed that uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce is prohibited by the Sherman Law, despite the reasonableness of the particular prices agreed upon. (p. 398.) This Court pointed out that the so-called rule of reason announced in Standard Oil Co. v. United States, 221 U.S. 1, and in United States v. American Tobacco Co., 221 U.S. 106, had not affected this view of the illegality of price-fixing agreements. And in holding that agreements to fix or maintain prices are not reasonable restraints of trade under the statute merely because the prices themselves are reasonable, it said (pp. 397-398): The aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition. The power to fix prices, whether reasonably exercised or not, involves power to control the market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions. Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable — a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies. In conclusion this Court emphasized that the Sherman Act is not only a prohibition against the infliction of a particular type of public injury, but also, as stated in Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, a limitation of rights which may be pushed to evil consequences and therefore restrained. But respondents claim that other decisions of this Court afford them adequate defenses to the indictment. Among those on which they place reliance are Appalachian Coals, Inc. v. United States, 288 U.S. 344; Sugar Institute, Inc. v. United States, 297 U.S. 553; Maple Flooring Mfrs. Assn. v. United States, 268 U.S. 563; Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588; Chicago Board of Trade v. United States, 246 U.S. 231; and the American Tobacco and Standard Oil cases, supra. But we do not think that line of cases is apposite. As clearly indicated in the Trenton Potteries case, the American Tobacco and Standard Oil cases have no application to combinations operating directly on prices or price structures. And we are of the opinion that Appalachian Coals, Inc. v. United States, supra , is not in point. In that case certain producers of bituminous coal created an exclusive selling agency for their coal. The agency was to establish standard classifications and sell the coal of its principals at the best prices obtainable. The occasion for the formation of the agency was the existence of certain so-called injurious practices and conditions in the industry. One of these was the problem of distress coal — coal shipped to the market which was unsold at the time of delivery and therefore dumped on the market irrespective of demand. The agency was to promote the systematic study of the marketing and distribution of coal, its demand and consumption; to maintain an inspection and an engineering department to demonstrate to customers the advantages of this type of coal and to promote an extensive advertising campaign; to provide a research department to demonstrate proper and efficient methods of burning coal and thus to aid producers in their competition with substitute fuels; to operate a credit department dealing with the reliability of purchasers; and to make the sale of coal more economical. That agency was also to sell all the coal of its principals at the best prices obtainable and, if all could not be sold, to apportion orders upon a stated basis. And, save for certain stated exceptions, it was to determine the prices at which sales would be made without consultation with its principals. This Court concluded that so far as actual purpose was concerned, the defendant producers were engaged in a fair and open endeavor to aid the industry in a measurable recovery from its plight. And it observed that the plan did not either contemplate or involve the fixing of market prices; that defendants would not be able to fix the price of coal in the consuming markets; that their coal would continue to be subject to active competition. To the contention that the plan would have a tendency to stabilize market prices and to raise them to a higher level, this Court replied (p. 374): The fact that the correction of abuses may tend to stabilize a business, or to produce fairer price levels, does not mean that the abuses should go uncorrected or that cooperative endeavor to correct them necessarily constitutes an unreasonable restraint of trade. The intelligent conduct of commerce through the acquisition of full information of all relevant facts may properly be sought by the cooperation of those engaged in trade, although stabilization of trade and more reasonable prices may be the result. In distinguishing the Trenton Potteries case this Court said (p. 375): In the instant case there is, as we have seen, no intent or power to fix prices, abundant competitive opportunities will exist in all markets where defendants' coal is sold, and nothing has been shown to warrant the conclusion that defendants' plan will have an injurious effect upon competition in these markets. Thus in reality the only essential thing in common between the instant case and the Appalachian Coals case is the presence in each of so-called demoralizing or injurious practices. The methods of dealing with them were quite divergent. In the instant case there were buying programs of distress gasoline which had as their direct purpose and aim the raising and maintenance of spot market prices and of prices to jobbers and consumers in the Mid-Western area, by the elimination of distress gasoline as a market factor. The increase in the spot market prices was to be accomplished by a well organized buying program on that market: regular ascertainment of the amounts of surplus gasoline; assignment of sellers among the buyers; regular purchases at prices which would place and keep a floor under the market. Unlike the plan in the instant case, the plan in the Appalachian Coals case was not designed to operate vis-a-vis the general consuming market and to fix the prices on that market. Furthermore, the effect, if any, of that plan on prices was not only wholly incidental but also highly conjectural. For the plan had not then been put into operation. Hence this Court expressly reserved jurisdiction in the District Court to take further proceedings if, inter alia, in actual operation the plan proved to be an undue restraint upon interstate commerce. And as we have seen it would per se constitute such a restraint if price-fixing were involved. Nor are Maple Flooring Mfrs. Assn. v. United States and Cement Mfrs. Protective Assn. v. United States, supra, at all relevant to the problem at hand. For the systems there under attack were methods of gathering and distributing information respecting business operations. It was noted in those cases that there was not present any agreement for price-fixing. And they were decided, as indicated in the Trenton Potteries case, on the express assumption that any agreement for price-fixing would have been illegal per se. And since that element was lacking, the only issues were whether or not on the precise facts there presented such activities of the combinations constituted unlawful restraints of commerce. A majority of the Court held that they did not. Nor can respondents find sanction in Chicago Board of Trade v. United States, supra , for the buying programs here under attack. That case involved a prohibition on the members of the Chicago Board of Trade from purchasing or offering to purchase between the closing of the session and its opening the next day grains (under a special class of contracts) at a price other than the closing bid. The rule was somewhat akin to rules of an exchange limiting the period of trading, for as stated by this Court the restriction was upon the period of price-making. No attempt was made to show that the purpose or effect of the rule was to raise or depress prices. The rule affected only a small proportion of the commerce in question. And among its effects was the creation of a public market for grains under that special contract class, where prices were determined competitively and openly. Since it was not aimed at price manipulation or the control of the market prices and since it had no appreciable effect on general market prices, the rule survived as a reasonable restraint of trade. There was no deviation from the principle of the Trenton Potteries case in Sugar Institute v. United States, supra . For in that case so-called competitive abuses were not permitted as defenses to violations of the Sherman Act bottomed on a trade association's efforts to create and maintain a uniform price structure. Thus for over forty years this Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act and that no showing of so-called competitive abuses or evils which those agreements were designed to eliminate or alleviate may be interposed as a defense. And we reaffirmed that well-established rule in clear and unequivocal terms in Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458, where we said: Agreements for price maintenance of articles moving in interstate commerce are, without more, unreasonable restraints within the meaning of the Sherman Act because they eliminate competition, United States v. Trenton Potteries Co., 273 U.S. 392, and agreements which create potential power for such price maintenance exhibited by its actual exertion for that purpose are in themselves unlawful restraints within the meaning of the Sherman Act, . . . Therefore the sole remaining question on this phase of the case is the applicability of the rule of the Trenton Potteries case to these facts. Respondents seek to distinguish the Trenton Potteries case from the instant one. They assert that in that case the parties substituted an agreed-on price for one determined by competition; that the defendants there had the power and purpose to suppress the play of competition in the determination of the market price; and therefore that the controlling factor in that decision was the destruction of market competition, not whether prices were higher or lower, reasonable or unreasonable. Respondents contend that in the instant case there was no elimination in the spot tank car market of competition which prevented the prices in that market from being made by the play of competition in sales between independent refiners and their jobber and consumer customers; that during the buying programs those prices were in fact determined by such competition; that the purchases under those programs were closely related to or dependent on the spot market prices; that there was no evidence that the purchases of distress gasoline under those programs had any effect on the competitive market price beyond that flowing from the removal of a competitive evil; and that if respondents had tried to do more than free competition from the effect of distress gasoline and to set an arbitrary non-competitive price through their purchases, they would have been without power to do so. But we do not deem those distinctions material. In the first place, there was abundant evidence that the combination had the purpose to raise prices. And likewise, there was ample evidence that the buying programs at least contributed to the price rise and the stability of the spot markets, and to increases in the price of gasoline sold in the Mid-Western area during the indictment period. That other factors also may have contributed to that rise and stability of the markets is immaterial. For in any such market movement, forces other than the purchasing power of the buyers normally would contribute to the price rise and the market stability. So far as cause and effect are concerned it is sufficient in this type of case if the buying programs of the combination resulted in a price rise and market stability which but for them would not have happened. For this reason the charge to the jury that the buying programs must have caused the price rise and its continuance was more favorable to respondents than they could have required. Proof that there was a conspiracy, that its purpose was to raise prices, and that it caused or contributed to a price rise is proof of the actual consummation or execution of a conspiracy under § 1 of the Sherman Act. Secondly, the fact that sales on the spot markets were still governed by some competition is of no consequence. For it is indisputable that that competition was restricted through the removal by respondents of a part of the supply which but for the buying programs would have been a factor in determining the going prices on those markets. But the vice of the conspiracy was not merely the restriction of supply of gasoline by removal of a surplus. As we have said, this was a well organized program. The timing and strategic placement of the buying orders for distress gasoline played an important and significant role. Buying orders were carefully placed so as to remove the distress gasoline from weak hands. Purchases were timed. Sellers were assigned to the buyers so that regular outlets for distress gasoline would be available. The whole scheme was carefully planned and executed to the end that distress gasoline would not overhang the markets and depress them at any time. And as a result of the payment of fair going market prices a floor was placed and kept under the spot markets. Prices rose and jobbers and consumers in the Mid-Western area paid more for their gasoline than they would have paid but for the conspiracy. Competition was not eliminated from the markets; but it was clearly curtailed, since restriction of the supply of gasoline, the timing and placement of the purchases under the buying programs and the placing of a floor under the spot markets obviously reduced the play of the forces of supply and demand. The elimination of so-called competitive evils is no legal justification for such buying programs. The elimination of such conditions was sought primarily for its effect on the price structures. Fairer competitive prices, it is claimed, resulted when distress gasoline was removed from the market. But such defense is typical of the protestations usually made in price-fixing cases. Ruinous competition, financial disaster, evils of price cutting and the like appear throughout our history as ostensible justifications for price-fixing. If the so-called competitive abuses were to be appraised here, the reasonableness of prices would necessarily become an issue in every price-fixing case. In that event the Sherman Act would soon be emasculated; its philosophy would be supplanted by one which is wholly alien to a system of free competition; it would not be the charter of freedom which its framers intended. The reasonableness of prices has no constancy due to the dynamic quality of business facts underlying price structures. Those who fixed reasonable prices today would perpetuate unreasonable prices tomorrow, since those prices would not be subject to continuous administrative supervision and readjustment in light of changed conditions. Those who controlled the prices would control or effectively dominate the market. And those who were in that strategic position would have it in their power to destroy or drastically impair the competitive system. But the thrust of the rule is deeper and reaches more than monopoly power. Any combination which tampers with price structures is engaged in an unlawful activity. Even though the members of the price-fixing group were in no position to control the market, to the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces. The Act places all such schemes beyond the pale and protects that vital part of our economy against any degree of interference. Congress has not left with us the determination of whether or not particular price-fixing schemes are wise or unwise, healthy or destructive. It has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies. It has no more allowed genuine or fancied competitive abuses as a legal justification for such schemes than it has the good intentions of the members of the combination. If such a shift is to be made, it must be done by the Congress. Certainly Congress has not left us with any such choice. Nor has the Act created or authorized the creation of any special exception in favor of the oil industry. Whatever may be its peculiar problems and characteristics, the Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike. There was accordingly no error in the refusal to charge that in order to convict the jury must find that the resultant prices were raised and maintained at high, arbitrary and non-competitive levels. The charge in the indictment to that effect was surplusage. Nor is it important that the prices paid by the combination were not fixed in the sense that they were uniform and inflexible. Price-fixing as used in the Trenton Potteries case has no such limited meaning. An agreement to pay or charge rigid, uniform prices would be an illegal agreement under the Sherman Act. But so would agreements to raise or lower prices whatever machinery for price-fixing was used. That price-fixing includes more than the mere establishment of uniform prices is clearly evident from the Trenton Potteries case itself, where this Court noted with approval Swift & Co. v. United States, 196 U.S. 375, in which a decree was affirmed which restrained a combination from raising or lowering prices or fixing uniform prices at which meats will be sold. Hence, prices are fixed within the meaning of the Trenton Potteries case if the range within which purchases or sales will be made is agreed upon, if the prices paid or charged are to be at a certain level or on ascending or descending scales, if they are to be uniform, or if by various formulae they are related to the market prices. They are fixed because they are agreed upon. And the fact that, as here, they are fixed at the fair going market price is immaterial. For purchases at or under the market are one species of price-fixing. In this case, the result was to place a floor under the market — a floor which served the function of increasing the stability and firmness of market prices. That was repeatedly characterized in this case as stabilization. But in terms of market operations stabilization is but one form of manipulation. And market manipulation in its various manifestations is implicitly an artificial stimulus applied to (or at times a brake on) market prices, a force which distorts those prices, a factor which prevents the determination of those prices by free competition alone. Respondents, however, argue that there was no correlation between the amount of gasoline which the major companies were buying and the trend of prices on the spot markets. They point to the fact that such purchasing was lightest during the period of the market rise in the spring of 1935, and heaviest in the summer and early fall of 1936 when the prices declined; and that it decreased later in 1936 when the prices rose. But those facts do not militate against the conclusion that these buying programs were a species of price-fixing or manipulation. Rather they are wholly consistent with the maintenance of a floor under the market or a stabilization operation of this type, since the need for purchases under such a program might well decrease as prices rose and increase as prices declined. As we have indicated, the machinery employed by a combination for price-fixing is immaterial. Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se. Where the machinery for price-fixing is an agreement on the prices to be charged or paid for the commodity in the interstate or foreign channels of trade, the power to fix prices exists if the combination has control of a substantial part of the commerce in that commodity. Where the means for price-fixing are purchases or sales of the commodity in a market operation or, as here, purchases of a part of the supply of the commodity for the purpose of keeping it from having a depressive effect on the markets, such power may be found to exist though the combination does not control a substantial part of the commodity. In such a case that power may be established if as a result of market conditions, the resources available to the combinations, the timing and the strategic placement of orders and the like, effective means are at hand to accomplish the desired objective. But there may be effective influence over the market though the group in question does not control it. Price-fixing agreements may have utility to members of the group though the power possessed or exerted falls far short of domination and control. Monopoly power United States v. Patten, 226 U.S. 525) is not the only power which the Act strikes down, as we have said. Proof that a combination was formed for the purpose of fixing prices and that it caused them to be fixed or contributed to that result is proof of the completion of a price-fixing conspiracy under § 1 of the Act. [59] The indictment in this case charged that this combination had that purpose and effect. And there was abundant evidence to support it. Hence the existence of power on the part of members of the combination to fix prices was but a conclusion from the finding that the buying programs caused or contributed to the rise and stability of prices. As to knowledge or acquiescence of officers of the Federal Government little need be said. The fact that Congress through utilization of the precise methods here employed could seek to reach the same objectives sought by respondents does not mean that respondents or any other group may do so without specific Congressional authority. Admittedly no approval of the buying programs was obtained under the National Industrial Recovery Act prior to its termination on June 16, 1935, (§ 2 (c)) which would give immunity to respondents from prosecution under the Sherman Act. Though employees of the government may have known of those programs and winked at then or tacitly approved them, no immunity would have thereby been obtained. For Congress had specified the precise manner and method of securing immunity. None other would suffice. Otherwise national policy on such grave and important issues as this would be determined not by Congress nor by those to whom Congress had delegated authority but by virtual volunteers. The method adopted by Congress for alleviating the penalties of the Sherman Act through approval by designated public representatives [60] would be supplanted by a foreign system. But even had approval been obtained for the buying programs, that approval would not have survived the expiration in June 1935 of the Act which was the source of that approval. As we have seen, the buying program continued unabated during the balance of 1935 and far into 1936. As we said in United States v. Borden Co., 308 U.S. 188, 202, A conspiracy thus continued is in effect renewed during each day of its continuance. Hence, approval or knowledge and acquiescence of federal authorities prior to June 1935 could have no relevancy to respondents' activities subsequent thereto. The fact that the buying programs may have been consistent with the general objectives and ends sought to be obtained under the National Industrial Recovery Act is likewise irrelevant to the legality under the Sherman Act of respondents' activities either prior to or after June 1935. For as we have seen price-fixing combinations which lack Congressional sanction are illegal per se; they are not evaluated in terms of their purpose, aim or effect in the elimination of so-called competitive evils. Only in the event that they were, would such considerations have been relevant. Accordingly we conclude that the Circuit Court of Appeals erred in reversing the judgments on this ground. A fortiori the position taken by respondents in their cross petition that they were entitled to directed verdicts of acquittal is untenable.
+What we have said disposes of most of the errors alleged in exclusion of evidence. The offers of proof covering the background and operation of the National Industrial Recovery Act and the Petroleum Code, the condition of the oil industry, the alleged encouragement, cooperation and acquiescence of the Federal Petroleum Administration in the buying programs and the like were properly excluded, insofar as they bore on the nature of the restraint and the purpose or end sought to be attained. For as we have seen the reasonableness of the restraint was not properly an issue in the case. There were, however, offers of proof alleged to be relevant to the cause of the price rise and the subsequent stability of the markets during the period in question. In addition to the foregoing offers, respondents sought to show that the presence of hot oil and hot gasoline had greatly depressed the market from 1932 to early in 1935 when the Connally Act became effective, except for one short period from October to December 1934; that beginning in October 1934 shipment of hot oil from East Texas into interstate commerce had for the first time been effectively controlled; that within a period of six weeks thereafter the tank car spot market rose 1 1/2 ¢ — an amount corresponding to the price rise from March to June 1935; that the various factors which primarily affect price were almost precisely the same in the fall of 1934 as they were in the spring of 1935; that the price of gasoline had borne a constant relationship to the price of crude oil from January 1918 to October 1933 — that relationship disappearing when the price of hot oil fell below legal crude but reappearing in October 1934, and again in March 1935, when hot oil was eliminated; that gasoline prices were more depressed than the prices of other commodities and the cost of living in 1933 and 1934, and recovered and rose less than such other prices and the cost of living in 1935 and 1936. We think there was no reversible error in exclusion of these various offers. To the extent that they were designed to show that respondents by their buying programs had not raised the spot market prices to an artificial and non-competitive level, these offers of proof were properly denied as immaterial. For, as we have said, the reasonableness of the prices and the fact that respondents' activities merely removed from the market the depressive effect of distress gasoline were not relevant to the issues. And to the extent that these offers of proof were aimed at establishing and evaluating other contributory causes for the price rise and market stability during the indictment period, they were not improperly denied. In the first place, the record is replete with evidence showing the condition of the oil industry at the time of the adoption of the code and during the code period. There was ample testimony bearing on the other causal factors which respondents contend were primarily responsible for the price rise and market stability during the indictment period. Much of the refused testimony was merely cumulative in nature. A trial court has wide discretion in a situation of that kind. The trial lasted about three and a half months. Terminal points are necessary even in a conspiracy trial involving intricate business facts and legal issues. In the second place, the offer to show the market conditions late in 1934 when hot oil was temporarily under control was not improperly denied. There was substantial evidence in the record to demonstrate the depressive market effect of hot oil. While the offer was not wholly irrelevant to the issues, it was clearly collateral. The trial court has a wide range for discretion in the exclusion of such evidence. See Golden Reward Mining Co. v. Buxton Mining Co., 97 F. 413, 416-417; Chesterfield Mfg. Co. v. Leota Cotton Mills, 194 F. 358, 359. Admission of testimony showing the market conditions late in 1934 would have opened an inquiry into causal factors as involved and interrelated as those present during the indictment period. That might have confused rather than enlightened the jury. In any event it would not have eliminated the buying programs as contributory causes to the market rise and stability in 1935 and 1936. And it would have prolonged the inquiry and protracted the trial. As once stated by Mr. Justice Holmes, one objection to the introduction of collateral issues is a purely practical one, a concession to the shortness of life. Reeve v. Dennett, 145 Mass. 23, 28; 11 N.E. 938, 944. And see Union Stock Yard & Transit Co. v. United States, 308 U.S. 213, 223-224. Similar reasons sustain the action of the trial court in limiting the inquiry into general economic conditions antedating and during the indictment period. In conclusion, we do not think that there was an abuse of discretion by the trial court in the exclusion of the proffered evidence. A great mass of evidence was received, the range of inquiry was wide, the factual questions relating to the oil industry and respondents' activities were intricate and involved. In such a case a new trial will not be ordered for alleged errors in exclusion of evidence where matters of substance are not affected. See United States v. Trenton Potteries Co., supra, p. 404.",Application of the Sherman Act.
+427,103352,2,1,"The court charged the jury that it was a violation of the Sherman Act for a group of individuals or corporations to act together to raise the prices to be charged for the commodity which they manufactured where they controlled a substantial part of the interstate trade and commerce in that commodity. The court stated that where the members of a combination had the power to raise prices and acted together for that purpose, the combination was illegal; and that it was immaterial how reasonable or unreasonable those prices were or to what extent they had been affected by the combination. It further charged that if such illegal combination existed, it did not matter that there may also have been other factors which contributed to the raising of the prices. In that connection, it referred specifically to the economic factors which we have previously discussed and which respondents contended were primarily responsible for the price rise and the spot markets' stability in 1935 and 1936, viz. control of production, the Connally Act, the price of crude oil, an increase in consumptive demand, control of inventories and manufacturing quotas, and improved business conditions. The court then charged that, unless the jury found beyond a reasonable doubt that the price rise and its continuance were caused by the combination and not caused by those other factors, verdicts of not guilty should be returned. It also charged that there was no evidence of governmental approval which would exempt the buying programs from the prohibitions of the Sherman Act; and that knowledge or acquiescence of officers of the government or the good intentions of the members of the combination would not give immunity from prosecution under that Act. The Circuit Court of Appeals held this charge to be reversible error, since it was based upon the theory that such a combination was illegal per se. In its view respondents' activities were not unlawful unless they constituted an unreasonable restraint of trade. Hence, since that issue had not been submitted to the jury and since evidence bearing on it had been excluded, that court reversed and remanded for a new trial so that the character of those activities and their effect on competition could be determined. In answer to the government's petition respondents here contend that the judgment of the Circuit Court of Appeals was correct, since there was evidence that they had affected prices only in the sense that the removal of the competitive evil of distress gasoline by the buying programs had permitted prices to rise to a normal competitive level; that their activities promoted rather than impaired fair competitive opportunities; and therefore that their activities had not unduly or unreasonably restrained trade. And they also contend that certain evidence which was offered should have been admitted as bearing on the purpose and end sought to be attained, the evil believed to exist, and the nature of the restraint and its effect. By their cross-petition respondents contend that the record contains no substantial competent evidence that the combination, either in purpose or effect, unreasonably restrained trade within the meaning of the Sherman Act, and therefore that the Circuit Court of Appeals erred in holding that they were not entitled to directed verdicts of acquittal. In United States v. Trenton Potteries Co., 273 U.S. 392, this Court sustained a conviction under the Sherman Act where the jury was charged that an agreement on the part of the members of a combination, controlling a substantial part of an industry, upon the prices which the members are to charge for their commodity is in itself an unreasonable restraint of trade without regard to the reasonableness of the prices or the good intentions of the combining units. There the combination was composed of those who controlled some 82 per cent of the business of manufacturing and distributing in the United States vitreous pottery. Their object was to fix the prices for the sale of that commodity. In that case the trial court refused various requests to charge that the agreement to fix prices did not itself constitute a violation of law unless the jury also found that it unreasonably restrained interstate commerce. This Court reviewed the various price-fixing cases under the Sherman Act beginning with United States v. Trans-Missouri Freight Assn., 166 U.S. 290, and United States v. Joint Traffic Assn., 171 U.S. 505, and said . . . it has since often been decided and always assumed that uniform price-fixing by those controlling in any substantial manner a trade or business in interstate commerce is prohibited by the Sherman Law, despite the reasonableness of the particular prices agreed upon. (p. 398.) This Court pointed out that the so-called rule of reason announced in Standard Oil Co. v. United States, 221 U.S. 1, and in United States v. American Tobacco Co., 221 U.S. 106, had not affected this view of the illegality of price-fixing agreements. And in holding that agreements to fix or maintain prices are not reasonable restraints of trade under the statute merely because the prices themselves are reasonable, it said (pp. 397-398): The aim and result of every price-fixing agreement, if effective, is the elimination of one form of competition. The power to fix prices, whether reasonably exercised or not, involves power to control the market and to fix arbitrary and unreasonable prices. The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed. Agreements which create such potential power may well be held to be in themselves unreasonable or unlawful restraints, without the necessity of minute inquiry whether a particular price is reasonable or unreasonable as fixed and without placing on the government in enforcing the Sherman Law the burden of ascertaining from day to day whether it has become unreasonable through the mere variation of economic conditions. Moreover, in the absence of express legislation requiring it, we should hesitate to adopt a construction making the difference between legal and illegal conduct in the field of business relations depend upon so uncertain a test as whether prices are reasonable — a determination which can be satisfactorily made only after a complete survey of our economic organization and a choice between rival philosophies. In conclusion this Court emphasized that the Sherman Act is not only a prohibition against the infliction of a particular type of public injury, but also, as stated in Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49, a limitation of rights which may be pushed to evil consequences and therefore restrained. But respondents claim that other decisions of this Court afford them adequate defenses to the indictment. Among those on which they place reliance are Appalachian Coals, Inc. v. United States, 288 U.S. 344; Sugar Institute, Inc. v. United States, 297 U.S. 553; Maple Flooring Mfrs. Assn. v. United States, 268 U.S. 563; Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588; Chicago Board of Trade v. United States, 246 U.S. 231; and the American Tobacco and Standard Oil cases, supra. But we do not think that line of cases is apposite. As clearly indicated in the Trenton Potteries case, the American Tobacco and Standard Oil cases have no application to combinations operating directly on prices or price structures. And we are of the opinion that Appalachian Coals, Inc. v. United States, supra , is not in point. In that case certain producers of bituminous coal created an exclusive selling agency for their coal. The agency was to establish standard classifications and sell the coal of its principals at the best prices obtainable. The occasion for the formation of the agency was the existence of certain so-called injurious practices and conditions in the industry. One of these was the problem of distress coal — coal shipped to the market which was unsold at the time of delivery and therefore dumped on the market irrespective of demand. The agency was to promote the systematic study of the marketing and distribution of coal, its demand and consumption; to maintain an inspection and an engineering department to demonstrate to customers the advantages of this type of coal and to promote an extensive advertising campaign; to provide a research department to demonstrate proper and efficient methods of burning coal and thus to aid producers in their competition with substitute fuels; to operate a credit department dealing with the reliability of purchasers; and to make the sale of coal more economical. That agency was also to sell all the coal of its principals at the best prices obtainable and, if all could not be sold, to apportion orders upon a stated basis. And, save for certain stated exceptions, it was to determine the prices at which sales would be made without consultation with its principals. This Court concluded that so far as actual purpose was concerned, the defendant producers were engaged in a fair and open endeavor to aid the industry in a measurable recovery from its plight. And it observed that the plan did not either contemplate or involve the fixing of market prices; that defendants would not be able to fix the price of coal in the consuming markets; that their coal would continue to be subject to active competition. To the contention that the plan would have a tendency to stabilize market prices and to raise them to a higher level, this Court replied (p. 374): The fact that the correction of abuses may tend to stabilize a business, or to produce fairer price levels, does not mean that the abuses should go uncorrected or that cooperative endeavor to correct them necessarily constitutes an unreasonable restraint of trade. The intelligent conduct of commerce through the acquisition of full information of all relevant facts may properly be sought by the cooperation of those engaged in trade, although stabilization of trade and more reasonable prices may be the result. In distinguishing the Trenton Potteries case this Court said (p. 375): In the instant case there is, as we have seen, no intent or power to fix prices, abundant competitive opportunities will exist in all markets where defendants' coal is sold, and nothing has been shown to warrant the conclusion that defendants' plan will have an injurious effect upon competition in these markets. Thus in reality the only essential thing in common between the instant case and the Appalachian Coals case is the presence in each of so-called demoralizing or injurious practices. The methods of dealing with them were quite divergent. In the instant case there were buying programs of distress gasoline which had as their direct purpose and aim the raising and maintenance of spot market prices and of prices to jobbers and consumers in the Mid-Western area, by the elimination of distress gasoline as a market factor. The increase in the spot market prices was to be accomplished by a well organized buying program on that market: regular ascertainment of the amounts of surplus gasoline; assignment of sellers among the buyers; regular purchases at prices which would place and keep a floor under the market. Unlike the plan in the instant case, the plan in the Appalachian Coals case was not designed to operate vis-a-vis the general consuming market and to fix the prices on that market. Furthermore, the effect, if any, of that plan on prices was not only wholly incidental but also highly conjectural. For the plan had not then been put into operation. Hence this Court expressly reserved jurisdiction in the District Court to take further proceedings if, inter alia, in actual operation the plan proved to be an undue restraint upon interstate commerce. And as we have seen it would per se constitute such a restraint if price-fixing were involved. Nor are Maple Flooring Mfrs. Assn. v. United States and Cement Mfrs. Protective Assn. v. United States, supra, at all relevant to the problem at hand. For the systems there under attack were methods of gathering and distributing information respecting business operations. It was noted in those cases that there was not present any agreement for price-fixing. And they were decided, as indicated in the Trenton Potteries case, on the express assumption that any agreement for price-fixing would have been illegal per se. And since that element was lacking, the only issues were whether or not on the precise facts there presented such activities of the combinations constituted unlawful restraints of commerce. A majority of the Court held that they did not. Nor can respondents find sanction in Chicago Board of Trade v. United States, supra , for the buying programs here under attack. That case involved a prohibition on the members of the Chicago Board of Trade from purchasing or offering to purchase between the closing of the session and its opening the next day grains (under a special class of contracts) at a price other than the closing bid. The rule was somewhat akin to rules of an exchange limiting the period of trading, for as stated by this Court the restriction was upon the period of price-making. No attempt was made to show that the purpose or effect of the rule was to raise or depress prices. The rule affected only a small proportion of the commerce in question. And among its effects was the creation of a public market for grains under that special contract class, where prices were determined competitively and openly. Since it was not aimed at price manipulation or the control of the market prices and since it had no appreciable effect on general market prices, the rule survived as a reasonable restraint of trade. There was no deviation from the principle of the Trenton Potteries case in Sugar Institute v. United States, supra . For in that case so-called competitive abuses were not permitted as defenses to violations of the Sherman Act bottomed on a trade association's efforts to create and maintain a uniform price structure. Thus for over forty years this Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act and that no showing of so-called competitive abuses or evils which those agreements were designed to eliminate or alleviate may be interposed as a defense. And we reaffirmed that well-established rule in clear and unequivocal terms in Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458, where we said: Agreements for price maintenance of articles moving in interstate commerce are, without more, unreasonable restraints within the meaning of the Sherman Act because they eliminate competition, United States v. Trenton Potteries Co., 273 U.S. 392, and agreements which create potential power for such price maintenance exhibited by its actual exertion for that purpose are in themselves unlawful restraints within the meaning of the Sherman Act, . . . Therefore the sole remaining question on this phase of the case is the applicability of the rule of the Trenton Potteries case to these facts. Respondents seek to distinguish the Trenton Potteries case from the instant one. They assert that in that case the parties substituted an agreed-on price for one determined by competition; that the defendants there had the power and purpose to suppress the play of competition in the determination of the market price; and therefore that the controlling factor in that decision was the destruction of market competition, not whether prices were higher or lower, reasonable or unreasonable. Respondents contend that in the instant case there was no elimination in the spot tank car market of competition which prevented the prices in that market from being made by the play of competition in sales between independent refiners and their jobber and consumer customers; that during the buying programs those prices were in fact determined by such competition; that the purchases under those programs were closely related to or dependent on the spot market prices; that there was no evidence that the purchases of distress gasoline under those programs had any effect on the competitive market price beyond that flowing from the removal of a competitive evil; and that if respondents had tried to do more than free competition from the effect of distress gasoline and to set an arbitrary non-competitive price through their purchases, they would have been without power to do so. But we do not deem those distinctions material. In the first place, there was abundant evidence that the combination had the purpose to raise prices. And likewise, there was ample evidence that the buying programs at least contributed to the price rise and the stability of the spot markets, and to increases in the price of gasoline sold in the Mid-Western area during the indictment period. That other factors also may have contributed to that rise and stability of the markets is immaterial. For in any such market movement, forces other than the purchasing power of the buyers normally would contribute to the price rise and the market stability. So far as cause and effect are concerned it is sufficient in this type of case if the buying programs of the combination resulted in a price rise and market stability which but for them would not have happened. For this reason the charge to the jury that the buying programs must have caused the price rise and its continuance was more favorable to respondents than they could have required. Proof that there was a conspiracy, that its purpose was to raise prices, and that it caused or contributed to a price rise is proof of the actual consummation or execution of a conspiracy under § 1 of the Sherman Act. Secondly, the fact that sales on the spot markets were still governed by some competition is of no consequence. For it is indisputable that that competition was restricted through the removal by respondents of a part of the supply which but for the buying programs would have been a factor in determining the going prices on those markets. But the vice of the conspiracy was not merely the restriction of supply of gasoline by removal of a surplus. As we have said, this was a well organized program. The timing and strategic placement of the buying orders for distress gasoline played an important and significant role. Buying orders were carefully placed so as to remove the distress gasoline from weak hands. Purchases were timed. Sellers were assigned to the buyers so that regular outlets for distress gasoline would be available. The whole scheme was carefully planned and executed to the end that distress gasoline would not overhang the markets and depress them at any time. And as a result of the payment of fair going market prices a floor was placed and kept under the spot markets. Prices rose and jobbers and consumers in the Mid-Western area paid more for their gasoline than they would have paid but for the conspiracy. Competition was not eliminated from the markets; but it was clearly curtailed, since restriction of the supply of gasoline, the timing and placement of the purchases under the buying programs and the placing of a floor under the spot markets obviously reduced the play of the forces of supply and demand. The elimination of so-called competitive evils is no legal justification for such buying programs. The elimination of such conditions was sought primarily for its effect on the price structures. Fairer competitive prices, it is claimed, resulted when distress gasoline was removed from the market. But such defense is typical of the protestations usually made in price-fixing cases. Ruinous competition, financial disaster, evils of price cutting and the like appear throughout our history as ostensible justifications for price-fixing. If the so-called competitive abuses were to be appraised here, the reasonableness of prices would necessarily become an issue in every price-fixing case. In that event the Sherman Act would soon be emasculated; its philosophy would be supplanted by one which is wholly alien to a system of free competition; it would not be the charter of freedom which its framers intended. The reasonableness of prices has no constancy due to the dynamic quality of business facts underlying price structures. Those who fixed reasonable prices today would perpetuate unreasonable prices tomorrow, since those prices would not be subject to continuous administrative supervision and readjustment in light of changed conditions. Those who controlled the prices would control or effectively dominate the market. And those who were in that strategic position would have it in their power to destroy or drastically impair the competitive system. But the thrust of the rule is deeper and reaches more than monopoly power. Any combination which tampers with price structures is engaged in an unlawful activity. Even though the members of the price-fixing group were in no position to control the market, to the extent that they raised, lowered, or stabilized prices they would be directly interfering with the free play of market forces. The Act places all such schemes beyond the pale and protects that vital part of our economy against any degree of interference. Congress has not left with us the determination of whether or not particular price-fixing schemes are wise or unwise, healthy or destructive. It has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies. It has no more allowed genuine or fancied competitive abuses as a legal justification for such schemes than it has the good intentions of the members of the combination. If such a shift is to be made, it must be done by the Congress. Certainly Congress has not left us with any such choice. Nor has the Act created or authorized the creation of any special exception in favor of the oil industry. Whatever may be its peculiar problems and characteristics, the Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike. There was accordingly no error in the refusal to charge that in order to convict the jury must find that the resultant prices were raised and maintained at high, arbitrary and non-competitive levels. The charge in the indictment to that effect was surplusage. Nor is it important that the prices paid by the combination were not fixed in the sense that they were uniform and inflexible. Price-fixing as used in the Trenton Potteries case has no such limited meaning. An agreement to pay or charge rigid, uniform prices would be an illegal agreement under the Sherman Act. But so would agreements to raise or lower prices whatever machinery for price-fixing was used. That price-fixing includes more than the mere establishment of uniform prices is clearly evident from the Trenton Potteries case itself, where this Court noted with approval Swift & Co. v. United States, 196 U.S. 375, in which a decree was affirmed which restrained a combination from raising or lowering prices or fixing uniform prices at which meats will be sold. Hence, prices are fixed within the meaning of the Trenton Potteries case if the range within which purchases or sales will be made is agreed upon, if the prices paid or charged are to be at a certain level or on ascending or descending scales, if they are to be uniform, or if by various formulae they are related to the market prices. They are fixed because they are agreed upon. And the fact that, as here, they are fixed at the fair going market price is immaterial. For purchases at or under the market are one species of price-fixing. In this case, the result was to place a floor under the market — a floor which served the function of increasing the stability and firmness of market prices. That was repeatedly characterized in this case as stabilization. But in terms of market operations stabilization is but one form of manipulation. And market manipulation in its various manifestations is implicitly an artificial stimulus applied to (or at times a brake on) market prices, a force which distorts those prices, a factor which prevents the determination of those prices by free competition alone. Respondents, however, argue that there was no correlation between the amount of gasoline which the major companies were buying and the trend of prices on the spot markets. They point to the fact that such purchasing was lightest during the period of the market rise in the spring of 1935, and heaviest in the summer and early fall of 1936 when the prices declined; and that it decreased later in 1936 when the prices rose. But those facts do not militate against the conclusion that these buying programs were a species of price-fixing or manipulation. Rather they are wholly consistent with the maintenance of a floor under the market or a stabilization operation of this type, since the need for purchases under such a program might well decrease as prices rose and increase as prices declined. As we have indicated, the machinery employed by a combination for price-fixing is immaterial. Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se. Where the machinery for price-fixing is an agreement on the prices to be charged or paid for the commodity in the interstate or foreign channels of trade, the power to fix prices exists if the combination has control of a substantial part of the commerce in that commodity. Where the means for price-fixing are purchases or sales of the commodity in a market operation or, as here, purchases of a part of the supply of the commodity for the purpose of keeping it from having a depressive effect on the markets, such power may be found to exist though the combination does not control a substantial part of the commodity. In such a case that power may be established if as a result of market conditions, the resources available to the combinations, the timing and the strategic placement of orders and the like, effective means are at hand to accomplish the desired objective. But there may be effective influence over the market though the group in question does not control it. Price-fixing agreements may have utility to members of the group though the power possessed or exerted falls far short of domination and control. Monopoly power United States v. Patten, 226 U.S. 525) is not the only power which the Act strikes down, as we have said. Proof that a combination was formed for the purpose of fixing prices and that it caused them to be fixed or contributed to that result is proof of the completion of a price-fixing conspiracy under § 1 of the Act. [59] The indictment in this case charged that this combination had that purpose and effect. And there was abundant evidence to support it. Hence the existence of power on the part of members of the combination to fix prices was but a conclusion from the finding that the buying programs caused or contributed to the rise and stability of prices. As to knowledge or acquiescence of officers of the Federal Government little need be said. The fact that Congress through utilization of the precise methods here employed could seek to reach the same objectives sought by respondents does not mean that respondents or any other group may do so without specific Congressional authority. Admittedly no approval of the buying programs was obtained under the National Industrial Recovery Act prior to its termination on June 16, 1935, (§ 2 (c)) which would give immunity to respondents from prosecution under the Sherman Act. Though employees of the government may have known of those programs and winked at then or tacitly approved them, no immunity would have thereby been obtained. For Congress had specified the precise manner and method of securing immunity. None other would suffice. Otherwise national policy on such grave and important issues as this would be determined not by Congress nor by those to whom Congress had delegated authority but by virtual volunteers. The method adopted by Congress for alleviating the penalties of the Sherman Act through approval by designated public representatives [60] would be supplanted by a foreign system. But even had approval been obtained for the buying programs, that approval would not have survived the expiration in June 1935 of the Act which was the source of that approval. As we have seen, the buying program continued unabated during the balance of 1935 and far into 1936. As we said in United States v. Borden Co., 308 U.S. 188, 202, A conspiracy thus continued is in effect renewed during each day of its continuance. Hence, approval or knowledge and acquiescence of federal authorities prior to June 1935 could have no relevancy to respondents' activities subsequent thereto. The fact that the buying programs may have been consistent with the general objectives and ends sought to be obtained under the National Industrial Recovery Act is likewise irrelevant to the legality under the Sherman Act of respondents' activities either prior to or after June 1935. For as we have seen price-fixing combinations which lack Congressional sanction are illegal per se; they are not evaluated in terms of their purpose, aim or effect in the elimination of so-called competitive evils. Only in the event that they were, would such considerations have been relevant. Accordingly we conclude that the Circuit Court of Appeals erred in reversing the judgments on this ground. A fortiori the position taken by respondents in their cross petition that they were entitled to directed verdicts of acquittal is untenable.",charge to the jury
+428,103352,2,2,"What we have said disposes of most of the errors alleged in exclusion of evidence. The offers of proof covering the background and operation of the National Industrial Recovery Act and the Petroleum Code, the condition of the oil industry, the alleged encouragement, cooperation and acquiescence of the Federal Petroleum Administration in the buying programs and the like were properly excluded, insofar as they bore on the nature of the restraint and the purpose or end sought to be attained. For as we have seen the reasonableness of the restraint was not properly an issue in the case. There were, however, offers of proof alleged to be relevant to the cause of the price rise and the subsequent stability of the markets during the period in question. In addition to the foregoing offers, respondents sought to show that the presence of hot oil and hot gasoline had greatly depressed the market from 1932 to early in 1935 when the Connally Act became effective, except for one short period from October to December 1934; that beginning in October 1934 shipment of hot oil from East Texas into interstate commerce had for the first time been effectively controlled; that within a period of six weeks thereafter the tank car spot market rose 1 1/2 ¢ — an amount corresponding to the price rise from March to June 1935; that the various factors which primarily affect price were almost precisely the same in the fall of 1934 as they were in the spring of 1935; that the price of gasoline had borne a constant relationship to the price of crude oil from January 1918 to October 1933 — that relationship disappearing when the price of hot oil fell below legal crude but reappearing in October 1934, and again in March 1935, when hot oil was eliminated; that gasoline prices were more depressed than the prices of other commodities and the cost of living in 1933 and 1934, and recovered and rose less than such other prices and the cost of living in 1935 and 1936. We think there was no reversible error in exclusion of these various offers. To the extent that they were designed to show that respondents by their buying programs had not raised the spot market prices to an artificial and non-competitive level, these offers of proof were properly denied as immaterial. For, as we have said, the reasonableness of the prices and the fact that respondents' activities merely removed from the market the depressive effect of distress gasoline were not relevant to the issues. And to the extent that these offers of proof were aimed at establishing and evaluating other contributory causes for the price rise and market stability during the indictment period, they were not improperly denied. In the first place, the record is replete with evidence showing the condition of the oil industry at the time of the adoption of the code and during the code period. There was ample testimony bearing on the other causal factors which respondents contend were primarily responsible for the price rise and market stability during the indictment period. Much of the refused testimony was merely cumulative in nature. A trial court has wide discretion in a situation of that kind. The trial lasted about three and a half months. Terminal points are necessary even in a conspiracy trial involving intricate business facts and legal issues. In the second place, the offer to show the market conditions late in 1934 when hot oil was temporarily under control was not improperly denied. There was substantial evidence in the record to demonstrate the depressive market effect of hot oil. While the offer was not wholly irrelevant to the issues, it was clearly collateral. The trial court has a wide range for discretion in the exclusion of such evidence. See Golden Reward Mining Co. v. Buxton Mining Co., 97 F. 413, 416-417; Chesterfield Mfg. Co. v. Leota Cotton Mills, 194 F. 358, 359. Admission of testimony showing the market conditions late in 1934 would have opened an inquiry into causal factors as involved and interrelated as those present during the indictment period. That might have confused rather than enlightened the jury. In any event it would not have eliminated the buying programs as contributory causes to the market rise and stability in 1935 and 1936. And it would have prolonged the inquiry and protracted the trial. As once stated by Mr. Justice Holmes, one objection to the introduction of collateral issues is a purely practical one, a concession to the shortness of life. Reeve v. Dennett, 145 Mass. 23, 28; 11 N.E. 938, 944. And see Union Stock Yard & Transit Co. v. United States, 308 U.S. 213, 223-224. Similar reasons sustain the action of the trial court in limiting the inquiry into general economic conditions antedating and during the indictment period. In conclusion, we do not think that there was an abuse of discretion by the trial court in the exclusion of the proffered evidence. A great mass of evidence was received, the range of inquiry was wide, the factual questions relating to the oil industry and respondents' activities were intricate and involved. In such a case a new trial will not be ordered for alleged errors in exclusion of evidence where matters of substance are not affected. See United States v. Trenton Potteries Co., supra, p. 404.",respondents' offers of proof.
+429,103352,1,6,"The Circuit Court of Appeals held that the trial court committed prejudicial error in refusing to permit defense counsel to inspect the transcript of grand jury testimony used to refresh the recollection of certain witnesses called by the government. Respondents here urge that the use made of the grand jury transcript was error because (1) they were denied the right to inspect it, (2) it had not been properly authenticated, (3) the reading of the grand jury testimony must have led the jury to conclude that it was affirmative testimony, and (4) such testimony was not given contemporaneously with the occurrences to which it was related. And in all respects, respondents contend that such use of the grand jury testimony was highly prejudicial. There were about 90 instances when the government used that testimony. In practically all those cases, the witnesses were employees or representatives of respondents or former defendants, or were closely associated with them. That most of them were hostile witnesses — evasive and reluctant to testify — clearly appears from a reading of their entire testimony. Each of those witnesses had testified before the grand jury which returned the indictment in the case. At times counsel for the government would state to the court that he was surprised at the witness' answer to a question and that it contradicted testimony before the grand jury. More frequently counsel would ask the witness if his memory could be refreshed by his grand jury testimony. During the first part of the trial government counsel apparently read some grand jury testimony to two witnesses from his notes. After objection had been made, the court instructed counsel to use the transcript. Soon thereafter, and early in the trial, the court adopted the practice of inspecting the transcript and itself seeking to refresh the witness' recollection by reading from his prior testimony. At no time was the transcript shown to the witness. At all times respondents appropriately objected to the practice. Throughout the trial the stated single reason for the use of such prior testimony was the refreshment of the witness' recollection. Counsel for the defense were ever alert to denounce the practice, especially when it appeared that government counsel might seek to impeach the witness. In such cases the court normally would sustain the objection or admonish government counsel; or the question and answer would be stricken. In many instances where such testimony was used, the incident ended by the witness merely saying that his recollection had not been refreshed. In case it had been, he would state what his present recollection was. Only in about one-sixth of the instances was any inconsistency in testimony developed. In the balance, recollection was either not refreshed or the testimony which had been given was wholly or substantially consistent with the previous grand jury testimony. During the trial the court told the jury: I have used some of the testimony and read some of it for the purpose only of refreshing the witnesses' memories, and many times I have indicated that there was no conflict or nothing inconsistent between the testimony of the witness and the transcript of testimony. The only reason we use this transcript of testimony of each witness before the Grand Jury is to, if we can, refresh their memories so as to enable them to recall correctly what the fact is. And the court made a similar statement in its charge to the jury. As in case of leading questions, St. Clair v. United States, 154 U.S. 134, 150, such use of grand jury testimony for the purpose of refreshing the recollection of a witness rests in the sound discretion of the trial judge. See Di Carlo v. United States, 6 F.2d 364, 367-368; Bosselman v. United States, 239 F. 82, 85; Felder v. United States, 9 F.2d 872. He sees the witness, can appraise his hostility, recalcitrance, and evasiveness or his need for some refreshing material, and can determine whether or not under all the circumstances the use of grand jury minutes is necessary or appropriate for refreshing his recollection. As once stated by Judge Hough, The bald fact that the memory refreshing words are found in the records of a grand jury is not a valid objection. Felder v. United States, supra, p. 874. Normally, of course, the material so used must be shown to opposing counsel upon demand, if it is handed to the witness. Morris v. United States, 149 F. 123, 126; Lennon v. United States, 20 F.2d 490, 493-494; Wigmore, Evidence (2d ed.), § 762. And the reasons are that only in that way can opposing counsel avoid the risks of imposition on and improper communication with the witness, and detect circumstances not appearing on the surface and expose all that detracts from the weight of testimony. See 2 Wigmore, supra, p. 42. The first of these reasons has no relevancy here. And as to the second, no iron-clad rule requires that opposing counsel be shown the grand jury transcript where it is not shown the witness and where some appropriate procedure is adopted to prevent its improper use. That again is a matter which rests in the sound discretion of the court. Grand jury testimony is ordinarily confidential. See Wigmore, supra, § 2362. But after the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it. See Metzler v. United States, 64 F.2d 203, 206. Since there is no inexorable rule which under all circumstances entitles the witness and his counsel to see the prior statement made under oath and since in this case the court itself examined and thus directly controlled the use of the grand jury testimony, we cannot say that the refusal to make it available to counsel for the defense is per se reversible error. To hold that it was error in the instances here under review would be to find abuse of discretion, where in fact we conclude from the entire record on this phase of the case that the judge supervised the procedure with commendable fairness. In sum, the selective use of this testimony and the precautions taken by the trial judge make it impossible for us to say that he transcended the limits of sound discretion in permitting it to be used by the government without making it available to the defense. If the record showed that the refreshing material was deliberately used for purposes not material to the issues but to arouse the passions of the jurors, so that an objective appraisal of the evidence was unlikely, there would be reversible error. Likewise there would be error where under the pretext of refreshing a witness' recollection, the prior testimony was introduced as evidence. Rosenthal v. United States, 248 F. 684, 686. But here the grand jury testimony was used simply to refresh the recollection on material facts, New York & Colorado Mining Syndicate & Co. v. Fraser, 130 U.S. 611, not as independent affirmative evidence. Bates v. Preble, 151 U.S. 149. Furthermore, it was not used for impeachment purposes; and the content of this refreshing material related solely to conversations and events relevant to the formation and execution of the buying programs. In addition, it clearly appears that the use of this material was not prejudicial. So far as the subject matter of the inquiry is concerned, that prior testimony was either cumulative or dealt only with the minutiae of the conspiracy. The record minus that testimony clearly establishes all the facts necessary for proof of the illegal conspiracy. No portion of it was dependent on the minor facts concerning which the memory of these witnesses was refreshed. [61] Hence, the situation is vastly different from those cases where essential ingredients of the crime were dependent on testimony elicited in that manner or where the evidence of guilt hung in delicate balance if that testimony was deleted. See Little v. United States, 93 F.2d 401; Putnam v. United States, 162 U.S. 687. Hence assuming, arguendo, that there was error in the use of the prior testimony, to order a new trial would be to violate the standards of § 269 of the Judicial Code (28 U.S.C. § 391), since the substantial rights of respondents were not affected. There are no vested individual rights in the ordinary rules of evidence; their observance should not be reduced to an idle ceremony. Putnam v. United States, supra , held it was prejudicial error to use grand jury minutes to refresh the memory of a witness unless that testimony was contemporaneous with the occurrences as to which the witness was testifying. There the testimony before the grand jury was more than four months after the occurrence. This Court held that because of that lapse of time the testimony was not contemporaneous. Whatever may be said of the Putnam case on the merits (see Wigmore, supra, § 761) it does not establish an inflexible four-months' period of limitation. There the event was a single isolated conversation, most damaging to the defendant. Here there was a continuing conspiracy extending at least up to the period when the witnesses were testifying before the grand jury. Much of the testimony related to events a year or more old. But in the main those matters were woven into the conspiracy, related to events in which the witness actively participated, concerned the regular business matters with which he was familiar, pertained to his regular employment, or constituted admissions against interest. On these facts we do not think there was an abuse of discretion on the part of the trial judge in permitting the testimony to be used. Measured by the test of whether or not the prior statement made under oath was reasonably calculated to revive the witness' present recollection within the rule of the Putnam case, there certainly cannot be said to have been error as a matter of law. Respondents say that the manner employed in refreshing the recollection of the witnesses was bound to inculcate in the minds of the jurors the feeling that the witnesses were testifying falsely or were concealing the truth. But here again, we find no reversible error. The trial judge, as we have said, was alert to stop impeachment. And in view of the obvious hostility and evasiveness of most of those witnesses, we cannot say that the judge transcended the bounds of discretion in permitting their memories to be refreshed in this manner. As is true of most that takes place in a trial, the right result is a matter of degree, and depends upon the sense of measure of the judge. See United States v. Freundlich, 95 F.2d 376, 379.",Use of the Grand Jury Transcript.
+430,103352,1,7,"Respondents complain of certain statements made to the jury by government counsel. Their objections are that government counsel (1) appealed to class prejudice; and (2) requested a conviction regardless of the evidence because the prosecution was convinced of respondents' guilt and because a conviction was the wish and the desire of the highest officials in the Government of the United States. Under the first of these, they point to the opening statement that this conspiracy involved some of the biggest men in the country — big in the sense of controlling vast volumes of financial influence; and that it is a terrible thing that a group of influential, wealthy millionaires or billionaires should take over the power, take over the control, the power to make prices. At the close of those opening remarks and on objection of defense counsel the court counselled the jury that any reference to the wealth of any of the defendants is entirely immaterial. A man of wealth has just as much standing in a court as a man that is poverty stricken. But respondents complain that in the closing arguments the same matter was referred to again as follows: A hundred lawyers employed — the very cream of the American Bar, the very best legal talent that these people can obtain — every one of them working night and day with suggestions as to how the red herring can be drawn across the clear cut issue in this case; that it should not be taken for granted that these more powerful people are above the law and can't be reached and can't be brought to book; that the fear of corporate power in combination is part of the American tradition as illustrated by a speech made in 1873 by a Wisconsin judge, who said: There is looming up a new and dark power . . . The accumulation of individual wealth seems to be greater than it ever has been since the downfall of the Roman Empire. The enterprises of the country are . . . coldly marching, not for economic conquests only, but for political power . . . money is taking the field as an organized power. The question will arise . . . which shall rule, wealth or man? Which shall lead, money or intellect? Who shall fill the public stations, educated and patriotic free men, or the futile serfs of corporate capital? But as to these statements no objection was made at the time by defense counsel. There were other such references e.g., malefactors of great wealth, eager, grasping men or corporations who take the law into their own hands . . . without any consideration for the under-dog or the poor man . . . We are going to stop it, as our forefathers stopped it before us and left this country with us as it is now, or we are going down into ruin as did the Roman Empire. Counsel for the defense objected to these statements as improper and prejudicial. The court overruled the objections stating it would deal with the matter in its charge to the jury. In its charge the court warned against convicting a corporation solely because of its size or the extent of its business; that it was your duty to give these corporations the same impartial consideration as an individual or small corporation would receive; and instructed the jurors not to be concerned with the financial condition of any of these defendants. Whether a man be rich or poor, he is entitled to the same consideration in this Court. On this phase of the matter several observations are pertinent. In the first place, counsel for the defense cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time on the point that the comments to the jury were improper and prejudicial. See Crumpton v. United States, 138 U.S. 361, 364. Of course appellate courts in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings. See United States v. Atkinson, 297 U.S. 157, 160. But as we point out hereafter, the exceptional circumstances which call for an invocation of that rule are not present here. discuss corporate power, its use and abuse, so long as those statements are relevant to the issues at hand. For that subject is material to the philosophy of that Act. Its purposes and objectives are clearly legitimate subjects for discussion before the jury. But, thirdly, appeals to class prejudice are highly improper and cannot be condoned and trial courts should ever be alert to prevent them. Some of the statements to which respondents now object fall in this class. They were, we think, undignified and intemperate. They do not comport with the standards of propriety to be expected of the prosecutor. But it is quite another thing to say that these statements constituted prejudicial error. In the first place, it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately. In the second place, this was not a weak case as was Berger v. United States, 295 U.S. 78, where this Court held that prejudice to the accused was so highly probable as a result of the prosecutor's improper conduct that we are not justified in assuming its non-existence. (p. 89.) Cf. New York Central R. Co. v. Johnson, 279 U.S. 310. Of course, appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice. Under the second of these objections, respondents complain of the plea to the jury not to let your Government and the United States and its citizens and society down, and that government counsel believe to the bottom of their hearts in the justice of the cause that they espouse here. No objection at that time was made by defense counsel. But they did object at the trial to the statements by government counsel, . . . do you honestly think that these boys here (government counsel) . . . would be trying to convict these men unless that was the wish and the desire of the highest officials in the government of the United States?; You don't think the government of the United States would allow four or five lawyers to come out here and prosecute this case against them, against their wishes, or that the Secretary of the Department of the Interior would allow us to do it, if he didn't want it done? The court overruled the objections stating, I suppose we have a right to assume that they are here under the instructions of the Attorney General of the United States. Respondents further complain of the statements that the evidence is so overwhelming and overpowering that it doesn't even leave the trace or the shadow of a doubt; that if you are going to say they are not guilty on this evidence, then you take the responsibility, I won't; you get an alibi, I won't; that the hundreds of thousands of dollars spent by the government in trying to get before you the facts should not be thrown to the winds nor should these men go clear. But no objection was made at the time by defense counsel. As respects the statement that it was the wish and the desire of the highest officials in the government to have defendants convicted, some background should be given. This came near the end of the closing arguments. In the opening statement, during the trial, and in the closing arguments the defense continuously emphasized the knowledge and acquiescence by government officials of the buying programs. As we have noted, that was one of the main lines of defense. From the beginning of the trial to the end, the defense sought to prove, not official approval in the legal sense, but official acquiescence or at least condonation. Bald statements were made that respondents were conducting a program which resulted from the instigation and inducement of the Government itself; after the Schechter case they endeavored to stabilize marketing practices at the instance of officials of the Oil Administration; what was done by these defendants was done for the purpose of accomplishing the objectives and purposes of the National Industrial Recovery Act, and was undertaken at the request and pursuant to the authorization of the Secretary of the Interior, Mr. Ickes, the Administrator of the Petroleum Code; respondents acted to carry out the purposes and objectives sought by the Government and initiated by the Government . . . They were objectives defined by the President of the United States. They were purposes, the accomplishment of which the Secretary of the Interior had been charged, under his oath, to seek to obtain; with all this backing and all this help from the government, and all this urging from the government, are you going to brand these men as just selfish individuals? On innumerable instances the impression was sought to be conveyed by subtle intimation, inference or suggestion that responsibility for these buying programs should be placed on the shoulders of high government officials. Government counsel accordingly justified his statement on the grounds that it denied what the defense had continuously stated, viz., that the buying programs were conducted with the consent and approval of the Secretary of the Interior. At a subsequent point in the closing arguments government counsel again referred to the matter. On objection of defense counsel he withdrew the statement. And the court instructed the jury to disregard it, saying This prosecution was commenced at the instigation of the Attorney General of the United States. In view of these various circumstances we do not think that the above statements were prejudicial. Standing by themselves they appear to be highly improper. Even as a rebuttal to the defense which had been interposed throughout the trial, they overstep the bounds. But in view of the justification which respondents sought to establish for their acts, the subject matter of these statements was certainly relevant. The fact that government counsel transgressed in his rebuttal certainly cannot be said to constitute prejudicial error. For a reading of the entire argument before the jury leads to the firm conviction that the comments which respondents now rely on for their assertions of error were isolated, casual episodes in a long summation of over 200 printed pages and not at all reflective of the quality of the argument as a whole. Respondents further urge as prejudicial error the assertions by government counsel of personal knowledge in contradiction of the record for the purpose of discrediting an important defense witness. The statement of government counsel was that in 1935 and 1936, you couldn't get a rowboat up the Mississippi River, north of Winona. Respondents contend that testimony as to navigability of that river was vitally material as establishing such outside competition as would have prevented them from raising prices to artificial and non-competitive levels. But such testimony was wholly irrelevant, since the reasonableness of the prices was not properly an issue in the case. Furthermore, when objection was made to the remark, counsel withdrew it and the jury was instructed to disregard it. That must be deemed to have cured the error if it could be considered such. As stated in Dunlop v. United States, 165 U.S. 486, 498, If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand.",Arguments to the Jury by Government Counsel.
+431,103352,1,8,"Respondents contend that the trial court committed reversible error in granting new trials to some defendants and denying them to respondents. The court charged the jury that it could convict any of the defendants found to have been members of the combination and that it need not convict all or none. As has been noted, the jury found sixteen corporations and thirty individuals guilty. Thereafter the court discharged one corporation and ten individuals, and granted new trials to three corporations and fifteen individuals. Such action left the verdict standing as to only twelve corporations and five individuals. The trial court gave as its reason for granting some of the defendants a new trial its belief that they had not had an adequate separate consideration of their defense, in view of the fact that as to some of them direct evidence of participation was lacking or slight, and the circumstantial evidence viewed as a whole may well have obscured other facts and circumstances shown, in some cases, to be highly suggestive of innocence, and in all cases entitled to be considered and weighed. United States v. Standard Oil Co., (Indiana), 23 F. Supp. 937, 939. In denying the motions of respondents for a new trial it stated (p. 944) that there was evidence to go to the jury and to sustain its verdict as to every essential charge in the indictment as to them. [62] Respondents' argument runs as follows: The court charged the jury that it was the purpose and the power of the combination to raise prices which were material. Hence the fact that the jury found that the entire group possessed such power does not necessarily mean that the jury would have found that respondents acting alone possessed such power. Since the jury did not consider that issue, it is argued that denial of a new trial to respondents violates their constitutional right to a jury trial. And in support of their contention, respondents insist that Standard of Indiana alone (one of the defendants granted a new trial) possessed such power as would make it impossible for them to raise prices without its agreement and cooperation. Respondents' argument does not focus sharply the basic and essential elements of the offense and of the instructions to the jury. As we have stated above, the offense charged in this indictment was proved once it was established that any of the defendants conspired to fix prices through the buying programs and that those programs caused or contributed to the price rise. Power of the combination to fix prices was therefore but a conclusion from the fact that the combination did fix prices. Hence in that posture of the case, the issue here is whether or not the finding of the jury that the buying programs affected prices was necessarily dependent on the participation in those programs of all who were convicted. Obviously it was not. The order granting new trials in no manner impeached or questioned the evidence as to the total spot market purchases made by all companies (whether defendants, co-conspirators or others). Cf. Bartkus v. United States, 21 F.2d 425. In their efforts to place a floor under the spot markets respondents assuredly received benefits and assistance from the purchases made by other companies. And the amount of benefit and assistance received did not necessarily depend on whether or not those other companies were co-conspirators. Market manipulators commonly obtain assistance from the activities of the innocent as well as from those of their allies. The fact that they may capitalize on the purchases of others is no more significant than the fact that they may gain direct or collateral benefits from market trends, bullish factors or fortuitous circumstances. And the mere fact that those circumstances might have changed and that Standard of Indiana, say, might have substantially impaired the effect of the buying programs on prices by a change in its retail policies was as irrelevant as was the chance that the Connally Act might have been repealed. The effect of the concerted activities was not rebutted by the fact that changes in events might have destroyed that effect. Nor did the case against respondents automatically fall when three of the corporate defendants [63] were awarded a new trial. We have here a situation quite different from that where the participation of those to whom a new trial was granted or against whom the judgment of conviction was reversed was necessary for the existence of the crime charged. See Gebardi v. United States, 287 U.S. 112; Morrison v. California, 291 U.S. 82; King v. Plummer [1902], 2 K.B. 339. In this case the crime was not indivisible (cf. Queen v. Gompertz, 9 A. & E. (N.S.) 824; Feder v. United States, 257 F. 694) in the sense that the existence of a conspiracy under the Sherman Act was necessarily dependent on the cooperation of the other defendants with respondents. Nor was the case submitted to the jury on the assumption that the participation of any of the corporations which were granted new trials was indispensable to the finding of a conspiracy among the rest. As we have seen, the court charged that the jury could convict any of the defendants found to have been members of the combination and that it need not convict all or none. It was the existence of a combination and the participation in it of all or some of the defendants which were important, not the identity of each and every participant. A conspiracy under the Sherman Act may embrace two or more individuals or corporations. Conviction of some need not await the apprehension and conviction of all. The erroneous conviction of one does not necessarily rebut the finding that the others participated. The theory of the charge to the jury was not that the defendants must be convicted, if at all, as a body; rather the issue of guilt was distributive; the identity of all the co-conspirators was irrelevant. In a Sherman Act case, as in other conspiracy cases, the grant of a new trial to some defendants and its denial to others is not per se reversible error. After the jury's verdict has been set aside as respects some of the alleged co-conspirators, the remaining ones cannot seize on that action as grounds for the granting of a new trial to them, unless they can establish that such action was so clearly prejudicial to them that the denial of their motions constituted a plain abuse of discretion. See Dufour v. United States, 37 App. D.C. 497, 510-511; State v. Christianson, 131 Minn. 276, 280; 154 N.W. 1095; Commonwealth v. Bruno, 324 Pa. 236, 248; 188 A. 320; People v. Kuland, 266 N.Y. 1; 193 N.E. 439; Browne v. United States, 145 F. 1. There is a complete lack of any showing of abuse of discretion here, for no prejudice has been established. Hence this case falls within the well-established rule that neither this Court nor the Circuit Court of Appeals will review the action of a federal trial court in granting or denying a motion for a new trial for error of fact, since such action is a matter within the discretion of the trial court. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474. Certain exceptions have been noted, such as instances where the trial court has erroneously excluded from consideration matters which were appropriate to a decision on the motion. Fairmount Glass Works v. Cub Fork Coal Co., supra, p. 483. But there are no such circumstances here. No iota of evidence has been adduced that the trial court in denying respondents' motions failed to take into consideration the effect of the buying programs on gasoline prices in the Mid-Western area. In fact it seems apparent that the trial court considered that issue and ruled thereon adversely to respondents. It concluded in substance that whoever may have been all the members of the conspiracy, there was ample evidence to go to the jury on the nature and effect of these programs. Certainly, denial of a motion for a new trial on the grounds that the verdict was against the weight of the evidence would not be subject to review. Moore v. United States, 150 U.S. 57, 61-62; J.W. Bishop Co. v. Shelhorse, 141 F. 643, 648; O'Donnell v. New York Transp. Co., 187 F. 109, 110. In substance no more than that is involved here.",Granting of New Trials to Some Defendants.
+432,103352,1,9,"By their cross petition respondents contend that there was a fatal variance between the agreement charged in the indictment and the agreement proved, with a consequent violation of respondents' rights under the Sixth Amendment. As we have noted, certain trade journals were made defendants. The indictment charged that they were the chief agencies and instrumentalities through which the illegally raised prices affected prices paid for gasoline in the Mid-Western area; that they knowingly published and circulated as such price quotations the wrongfully and artificially raised and fixed prices for gasoline paid by defendants in the buying programs, while representing the price quotations published by them to be gasoline prices prevailing in spot sales to jobbers in tank car lots and while knowing and intending them to be relied on as such by jobbers and to be made the basis of prices to jobbers. At the close of the government's case the indictment was dismissed, on motion of the government, as against all trade journal defendants who went to trial. This was clearly proper, as the evidence adduced exculpated them from any wrongdoing. But respondents contend that the device charged in the indictment was one by which respondents were to pay higher than the actual spot market prices for their purchases and then to substitute in the trade journal quotations such prices for the lower prices actually paid by jobbers in spot market sales. Since there was failure of proof on this point of falsification, it is argued that there was a variance. For, according to respondents, that feature was an integral and essential part of the plan as charged. We agree with the Circuit Court of Appeals that there was no variance. Analysis of the indictment which we have set forth, supra, pp. 166-170, makes it clear that the charge against respondents was separate from and independent of the charge against the trade journals and that the allegations against those journals constituted not the only means by which the conspiracy was to be effectuated but only one of several means ( supra, pp. 167-168). In effect, those charges in the indictment sought to connect the trade journals with the conspiracy as aiders and abettors. On the other hand, the gist of the indictment charged a conspiracy by defendants (1) to raise and fix the spot market prices and (2) thereby to raise and fix the prices in the Mid-Western area. So far as means and methods of accomplishing those objectives were concerned, the charge of falsification of the trade journal quotations was as unessential as was the charge, likewise unproved, that defendants caused the independent refiners to curtail their production. The purpose and effect of the buying programs in raising and fixing prices were in no way made dependent on the utilization of fraudulent trade journal quotations. As charged, the trade journals were the chief instrumentalities by which the spot market prices were converted into prices in the Mid-Western area. Hence under this indictment they were wholly effective for respondents' purposes, though they were innocent and though their quotations were not falsified as charged. A variation between the means charged and the means utilized is not fatal. And where an indictment charges various means by which the conspiracy is effectuated, not all of them need be proved. See Nash v. United States, 229 U.S. 373, 380. Cf. Boyle v. United States, 259 F. 803, 805.",Variance.
+433,103352,1,10,"The Sixth Amendment provides that the accused shall be tried by an impartial jury of the State and district wherein the crime shall have been committed. Respondents contend that the district court for the Western District of Wisconsin had no jurisdiction or venue to try them since the crime was not committed in that district. The Circuit Court of Appeals held to the contrary, one judge dissenting. As we have noted, the indictment charged that the defendants (1) conspired together to raise and fix the prices on the spot markets; (2) raised, fixed, and maintained those prices at artificially high and non-competitive levels and thereby intentionally increased and fixed the tank car prices of gasoline contracted to be sold and sold in interstate commerce as aforesaid in the Mid-Western area (including the Western District of Wisconsin); (3) have exacted large sums of money from thousands of jobbers in the Mid-Western area by reason of the provisions of the prevailing form of jobber contracts which made the price to the jobber dependent on the average spot market price; and (4) in turn have intentionally raised the general level of retail prices prevailing in said Mid-Western area. As we have seen, there was substantial competent evidence that the buying programs resulted in an increase of spot market prices, of prices to jobbers and of retail prices in the Mid-Western area. And it is clear that certain corporate respondents sold gasoline during this period in the Mid-Western area at the increased prices. The court charged the jury that even though they found that defendants had the purpose and power to raise the spot market prices, they must acquit the defendants unless they also found and believed beyond a reasonable doubt that defendants have also intentionally raised and fixed the tank car price of gasoline contracted to be sold and which was sold in interstate commerce in the Mid-Western area, including the Western District of Wisconsin. It also charged that it was not enough for the prosecution to show an increase in the tank car prices of gasoline within said area, but you must also find and believe beyond a reasonable doubt and to a moral certainty that the defendants combined and conspired together or with others for the purpose of increasing and fixing the same as well as for the purpose of raising and fixing the tank car prices in said spot markets, on one or more of them. It further charged that the jury in order to convict must find some overt acts in the Western District of Wisconsin; and that sales of gasoline therein by any of the defendants would constitute such overt acts. Respondents, though agreeing that there were such sales in the Mid-Western area and that the prices on such sales were affected by the rise in the spot markets, deny that they were overt acts in pursuance of the conspiracy. Rather, they contend that each of such sales was an individual act of a particular conspirator in the ordinary course of his business by which he enjoyed the results of a conspiracy carried out in another district. That is to say, they take the position that the alleged conspiracy was limited to a restraint of competition in buying and selling on the spot markets and included no joint agreement or understanding as respects sales in the Mid-Western area. In support of this view they cite the government's concessions that it does not claim that each defendant `entered into an agreement not to sell jobbers except in accordance with' the contract described in Paragraph 11 of the Indictment; [64] and that it does not contend that defendants were sitting around a table and agreeing on a uniform retail price. And they assert that there was no evidence that respondents agreed not to sell gasoline in the Western District of Wisconsin except on the basis of spot market prices. Conspiracies under the Sherman Act are on the common law footing: they are not dependent on the doing of any act other than the act of conspiring as a condition of liability. Nash v. United States, supra, at p. 378. But since there was no evidence that the conspiracy was formed within the Western District of Wisconsin, the trial court was without jurisdiction unless some act pursuant to the conspiracy took place there. United States v. Trenton Potteries Co., supra, pp. 402-403, and cases cited. We agree with the Circuit Court of Appeals that there was ample evidence of such overt acts in that district. The finding of the jury on this aspect of the case was also supported by substantial evidence. As we indicated in our discussion of the buying programs, there was sufficient evidence to go to the jury that the conspiracy did not end with an agreement to make purchases on the spot markets; that those buying programs were but part of the wider stabilization efforts of respondents; that the chief end and objective were the raising and maintenance of Mid-Western prices at higher levels. As stated by the Circuit Court of Appeals a different conclusion would require a belief that respondents were engaged in a philanthropic endeavor. They obviously were not. The fact that no uniform jobbers' contract and no uniform retail price policy were agreed upon is immaterial. The objectives of the conspiracy would fail if respondents did not by some formula or method relate their sales in the Mid-Western area to the spot market prices. The objectives of the conspiracy would also fail if respondents, contrary to the philosophy of all the stabilization efforts, indulged in price cutting and price wars. Accordingly, successful consummation of the conspiracy necessarily involved an understanding or agreement, however informal, to maintain such improvements in Mid-Western prices as would result from the purchases of distress gasoline. The fact that that entailed nothing more than adherence to prior practice of relating those prices to the spot market is of course immaterial. In sum, the conspiracy contemplated and embraced, at least by clear implication, sales to jobbers and consumers in the Mid-Western area at the enhanced prices. The making of those sales supplied part of the continuous cooperation necessary to keep the conspiracy alive. See United States v. Kissel, 218 U.S. 601, 607. Hence, sales by any one of the respondents in the Mid-Western area bound all. For a conspiracy is a partnership in crime; and an overt act of one partner may be the act of all without any new agreement specifically directed to that act. United States v. Kissel, supra, p. 608.",Jurisdiction or Venue.
+434,103352,1,11,"Respondent McElroy argues that the judgment of conviction rendered against him should be reversed and the indictment dismissed not only for the reasons heretofore discussed, but more specifically on the grounds that there was no substantial evidence that he had any knowledge of and participated in the unlawful conspiracy. His motion for a directed verdict at the conclusion of the case was denied by the trial court and the Circuit Court of Appeals held that there was no error in such denial. A question of law is thus raised, which entails an examination of the record, not for the purpose of weighing the evidence but only to ascertain whether there was some competent and substantial evidence before the jury fairly tending to sustain the verdict. Abrams v. United States, 250 U.S. 616, 619; Troxell v. Delaware, L. & W.R. Co., 227 U.S. 434, 444; Lancaster v. Collins, 115 U.S. 222, 225. We have carefully reviewed the record for evidence of McElroy's knowledge of and participation in the conspiracy. But without burdening the opinion with a detailed exposition of the evidence on this point, we are of opinion that there was no error in the denial of his motion. The judgment of the Circuit Court of Appeals is reversed and that of the District Court affirmed. Reversed. The CHIEF JUSTICE and MR. JUSTICE MURPHY did not participate in the consideration or decision of this case.",Respondent McElroy.
+435,90558,1,1,"It is objected in the first place that the complainant is the assignee of a chose in action on which no suit could have been maintained in the Circuit Court by his assignor, and that consequently he is within the prohibition of the first section of the act of March 3, 1875, c, 137. The answer to this objection is, that the obligation sued on is a negotiable promissory note, and is, therefore, excepted out of the prohibition relied on. It is true that the bond, as originally executed, was payable to Gayer, receiver, simply, and was not negotiable; but the subsequent indorsement was a new and complete contract, upon a distinct and sufficient consideration, and being payable to bearer, is negotiable by delivery merely. It is a negotiable note within the meaning of the law merchant, and according to the law of the place of the contract, notwithstanding it is an instrument under seal. Langston v. South Carolina Railroad Co., 2 S.C. 248; Bank v. Railroad Company, 5 id. 156; Bond Debt Cases, 12 id. 200, 250. It is further objected, however, that the transaction between Corbin and Bradley was fictitious and not real; that the title to the bond remained in the former, so that the latter, not being the real party in interest, cannot maintain an action to enforce it; that the present suit is collusive, for the purpose of conferring jurisdiction upon the Circuit Court, and, therefore, within the rule declared in Smith v. Kernochen (7 How. 198), Jones v. League (18 id. 76), and Barney v. Baltimore City (6 Wall. 280), and enacted by the fifth section of that act, as construed in Williams v. Nottawa, 104 U.S. 209. The delivery of the bond by Corbin to Bradley, under the arrangement we have mentioned, was, however, a transfer of the legal title to the obligation. Whether the agreement was not also a transfer by Corbin of all beneficial interest in the bond, depends on whether Bradley was bound to account to him specifically for the net proceeds of its collection, or only to pay him so much money as they should amount to, — a question which it is not necessary to decide; because it does not appear from this record but that Corbin could himself have maintained a suit in his own name in the Circuit Court upon the bond. It is nowhere distinctly alleged or shown that at the time this suit was brought he was a citizen of South Carolina. That he was so at the time of the original transaction may be presumed or inferred from the circumstances; but to confer or oust jurisdiction, when that depends on citizenship, the necessary facts must be distinctly alleged and admitted or proved. Upon the present state of the record, the assumption could not have been made in his favor to sustain the jurisdiction if he were seeking as a citizen of South Carolina to prosecute a suit; and equally it will not be made to defeat the jurisdiction, which otherwise is rightly invoked by the complainant. It is further objected that the jurisdiction in equity cannot be sustained, because the complainant had a complete and adequate remedy at law, so far, at least, as relief is sought against the stockholders individually upon their statutory liability. That liability is a joint and several personal obligation of all the members of the company, unlimited except by the amount of the debts and contracts of the corporation, to which it extends. It is unconditional, original, and immediate, not dependent on the insufficiency of corporate assets, and not collateral to that of the corporation, upon the event of its insolvency. It is, in one aspect, a suretyship for the corporation, for by sect. 37 of the act any stockholder paying a debt of the company for which he is personally liable is entitled to an action against it for indemnity, in which he may take the corporate assets, but is without recourse upon the property of any other stockholder. The jurisdiction in equity, then, cannot rest upon the administration of a trust fund, as in cases where delinquent stockholders are charged with the obligation to make good their subscriptions to unpaid capital stock, or in those where a constitutional or statutory liability is imposed beyond the amount of the subscription, to a fixed sum, but on each in proportion to his share in the capital stock. There the necessity of enforcing a trust, marshalling assets, and equalizing contributions, constitutes a clear ground of equity jurisdiction. The statute under consideration prescribes no form of action, and the jurisdiction may be regarded as concurrent, both at law and in equity, according to the nature of the relief made necessary by the circumstances upon which the right arises. The thirty-fifth section of the act expressly authorizes separate actions at law against the company and against its officers, in cases where, by the statute, the latter are made personally liable for defined delinquencies; while the thirty-sixth section provides that the property of stockholders, in cases where they are liable, may be taken on attachment or execution issued against the company. In the present case there was an acknowledged jurisdiction to grant equitable relief, by enforcing the lien of the bond upon the corporate property, and as incident to that to make a decree against the corporation for the payment of the debt. Having jurisdiction for that purpose, it is entirely consistent with its principles and practice for a court of equity to extend it, so as to avoid a multiplicity of suits, and to give to the plaintiff a single and complete remedy. As the individual stockholder is bound by the judgment against the corporation, it is equitable that he should be present as a party, that he may have the opportunity to defend for himself; and in case of payment out of his property he is entitled to be subrogated to the right of the creditor against the company, in order to indemnify himself out of the corporate assets. On these grounds, we think, the jurisdiction in equity is well supported. II. The remaining grounds of defence have been, in effect, anticipated in the statement of the case. They are without merit or substance. The title of the complainant to the bond sued on cannot be assailed for want of authority in the receiver to transfer it, even if such a defence was open to the obligors, for it sufficiently appears that the transaction, if not previously authorized, was subsequently confirmed by the court. Nor does the relation between Corbin and the company at the time of the transaction furnish any defence, either at law or in equity. The relation undoubtedly was one of a confidential and fiduciary character, but there seems to be no ground in the evidence to challenge the good faith with which the business was conducted. The bond of the company was purchased from the receiver with his own means, and not those of the company; the value paid, so far as the testimony discloses, was full; and every step, when taken, was made known and assented to by the directors of the corporation. The transaction was legitimate in itself and beneficial to the company, and the dealing was not by the president with himself, but with the corporation, in fact, represented and acting by other directors, with full knowledge of all the facts. A defence of payment was suggested by the circumstance that the receiver, after parting with the bond in exchange for the stock, reported it as paid in that way. So far as the fund in his hands was concerned, it might be so treated; but the company and its stockholders must be conscious that they have no right so to consider it. We find no error in the decree, and it is accordingly Affirmed.",The first of these relates to the jurisdiction of the court.
+436,105537,1,1,"One object of the conspiracy charged was to violate the third paragraph of 18 U. S. C. § 2385, which provides: Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any [government in the United States] by force or violence . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both . . . . [3] Petitioners claim that organize means to establish, found, or bring into existence, and that in this sense the Communist Party [4] was organized by 1945 at the latest. [5] On this basis petitioners contend that this part of the indictment, returned in 1951, was barred by the three-year statute of limitations. [6] The Government, on the other hand, says that organize connotes a continuing process which goes on throughout the life of an organization, and that, in the words of the trial court's instructions to the jury, the term includes such things as the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units of any society, party, group or other organization. The two courts below accepted the Government's position. We think, however, that petitioners' position must prevail, upon principles stated by Chief Justice Marshall more than a century ago in United States v. Wiltberger, 5 Wheat. 76, 95-96, as follows: The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. It is said, that notwithstanding this rule, the intention of the law maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorise us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases. The statute does not define what is meant by organize. Dictionary definitions are of little help, for, as those offered us sufficiently show, the term is susceptible of both meanings attributed to it by the parties here. [7] The fact that the Communist Party comprises various components and activities, in relation to which some of the petitioners bore the title of Organizer, does not advance us towards a solution of the problem. The charge here is that petitioners conspired to organize the Communist Party, and, unless organize embraces the continuing concept contended for by the Government, the establishing of new units within the Party and similar activities, following the Party's initial formation in 1945, have no independent significance or vitality so far as the organizing charge is involved. Nor are we here concerned with the quality of petitioners' activities as such, that is, whether particular activities may properly be categorized as organizational. Rather, the issue is whether the term organize as used in this statute is limited by temporal concepts. Stated most simply, the problem is to choose between two possible answers to the question: when was the Communist Party organized? Petitioners contend that the only natural answer to the question is the formation date—in this case, 1945. The Government would have us answer the question by saying that the Party today is still not completely organized; that organizing is a continuing process that does not end until the entity is dissolved. The legislative history of the Smith Act is no more revealing as to what Congress meant by organize than is the statute itself. The Government urges that organize should be given a broad meaning since acceptance of the term in its narrow sense would require attributing to Congress the intent that this provision of the statute should not apply to the Communist Party as it then existed. The argument is that since the Communist Party as it then existed had been born in 1919 and the Smith Act was not passed until 1940, the use of organize in its narrow sense would have meant that these provisions of the statute would never have reached the act of organizing the Communist Party, except for the fortuitous rebirth of the Party in 1945—an occurrence which, of course, could not have been foreseen in 1940. This, says the Government, could hardly have been the congressional purpose since the Smith Act as a whole was particularly aimed at the Communist Party, and its organizing provisions were especially directed at the leaders of the movement. We find this argument unpersuasive. While the legislative history of the Smith Act does show that concern about communism was a strong factor leading to this legislation, it also reveals that the statute, which was patterned on state anti-sedition laws directed not against Communists but against anarchists and syndicalists, was aimed equally at all groups falling within its scope. [8] More important, there is no evidence whatever to support the thesis that the organizing provision of the statute was written with particular reference to the Communist Party. Indeed, the congressional hearings indicate that it was the advocating and teaching provision of the Act, rather than the organizing provision, which was especially thought to reach Communist activities. [9] Nor do there appear to be any other reasons for ascribing to organize the Government's broad interpretation. While it is understandable that Congress should have wished to supplement the general provisions of the Smith Act by a special provision directed at the activities of those responsible for creating a new organization of the proscribed type, such as was the situation involved in the Dennis case, we find nothing which suggests that the organizing provision was intended to reach beyond this, that is, to embrace the activities of those concerned with carrying on the affairs of an already existing organization. Such activities were already amply covered by other provisions of the Act, such as the membership clause, [10] and the basic prohibition of advocacy in conjunction with the conspiracy provision, and there is thus no need to stretch the organizing provision to fill any gaps in the statute. Moreover, it is difficult to find any considerations, comparable to those relating to persons responsible for creating a new organization, which would have led the Congress to single out for special treatment those persons occupying so-called organizational positions in an existing organization, especially when this same section of the statute proscribes membership in such an organization without drawing any distinction between those holding executive office and others. On the other hand, we also find unpersuasive petitioners' argument as to the intent of Congress. In support of the narrower meaning of organize, they argue that the Smith Act was patterned after the California Criminal Syndicalism Act; [11] that the California courts have consistently taken organize in that Act in its narrow sense; [12] and that under such cases as Willis v. Eastern Trust & Banking Co., 169 U. S. 295, 304, 309, and Joines v. Patterson, 274 U. S. 544, 549, it should be presumed that Congress in adopting the wording of the California Act intended organize to have the same meaning as that given it by the California courts. As the hearings on the Smith Act show, however, its particular prototype was the New York Criminal Anarchy Act, [13] not the California statute, and the organizing provisions of the New York Act have never been construed by any court. Moreover, to the extent that the language of the California statute, which itself was patterned on the earlier New York legislation, might be significant, we think that little weight can be given to these California decisions. The general rule that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording . . . is a presumption of legislative intention . . . which varies in strength with the similarity of the language, the established character of the decisions in the jurisdiction from which the language was adopted and the presence or lack of other indicia of intention. Carolene Products Co. v. United States, 323 U. S. 18, 26. Here, the three California cases relied on by petitioners were all decisions of lower courts, and, in the absence of anything in the legislative history indicating that they were called to its attention, we should not assume that Congress was aware of them. We are thus left to determine for ourselves the meaning of this provision of the Smith Act, without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to organize its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed organizational. See United States v. Wiltberger, supra ; United States v. Lacher, 134 U. S. 624, 628; United States v. Gradwell, 243 U. S. 476, 485; Fasulo v. United States, 272 U. S. 620, 628. Such indeed is the normal usage of the word organize, [14] and until the decisions below in this case the federal trial courts in which the question had arisen uniformly gave it that meaning. See United States v. Flynn , unreported (D. C. S. D. N. Y.), No. C. 137-37, aff'd, 216 F. 2d 354, 358; United States v. Mesarosh, 116 F. Supp. 345, aff'd, 223 F. 2d 449, 465 (dissenting opinion of Hastie, J.); see also United States v. Dennis, unreported (D. C. S. D. N. Y.), No. C. 128-87, aff'd, 183 F. 2d 201, 341 U. S. 494. [15] We too think this statute should be read according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation. United States v. Temple, 105 U. S. 97, 99. The Government contends that even if the trial court was mistaken in its construction of the statute, the error was harmless because the conspiracy charged embraced both advocacy of violent overthrow and organizing the Communist Party, and the jury was instructed that in order to convict it must find a conspiracy extending to both objectives. Hence, the argument is, the jury must in any event be taken to have found petitioners guilty of conspiring to advocate, and the convictions are supportable on that basis alone. We cannot accept this proposition for a number of reasons. The portions of the trial court's instructions relied on by the Government are not sufficiently clear or specific to warrant our drawing the inference that the jury understood it must find an agreement extending to both advocacy and organizing in order to convict. [16] Further, in order to convict, the jury was required, as the court charged, to find an overt act which was knowingly done in furtherance of an object or purpose of the conspiracy charged in the indictment, and we have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the advocacy rather than the organizing objective of the alleged conspiracy. The character of most of the overt acts alleged associates them as readily with organizing as with advocacy. [17] In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 291-292; Cramer v. United States, 325 U. S. 1, 36, n. 45. We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment was not returned until 1951, the three-year statute of limitations had run on the organizing charge, and required the withdrawal of that part of the indictment from the jury's consideration. Samuel v. United States, 169 F. 2d 787, 798. See also Haupt v. United States, 330 U. S. 631, 641, n. 1; Stromberg v. California, supra, at 368.",The Term Organize.
+437,105537,1,2,"Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired to promote was of a kind calculated to incite persons to action for the forcible overthrow of the Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the free speech protection of the First Amendment; that the Smith Act, consistently with that constitutional provision, must be taken as proscribing only the sort of advocacy which incites to illegal action; and that the trial court's charge, by permitting conviction for mere advocacy, unrelated to its tendency to produce forcible action, resulted in an unconstitutional application of the Smith Act. The Government, which at the trial also requested the court to charge in terms of incitement, now takes the position, however, that the true constitutional dividing line is not between inciting and abstract advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting qualities, and the mere discussion or exposition of violent overthrow as an abstract theory. We print in the margin the pertinent parts of the trial court's instructions. [18] After telling the jury that it could not convict the defendants for holding or expressing mere opinions, beliefs, or predictions relating to violent overthrow, the trial court defined the content of the proscribed advocacy or teaching in the following terms, which are crucial here: Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants. The kind of advocacy and teaching which is charged and upon which your verdict must be reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence. There can be no doubt from the record that in so instructing the jury the court regarded as immaterial, and intended to withdraw from the jury's consideration, any issue as to the character of the advocacy in terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government submitted proposed instructions which would have required the jury to find that the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action. [19] The trial court rejected these proposed instructions on the ground that any necessity for giving them which may have existed at the time the Dennis case was tried [20] was removed by this Court's subsequent decision in that case. The court made it clear in colloquy with counsel that in its view the illegal advocacy was made out simply by showing that what was said dealt with forcible overthrow and that it was uttered with a specific intent to accomplish that purpose, [21] insisting that all such advocacy was punishable whether it is language of incitement or not. The Court of Appeals affirmed on a different theory, as we shall see later on. We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not. The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U. S. 273, and Schenck v. United States, 249 U. S. 47. [22] This distinction was heavily underscored in Gitlow v. New York, 268 U. S. 652, in which the statute involved [23] was nearly identical with the one now before us, and where the Court, despite the narrow view there taken of the First Amendment, [24] said: The statute does not penalize the utterance or publication of abstract `doctrine' or academic discussion having no quality of incitement to any concrete action. . . . It is not the abstract `doctrine' of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose. . . . This [Manifesto] . . . is [in] the language of direct incitement. . . . That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear. . . . That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Id., at 664-669. We need not, however, decide the issue before us in terms of constitutional compulsion, for our first duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words advocate and teach in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. See Willis v. Eastern Trust & Banking Co., supra ; Joines v. Patterson, supra ; James v. Appel, 192 U. S. 129, 135. The Gitlow case and the New York Criminal Anarchy Act there involved, which furnished the prototype for the Smith Act, were both known and adverted to by Congress in the course of the legislative proceedings. [25] Cf. Carolene Products Co. v. United States, supra . The legislative history of the Smith Act and related bills shows beyond all question that Congress was aware of the distinction between the advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and that it did not intend to disregard it. [26] The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action. The Government's reliance on this Court's decision in Dennis is misplaced. The jury instructions which were refused here were given there, [27] and were referred to by this Court as requiring the jury to find the facts essential to establish the substantive crime. 341 U. S., at 512 (emphasis added). It is true that at one point in the late Chief Justice's opinion it is stated that the Smith Act is directed at advocacy, not discussion, id., at 502, but it is clear that the reference was to advocacy of action, not ideas, for in the very next sentence the opinion emphasizes that the jury was properly instructed that there could be no conviction for advocacy in the realm of ideas. The two concurring opinions in that case likewise emphasize the distinction with which we are concerned. Id., at 518, 534, 536, 545, 546, 547, 571, 572. In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since inciting speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action. [28] This misconceives the situation confronting the Court in Dennis and what was held there. Although the jury's verdict, interpreted in light of the trial court's instructions, [29] did not justify the conclusion that the defendants' advocacy was directed at, or created any danger of, immediate overthrow, it did establish that the advocacy was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time. In such circumstances, said Chief Justice Vinson, the Government need not hold its hand until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. 341 U. S., at 509. The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to action for the accomplishment of forcible overthrow, to violence as a rule-or principle of action, and employing language of incitement, id., at 511-512, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis. As one of the concurring opinions in Dennis put it: Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken. Id., at 545. There is nothing in Dennis which makes that historic distinction obsolete. The Court of Appeals took a different view from that of the District Court. While seemingly recognizing that the proscribed advocacy must be associated in some way with action, and that the instructions given the jury here fell short in that respect, it considered that the instructions which the trial court refused were unnecessary in this instance because establishment of the conspiracy, here charged under the general conspiracy statute, required proof of an overt act, whereas in Dennis, where the conspiracy was charged under the Smith Act, no overt act was required. [30] In other words, the Court of Appeals thought that the requirement of proving an overt act was an adequate substitute for the linking of the advocacy to action which would otherwise have been necessary. [31] This, of course, is a mistaken notion, for the overt act will not necessarily evidence the character of the advocacy engaged in, nor, indeed, is an agreement to advocate forcible overthrow itself an unlawful conspiracy if it does not call for advocacy of action. The statement in Dennis that it is the existence of the conspiracy which creates the danger, 341 U. S., at 511, does not support the Court of Appeals. Bearing in mind that Dennis, like all other Smith Act conspiracy cases thus far, including this one, involved advocacy which had already taken place, and not advocacy still to occur, it is clear that in context the phrase just quoted referred to more than the basic agreement to advocate. The mere fact that [during the indictment period] petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with . . . world conditions, . . . disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. . . . If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added. 341 U. S., at 510-511 (emphasis supplied). The reference of the term conspiracy, in context, was to an agreement to accomplish overthrow at some future time, implicit in the jury's findings under the instructions given, rather than to an agreement to speak. Dennis was thus not concerned with a conspiracy to engage at some future time in seditious advocacy, but rather with a conspiracy to advocate presently the taking of forcible action in the future. It was action, not advocacy, that was to be postponed until circumstances would permit. We intimate no views as to whether a conspiracy to engage in advocacy in the future, where speech would thus be separated from action by one further remove, is punishable under the Smith Act. We think, thus, that both of the lower courts here misconceived Dennis. In light of the foregoing we are unable to regard the District Court's charge upon this aspect of the case as adequate. The jury was never told that the Smith Act does not denounce advocacy in the sense of preaching abstractly the forcible overthrow of the Government. We think that the trial court's statement that the proscribed advocacy must include the urging, necessity, and duty of forcible overthrow, and not merely its desirability and propriety, may not be regarded as a sufficient substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of government by force and violence. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something. At best the expressions used by the trial court were equivocal, since in the absence of any instructions differentiating advocacy of abstract doctrine from advocacy of action, they were as consistent with the former as they were with the latter. Nor do we regard their ambiguity as lessened by what the trial court had to say as to the right of the defendants to announce their beliefs as to the inevitability of violent revolution, or to advocate other unpopular opinions. Especially when it is unmistakable that the court did not consider the urging of action for forcible overthrow as being a necessary element of the proscribed advocacy, but rather considered the crucial question to be whether the advocacy was uttered with a specific intent to accomplish such overthrow, [32] we would not be warranted in assuming that the jury drew from these instructions more than the court itself intended them to convey. Nor can we accept the Government's argument that the District Court was justified in not charging more than it did because the refused instructions proposed by both sides specified that the advocacy must be of a character reasonably calculated to incite to forcible overthrow, a term which, it is now argued, might have conveyed to the jury an implication that the advocacy must be of immediate action. Granting that some qualification of the proposed instructions would have been permissible to dispel such an implication, and that it was not necessary even that the trial court should have employed the particular term incite, it was nevertheless incumbent on the court to make clear in some fashion that the advocacy must be of action and not merely abstract doctrine. The instructions given not only do not employ the word incite, but also avoid the use of such terms and phrases as action, call for action, as a rule or principle of action, and so on, all of which were offered in one form or another by both the petitioners and the Government. [33] What we find lacking in the instructions here is illustrated by contrasting them with the instructions given to the Dennis jury, upon which this Court's sustaining of the convictions in that case was bottomed. There the trial court charged: In further construction and interpretation of the statute [the Smith Act] I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired . . . to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow . . . as speedily as circumstances would permit. (Emphasis added.) 9 F. R. D. 367, 391; and see 341 U. S., at 511-512. We recognize that distinctions between advocacy or teaching of abstract doctrines, with evil intent, and that which is directed to stirring people to action, are often subtle and difficult to grasp, for in a broad sense, as Mr. Justice Holmes said in his dissenting opinion in Gitlow, supra, 268 U. S., at 673: Every idea is an incitement. But the very subtlety of these distinctions required the most clear and explicit instructions with reference to them, for they concerned an issue which went to the very heart of the charges against these petitioners. The need for precise and understandable instructions on this issue is further emphasized by the equivocal character of the evidence in this record, with which we deal in Part III of this opinion. Instances of speech that could be considered to amount to advocacy of action are so few and far between as to be almost completely overshadowed by the hundreds of instances in the record in which overthrow, if mentioned at all, occurs in the course of doctrinal disputation so remote from action as to be almost wholly lacking in probative value. Vague references to revolutionary or militant action of an unspecified character, which are found in the evidence, might in addition be given too great weight by the jury in the absence of more precise instructions. Particularly in light of this record, we must regard the trial court's charge in this respect as furnishing wholly inadequate guidance to the jury on this central point in the case. We cannot allow a conviction to stand on such an equivocal direction to the jury on a basic issue. Bollenbach v. United States, 326 U. S. 607, 613.",Instructions to the Jury.
+438,105537,1,4,"There remains to be dealt with petitioner Schneiderman's claim based on the doctrine of collateral estoppel by judgment. Petitioner urges that in Schneiderman v. United States, 320 U. S. 118, a denaturalization proceeding in which he was the prevailing party, this Court made determinations favorable to him which are conclusive in this proceeding under the doctrine of collateral estoppel. Specifically, petitioner contends that the Schneiderman decision determined, for purposes of this proceeding, (1) that the teaching of Marxism-Leninism by the Communist Party was not necessarily the advocacy of violent overthrow of government; (2) that at least one tenable conclusion to be drawn from the evidence was that the Communist Party desired to achieve its goal of socialism through peaceful means; (3) that it could not be presumed, merely because of his membership or officership in the Communist Party, that Schneiderman adopted an illegal interpretation of Marxist doctrine; and finally, (4) that absent proof of overt acts indicating that Schneiderman personally adopted a reprehensible interpretation, the Government had failed to establish its burden by the clear and unequivocal evidence necessary in a denaturalization case. In the courts below, petitioner urged unsuccessfully that these determinations were conclusive in this proceeding under the doctrine of collateral estoppel, and entitled him either to an acquittal or to special instructions to the jury. He makes the same contentions here. We are in agreement with petitioner that the doctrine of collateral estoppel is not made inapplicable by the fact that this is a criminal case, whereas the prior proceedings were civil in character. United States v. Oppenheimer, 242 U. S. 85. We agree further that the nonexistence of a fact may be established by a judgment no less than its existence; that, in other words, a party may be precluded under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought unsuccessfully to prove in a prior action. Sealfon v. United States, 332 U. S. 575. Nor need we quarrel with petitioner's premise that the standard of proof applicable in denaturalization cases is at least no greater than that applicable in criminal proceedings. Compare Helvering v. Mitchell, 303 U. S. 391; Murphy v. United States, 272 U. S. 630. We assume, without deciding, that substantially the same standards of proof are applicable in the two types of cases. Cf. Klapprott v. United States, 335 U. S. 601, 612. Nevertheless, for reasons that will appear, we think that the doctrine of collateral estoppel does not help petitioner here. We differ with petitioner, first of all, in his estimate of what the Schneiderman case determined for purposes of the doctrine of collateral estoppel. That doctrine makes conclusive in subsequent proceedings only determinations of fact, and mixed fact and law, that were essential to the decision. Commissioner v. Sunnen, 333 U. S. 591, 601-602; Tait v. Western Maryland R. Co., 289 U. S. 620; The Evergreens v. Nunan, 141 F. 2d 927, 928. As we read the Schneiderman opinion, the only determination essential to the decision was that Schneiderman had not, prior to 1927, adopted an interpretation of the Communist Party's teachings featuring agitation and exhortation calling for present violent action. 320 U. S., at 157-159. If it be accepted that the holding extended in the alternative to the character of advocacy engaged in by the Communist Party, then the essential finding was that the Party had not, in 1927, engaged in agitation and exhortation calling for present violent action. Ibid. The Court in Schneiderman certainly did not purport to determine what the doctrinal content of Marxism-Leninism might be at all times and in all places. Nor did it establish that the books and pamphlets introduced against Schneiderman in that proceeding could not support in any way an inference of criminality, no matter how or by whom they might thereafter be used. At most, we think, it made the determinations we have stated, limited to the time and place that were then in issue. It is therefore apparent that the determinations made by this Court in Schneiderman could not operate as a complete bar to this proceeding. Wholly aside from the fact that the Court was there concerned with the state of affairs existing in 1927, whereas we are concerned here with the period 1948-1951, the issues in the present case are quite different. We are not concerned here with whether petitioner has engaged in agitation and exhortation calling for present violent action, whether in 1927 or later. Even if it were conclusively established against the Government that neither petitioner nor the Communist Party had ever engaged in such advocacy, that circumstance would constitute no bar to a conviction under 18 U. S. C. § 371 of conspiring to advocate forcible overthrow of government in violation of the Smith Act. It is not necessary for conviction here that advocacy of present violent action be proved. Petitioner's demand for judgment of acquittal must therefore be rejected. The decision in Federal Trade Commission v. Cement Institute, 333 U. S. 683, 708-709, is precisely in point and is controlling. What we have said we think also disposes of petitioner's contention that the trial court should have instructed the jury that certain evidentiary or subordinate issues must be taken as conclusively determined in his favor. The argument is that the determinations made in the Schneiderman case are not wholly irrelevant to this case, even if they do not conclude it, and hence that petitioner should be entitled to an instruction giving those determinations such partial conclusive effect as they might warrant. We think, however, that the doctrine of collateral estoppel does not establish any such concept of conclusive evidence as that contended for by petitioner. The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or mediate facts are concerned, the doctrine of collateral estoppel is inoperative. The Evergreens v. Nunan, 141 F. 2d 927; Restatement, Judgments § 68, comment p. Whether there are any circumstances in which the giving of limiting instructions such as those requested here might be necessary or proper, we need not now determine. Cf. Bordonaro Bros. Theatres, Inc. v. Paramount Pictures, Inc., 203 F. 2d 676, 678. It is sufficient for us to hold that in this case the matters of fact and mixed fact and law necessarily determined by the prior judgment, limited as they were to the year 1927, were so remote from the issues as to justify their exclusion from evidence in the discretion of the trial judge. Since there must be a new trial, we have not found it necessary to deal with the contentions of the petitioners as to the fairness of the trial already held. The judgment of the Court of Appeals is reversed, and the case remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.",Collateral Estoppel.
+439,2621053,1,2,"(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection .... 28 U. S. C. §§2412(d)(1)(A), (B) (emphasis added). Petitioner argues that this provision is most naturally read to mean that it is the court before which the civil action is pending that must render the final judgment that starts the running of the 30-day EAJA filing period. Brief for Petitioner 13. We agree. As the highlighted language indicates, subsections (d)(1)(A) and (d)(1)(B) work in tandem. Subsection (d)(1)(A) authorizes the awarding of fees to parties that prevail against the United States in nontort civil actions, subject to qualifications not pertinent here. Subsection (d)(1)(B) explains what the prevailing party must do to secure the fee award. The requirement that the fee application be filed within 30 days of final judgment in the action  plainly refers back to the civil action ... in any court in (d)(1)(A). The plain language makes clear that a final judgment under § 2412 can only be the judgment of a court of law. This reading is reinforced by the contrast between § 2412 and 5 U. S. C. § 504(a). Section 504 was enacted at the same time as § 2412, and is the only part of the EAJA that allows fees and expenses for administrative proceedings conducted prior to the filing of a civil action. The pertinent language of § 504(a)(2) largely mirrors that of § 2412(d)(1)(B), with one notable exception: It states that a party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication,  file an application for fees. 5 U. S. C. § 504(a)(2) (emphasis added). Clearly Congress knew how to distinguish between a final judgment in [an] action and a final disposition in [an] adversary adjudication. One is rendered by a court; the other includes adjudication by an administrative agency. The Secretary's sole argument to the contrary rests on the 1985 amendments to EAJA, which added a definition of final judgment to § 2412. Traditionally, a final judgment is one that is final and appealable. See Fed. Rule Civ. Proc. 54(a) (`Judgment' as used in these rules includes a decree and any order from which an appeal lies); Sullivan v. Finkelstein, 496 U. S. 617, 628 (1990) (`[F]inal judgments' are at the core of matters appealable under § 1291). Under § 2412, as amended, however, a final judgment is one that is final and not appealable. 28 U. S. C. § 2412(d)(2)(G) (emphasis added). In the Secretary's view, [t]his significant departure from the usual characteristi[c] of a `judgment' entered by a court dictates a different understanding of how the phrase final judgment is used in § 2412(d)(1)(B). Brief for Respondent 20. The Secretary argues that under the revised statute, a final judgment includes not only judgments rendered by a court, but also decisions made by administrative agencies. Ibid. We reject this argument. Section 2412(d)(1)(B) does not speak merely of a judgment; it speaks of a final judgment in the action.  As we have explained, the action referred to in subsection (d)(1)(B) is a civil action ... in any court under subsection (d)(1)(A). The Secretary's suggested interpretation of final judgment does not alter this unambiguous requirement of judgment by a court. As for why Congress added the unusual definition of final judgment, the answer is clear. The definition ... was added in 1985 to resolve a conflict in the lower courts on the question whether a `judgment' was to be regarded as `final' for EAJA purposes when it was entered, or only when the period for taking an appeal had lapsed. Brief for Respondent 20 (footnote omitted). The Ninth Circuit had held that the 30-day EAJA filing period began to run when the district court entered judgment. McQuiston v. Marsh, 707 F. 2d 1082, 1085 (1983). The Seventh Circuit rejected this view, holding that the EAJA filing period should be deemed to begin only after the time for taking an appeal from the district court judgment had expired. McDonald v. Schweiker, 726 F. 2d 311, 314 (1983). Accord, Massachusetts Union of Public Housing Tenants, Inc. v. Pierce, 244 U. S. App. D. C. 34, 36, 755 F. 2d 177, 179 (1985). Congress responded to this split in the federal courts by explicitly adopting and ratifying the McDonald approach. S. Rep. No. 98-586, p. 16 (1984) (The Committee believes that the interpretation of the court in [McDonald] is the correct one). See also H. R. Rep. No. 98-992, p. 14 (1984) (The term `final judgment' has been clarified to mean a judgment the time to appeal which has expired for all parties); H. R. Rep. No. 99-120, p. 18 (1985). There simply is no evidence to support the argument the Secretary now advances —that, in defining final judgment so as to resolve an existing problem, Congress also intended, sub silentio, to alter the meaning of the term to include a final agency decision. We conclude that, notwithstanding the 1985 amendment, Congress' use of judgment in 28 U. S. C. § 2412 refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency. Accordingly, we hold that a final judgment for purposes of 28 U. S. C. § 2412(d)(1)(B) means a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that final judgment has expired. Our decision in Sullivan v. Hudson, 490 U. S. 877 (1989), is not to the contrary. The issue in Hudson was whether, under § 2412(d), a civil action could include administrative proceedings so that a claimant could receive attorney's fees for work done at the administrative level following a remand by the district court. We explained that certain administrative proceedings are so intimately connected with judicial proceedings as to be considered part of the `civil action' for purposes of a fee award. Id., at 892. We defined the narrow class of qualifying administrative proceedings to be those where `a suit [has been] brought in a court,' and where `a formal complaint within the jurisdiction of a court of law' remains pending and depends for its resolution upon the outcome of the administrative proceedings.  Ibid. (emphasis added). Hudson thus stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level. Ibid. We did not say that proceedings on remand to an agency are `part and parcel' of a civil action in federal district court for all purposes.... Sullivan v. Finkelstein, supra, at 630-631.","As relevant to this case, EAJA provides:"
+440,107872,1,2,"While I would hold that property owners have no right as such to hear conversations in which they were not participants, it appears to me that at a minimum the Court should adopt the Government's suggested judicial screening procedure with regard to third-party conversations. Property owners should not be permitted to intrude into the private lives of others unless a trial judge determines that the conversation at issue is at least arguably relevant to the pending prosecution. On the other hand, I would agree that in the typical case, the prosecution should be required to hand over the records of all conversations in which the accused played a part. Since the other parties to these conversations knew they were talking to the accused, they can hardly have an important interest in concealing from him what they said to him. Whatever risk of unauthorized disclosure is involved may generally be minimized even further by the issuance of appropriate protective orders. Fed. Rule Crim. Proc. 16 (e). There is, however, at least one class of cases in which the standard considerations do not apply. I refer to the situations exemplified by Ivanov and Butenko, in which the defendant is charged, under one statute or another, with spying for a foreign power. In contrast to the typical situation, here the accused may learn important new information even if the turnover is limited to conversations in which he was a participant. For example, he may learn the location of a listening device—a fact that may be of crucial significance in espionage work. Moreover, he will be entitled to learn this fact even though a valid warrant has subsequently been issued authorizing electronic surveillance at the same location. Similarly, the accused may find out that the United States has obtained certain information that his foreign government believes is still secret, even when our Government has also received this information from an independent source in a constitutional way. And he may learn that those in whom he has been reposing confidence are in fact American undercover agents. Even more important, there is much less reason to believe that a protective court order will effectively deter the defendant in an espionage case from turning over the new information he has received to those who are not entitled to it. For in an espionage case, the defendant is someone the grand jury has found is likely to have passed secrets to a foreign power. It is one thing to believe that the normal criminal defendant will refuse to pass on information if threatened with severe penalties for unauthorized disclosure. It is quite a different thing to believe that a defendant who is probably a spy will not pass on to the foreign power any additional information he has received. Moreover, apart from the sense of fair play of most judges, additional safeguards could be devised which would assure that an in camera procedure would be used only when an unauthorized disclosure presents a substantial risk to the national security. As in the somewhat analogous situation in which the Government attempts to invoke a national security privilege in a civil action in order to trigger an in camera proceeding, there should be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. United States v. Reynolds, 345 U. S. 1, 7-8 (1953). Indeed, I would go even further than did the Court in Reynolds and lay upon trial judges the affirmative duty of assuring themselves that the national security interests claimed to justify an in camera proceeding are real and not merely colorable. The Court's failure to consider the special characteristics of the Ivanov and Butenko cases is particularly surprising in the light of the reasons it gives for creating an absolute rule in favor of an automatic turnover. For the majority properly recognizes that its preference for a full adversary hearing cannot be justified by an easy reference to an absolute principle condemning in camera judicial decisions in all situations. Indeed, this Court has expressly authorized the use of such procedures in closely related areas involving the vindication of Fourth Amendment rights. See Roviaro v. United States, 353 U. S. 53 (1957); McCray v. Illinois, 386 U. S. 300, 309-313 (1967). If, as the Court rightly states, the propriety of an in camera screening procedure is a matter of judgment, ante, at 182, depending on an informed consideration of all the competing factors, I do not understand why the trial judge should not be authorized to consider whether the accused simply cannot be trusted to keep the Government's records confidential. Nor do I understand why the Government must be confronted with the choice of dismissing the indictment or disclosing the information because the accused cannot be counted on to keep faith with the Court. [9] Moreover, it is not difficult to imagine cases in which the danger of unauthorized disclosure of important information would clearly outweigh the risk that an error may be made by the trial judge in determining whether a particular conversation is arguably relevant to the pending prosecution. It may well be, for example, that the number of conversations at issue is very small. Yet though the Court itself recognizes that the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, ante, at 184, it nevertheless leaves no room for an informed decision by the trial judge that the risk of error on the facts of a given case is insubstantial. Since the number of espionage cases is small, there is no chance whatever that these decisions will be made in a hurried fashion or that they will not be subjected to the most searching scrutiny on appeal. Of course, if any of the conversations should be found arguably relevant, their disclosure should be required before the prosecution is permitted to continue. In sum, I would require the Government to turn over to Alderman and Alderisio only the records of those conversations in which each defendant participated, and I would leave the way open for a preliminary in camera screening procedure in the Ivanov and Butenko cases.",in camera proceedings.
+441,106391,1,1,"In addition to challenges to the grand and petit juries, petitioner prior to the selection of the petit jury made five motions on the ground of bias and prejudice arising from the publicity, viz., one to quash the indictment, three for continuances ranging from one month to an indefinite period, and one for a change of venue to Snohomish or Whatcom County. Petitioner's counsel supported his factual contentions in regard to these various motions by his personal affidavits as well as by photostats of stories appearing in local newspapers and national magazines. We shall now summarize the highlights of the publicity set forth by the petitioner in his moving papers and exhibits. The Select Committee on Improper Activities in the Labor or Management Field of the United States Senate began its investigation on February 26, 1957. In early March the Chairman of the Committee announced that the Committee had produced `rather conclusive' evidence of a tie-up between West Coast Teamsters and under-world bosses to monopolize vice in Portland, Ore. The announcement also stated that Teamsters' President Dave Beck and Brewster [also a Teamster leader] will be summoned for questioning on a charge that they schemed to control Oregon's law enforcement machinery from a local level on up to the governor's chair. On March 22 the Committee was quoted in the newspapers as stating $250,000 had been taken from Teamster funds . . . and used for Beck's personal benefit. Petitioner appeared before the Committee on March 26, and the newspapers reported: BECK TAKES 5TH AMENDMENT President of Teamsters `Very Definitely' Thinks Records Might Incriminate Him. Television cameras were permitted at the hearings. One Seattle TV station ran an 8 3/4-hour live broadcast of the session on March 27, and films of this session were shown by various TV stations in the Seattle-Tacoma area. The April 12 issue of the U. S. News & World Report ran a caption: Take a look around Seattle these days, and you find what a Senate inquiry can do to a top labor leader in his own home town. On April 26 the county prosecutor announced that a special grand jury would be impaneled in Seattle to investigate possible misuse of Teamsters Union funds by international president Dave Beck . . . . It was later announced that former Mayor Devin of Seattle was to be appointed Chief Special Prosecutor. On May 3 petitioner was indicted by a federal grand jury at Tacoma for income tax evasion. The announcement of this action was of course in front-page headlines. Five days later the petitioner was again called as a witness before the Committee in Washington. News stories on his appearance concentrated on his pleading of the Fifth Amendment 60 times during the hearings. Other stories emanating from the Committee hearings were featured intermittently, and on May 20, the day of the convening of the special grand jury, the Chairman of the Senate Committee announced that the Committee has not convicted Mr. Beck of any crime, although it is my belief that he has committed many criminal offenses. The publicity continued to some degree after the grand jury had been convened and during the three-week period in which the prosecutors were gathering up documentary evidence through the use of grand jury subpoenas. Among other stories that appeared was one of June 4 stating that at the Committee hearings Beck, Jr., who even refused to say whether he knew his father, took shelter behind the [fifth] amendment 130 times, following the example of Beck, Sr., who refused to answer 210 times in three appearances before the committee. The indictment in this case was returned by the special grand jury on July 12 and of course received banner headlines. Intermittent publicity continued, some from Washington, D. C., until August 28 when a federal grand jury indicted petitioner and others on additional income tax evasion counts. The co-conspirators named in this latter indictment were then called before the Committee in Washington, and these hearings, which were held on November 5, brought on additional publicity. On November 12 Dave Beck, Jr., went to trial on other larceny charges and was convicted on November 23, a Saturday. The state papers gave that event considerable coverage. The trial of petitioner in this case began on December 2 and continued until his conviction on December 14.",the publicity of which petitioner complains.
+442,106391,1,2,"Ever since Hurtado v. California, 110 U. S. 516 (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions. The State of Washington abandoned its mandatory grand jury practice some 50 years ago. [1] Since that time prosecutions have been instituted on informations filed by the prosecutor, on many occasions without even a prior judicial determination of probable cause—a procedure which has likewise had approval here in such cases as Ocampo v. United States, 234 U. S. 91 (1914), and Lem Woon v. Oregon, 229 U. S. 586 (1913). Grand juries in Washington are convened only on special occasions and for specific purposes. The grand jury in this case, the eighth called in King County in 40 years, was summoned primarily to investigate circumstances which had been the subject of the Senate Committee hearings. In his attempts before trial to have the indictment set aside petitioner did not contend that any particular grand juror was prejudiced or biased. Rather, he asserted that the judge impaneling the grand jury had breached his duty to ascertain on voir dire whether any prospective juror had been influenced by the adverse publicity and that this error had been compounded by his failure to adequately instruct the grand jury concerning bias and prejudice. It may be that the Due Process Clause of the Fourteenth Amendment requires the State, having once resorted to a grand jury procedure, to furnish an unbiased grand jury. Compare Lawn v. United States, 355 U. S. 339, 349-350 (1958); Costello v. United States, 350 U. S. 359, 363 (1956); Hoffman v. United States, 341 U. S. 479, 485 (1951). But we find that it is not necessary for us to determine this question; for even if due process would require a State to furnish an unbiased body once it resorted to grand jury procedure—a question upon which we do not remotely intimate any view—we have concluded that Washington, so far as is shown by the record, did so in this case. Petitioner's appearance before the Senate Committee was current news of high national interest and quite normally was widely publicized throughout the Nation, including his home city of Seattle and the State of Washington. His answers to and conduct before the Committee disclosed the possibility that he had committed local offenses within the jurisdiction of King County, Washington, against the laws of that State. In the light of those disclosures the King County authorities were duty-bound to investigate and, if the State's laws had been violated, to prosecute the offenders. It appears that documentary evidence—in the hands of petitioner's union—was necessary to a complete investigation. The only method available to secure such documents was by grand jury process, and it was decided therefore to impanel a grand jury. This Washington was free to do. Twenty-three prospective grand jurors were called. The trial judge explained, as is customary in such matters, that they had been called primarily to investigate possible crimes committed in King County by officers of the Teamsters Union which had been the subject of the Senate Committee hearings. In impaneling the grand jury the judge, after determining their statutory qualifications, businesses, union affiliations and the like, asked each of the prospective jurors: Is there anything about sitting on this grand jury that might embarrass you at all? In answer to this or the question of whether they were conscious of any prejudice or bias, which was asked whenever previous answers suggested a need for further inquiry, two admitted they were prejudiced by the publicity and were excused. Another stated that whether he was prejudiced was pretty hard to answer, and he, too, was excused. In addition three persons who were or had been members of unions that were affiliated with petitioner's union were excused. The remaining 17 were accepted and sworn as grand jurors and as a part of the oath swore that they would not present [any] person through envy, hatred or malice. Among them were a retired city employee who had been a Teamsters, the manager of a real estate office, a bookkeeper, an engineer, an airplane manufacturer's employee, a seamstress whose husband was a union member, a material inspector, a gravel company superintendent who was a former Teamsters Union member, a civil engineer with the State Department of Fisheries, and an engineer for a gyroscope manufacturer. In his charge to the grand jury the trial judge explained that its function is to inquire into the commission of crime in the county, that ordinarily this was done by the regularly established law enforcement agencies, but that this was impossible here because further investigation was necessary requiring the attendance of witnesses and the examination of books and records which a prosecutor had no power to compel. As to the purpose for which it was called, he explained that disclosures by the Senate Investigating Committee indicated hundreds of thousands of dollars of the funds of the Teamsters Union had been embezzled or stolen by its officers. He also stated that the president of the Teamsters had publicly declared that the money he had received was a loan. This presents a question of fact, he added, the truth of which is for you to ascertain. After mentioning other accusations he concluded, I urge you to do all that you can within practical limitations to ascertain the truth or falsity of these charges. . . . You have a most serious task to perform . . . . It is a tremendous responsibility, and I wish you well in your work. It is true that the judge did not admonish the grand jurors to disregard or disbelieve news reports and publicity concerning petitioner. Nor did he mention or explain the effect of the invocation of the Fifth Amendment by petitioner before the Committee or inquire as to the politics of any panel member. Discussion along such lines might well have added fuel to the flames which some see here. Apparently sensing this dilemma the judge admonished the grand jury that its function was to inquire into the commission of crime in the county and that it was to conduct an examination of witnesses as well as books and records. Twice in his short statement he said that it was for the grand jury to determine whether the charges were true or false. Taking the instructions as a whole, they made manifest that the jurors were to sift the charges by careful investigation, interrogation of witnesses, and examination of records, not by newspaper stories. In the light of these facts and on the attack made we cannot say that the grand jury was biased. It was chosen from the regular jury list. Some six months thereafter a petit jury to try this case was selected from the same community and, as will hereafter be shown, was not found to be prejudiced. Indeed, every judge who passed on the issue in the State's courts, including its highest court, has so held. A look at the grand jury through the record reveals that it was composed of people from all walks of life, some of whom were former union members. The judge immediately and in the presence of all of the panel eliminated six prospective grand jurors when indications of prejudice appeared. No grand juror personally knew petitioner or was shown to be adverse to the institutions with which petitioner is generally identified. Every person who was selected on the grand jury took an oath that he would not indict any person through hatred or malice. Moreover, the grand jury sat for six weeks before any indictment was returned against petitioner. The record also indicates that it heard voluminous testimony on the charges that had been made against petitioner and others and that it gave the matter most meticulous and careful consideration. We therefore conclude that petitioner has failed to show that the body which indicted him was biased or prejudiced against him. In addition to the above due process contention three equal protection arguments are made by petitioner or suggested on his behalf. First, petitioner argues he is a member of a class (Teamsters) that was not accorded equal treatment in grand jury proceedings. The contention is based on references to the Teamsters by the judge impaneling the grand jury as he conducted the voir dire and explained the scope of the investigation. The complete answer to petitioner's argument is that references to the Teamsters were necessary in the voir dire to eliminate persons who might be prejudiced for or against petitioner and in the instructions to explain the purpose and scope of this special body. Petitioner has totally failed to establish that non-Teamsters who are members of groups under investigation are given any different treatment. Secondly, it is said that the Washington statute permitting persons in custody to challenge grand jurors, Revised Code of Washington § 10.28.030, denies equal protection to persons not in custody who are investigated by grand juries. This point is not properly before this Court. Although both opinions of the Washington Supreme Court discuss the interpretation of § 10.28.030, neither considered that question in light of the equal protection argument for that argument was never properly presented to the court in relation to this statute. The Washington Supreme Court has unfailingly refused to consider constitutional attacks upon statutes not made in the trial court, even where the constitutional claims arise from the trial court's interpretation of the challenged statute. E. g., Johnson v. Seattle, 50 Wash. 2d 543, 313 P. 2d 676 (1957). [2] Petitioner's formal attack at the trial court level did not even mention § 10.28.030, much less argue that a restrictive interpretation would be unconstitutional under the Equal Protection Clause. [3] That the prosecution and the court viewed petitioner as outside the scope of § 10.28.030 was brought home to him in the course of the trial court proceedings on his grand jury attack. But even then petitioner did not suggest that constitutional considerations might compel a different result. The failure to inject the equal protection contention into the case was carried forward to the proceedings before the Washington Supreme Court when petitioner failed to comply with that court's rule prescribing the manner in which contentions are to be brought to its attention. Rule 43 of the Rules on Appeal, Revised Code of Washington, provides that [n]o alleged error of the superior court will be considered by this court unless the same be definitely pointed out in the `assignments of error' in appellant's brief. Mere generalized attacks upon the validity of the holding below as petitioner made in his assignments of error [4] are not considered by reason of this rule sufficient to invoke review of the underlying contentions. See, e. g., Washington v. Tanzymore, 54 Wash. 2d 290, 292, 340 P. 2d 178, 179 (1959); Fowles v. Sweeney, 41 Wash. 2d 182, 188, 248 P. 2d 400, 403, (1952). Nor will the Washington Supreme Court search through the brief proper to find specific contentions which should have been listed within the assignments of error. See Washington ex rel. Linden v. Bunge, 192 Wash. 245, 251, 73 P. 2d 516, 518-519 (1937). Moreover, the failure of petitioner to argue the constitutional contention in his brief, as opposed to merely setting it forth as he did in one sentence of his 125-page brief, is considered by the Washington Supreme Court to be an abandonment or waiver of such contention. E. g., Martin v. J. C. Penney Co., 50 Wash. 2d 560, 565, 313 P. 2d 689, 693 (1957); Washington v. Williams, 49 Wash. 2d 354, 356-357, 301 P. 2d 769, 770 (1956). Nor was the equal protection contention made at all in the petitions for rehearing filed after the Supreme Court had agreed with the lower court's interpretation of the statute to exclude petitioner. Assuming arguendo that for the purposes of our jurisdiction the question would have been timely if raised in a petition for rehearing, not having been raised there or elsewhere or actually decided by the Washington Supreme Court, the argument cannot be entertained here under an unbroken line of precedent. E. g., Ferguson v. Georgia, 365 U. S. 570, 572 (1961); Capital City Dairy Co. v. Ohio, 183 U. S. 238, 248 (1902). Furthermore, it was not within the scope of the questions to which the writ of certiorari in this case was specifically limited, 365 U. S. 866, and for this additional reason cannot now be presented. The final argument under the Equal Protection Clause is that Washington has singled out petitioner for special treatment by denying him the procedural safeguards the law affords others to insure an unbiased grand jury. But this reasoning proceeds on the wholly unsupported assumption that such procedures have been required in Washington in all other cases. [5] Moreover, it is contrary to the underlying finding of the Superior Court, in denying the motion to dismiss the indictment, that the grand jurors were lawfully selected and instructed. And even if we were to assume that Washington law requires such procedural safeguards, the petitioner's argument here comes down to a contention that Washington law was misapplied. Such misapplication cannot be shown to be an invidious discrimination. We have said time and again that the Fourteenth Amendment does not assure uniformity of judicial decisions . . . [or] immunity from judicial error . . . . Milwaukee Electric Ry. & Light Co. v. Wisconsin ex rel. Milwaukee, 252 U. S. 100, 106 (1920). Were it otherwise, every alleged misapplication of state law would constitute a federal constitutional question. Finally, were we to vacate this conviction because of a failure to follow certain procedures although it has not been shown that their ultimate end—a fair grand jury proceeding—was not obtained, we would be exalting form over substance contrary to our previous application of the Equal Protection Clause, e. g., Graham v. West Virginia, 224 U. S. 616, 630 (1912). Petitioner also contends that a witness before the grand jury was improperly interrogated in a manner which prejudiced his case before that body. It appears that an employee of petitioner's union was called before the grand jury to testify in reference to activities within his employment. During his first appearance he made statements which he subsequently changed on a voluntary reappearance before the grand jury some two days before the indictment was returned. On the second appearance the prosecutor attacked the witness' changed story as incredible and warned him that he was under oath, that he might be prosecuted for perjury, and that there was no occasion for him to go to jail for petitioner. The record indicates that the prosecutor became incensed over the witness' new story; and though some of his threats were out of bounds, it appears that they had no effect upon the witness whatsoever for he stuck to his story. We can find no irregularity of constitutional proportions, and we therefore reject this contention.",the objections to the grand jury proceedings.
+443,106391,1,3,"As in his grand jury attack, petitioner makes no claim that any particular petit juror was biased. Instead, he states the publicity which prevented the selection of a fair grand jury also precluded a fair petit jury. He argues that such a strong case of adverse publicity has been proved that any jury selected in Seattle at the time he was tried must be held to be presumptively biased and that the trial court's adverse rulings on his motions for a change of venue and for continuances were therefore in error. Of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury. Hence, our inquiry is addressed to that subject. Petitioner's trial began early in December. This was nine and one-half months after he was first called before the Senate Committee and almost five months after his indictment. Although there was some adverse publicity during the latter period which stemmed from the second tax indictment and later Senate hearings as well as from the trial of petitioner's son, it was neither intensive nor extensive. The news value of the original disclosures was diminished, and the items were often relegated to the inner pages. Even the occasional front-page items were straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness. If there was a campaign against him as petitioner infers, it was sidetracked by the appearance of other labor bosses on the scene who shared the spotlight. The process of selecting a jury began with the exclusion from the panel of all persons summoned as prospective jurors in the November 12 trial of Dave Beck, Jr. In addition, all persons were excused who were in the courtroom at any time during the trial of that case. Next, the members were examined by the court and counsel at length. Of the 52 so examined, only eight admitted bias or a preformed opinion as to petitioner's guilt and six others suggested they might be biased or might have formed an opinion—all of whom were excused. Every juror challenged for cause by petitioner's counsel was excused; in addition petitioner was given six peremptory challenges, all of which were exercised. Although most of the persons thus selected for the trial jury had been exposed to some of the publicity related above, each indicated that he was not biased, that he had formed no opinion as to petitioner's guilt which would require evidence to remove, and that he would enter the trial with an open mind disregarding anything he had read on the case. A study of the voir dire indicates clearly that each juror's qualifications as to impartiality far exceeded the minimum standards this Court established in its earlier cases as well as in Irvin v. Dowd, 366 U. S. 717 (1961), on which petitioner depends. There we stated: To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Id., at 723. We cannot say the pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that a court could not believe the answers of the jurors and would be compelled to find bias or preformed opinion as a matter of law. Compare Irvin v. Dowd, supra, at 723-728, where sensational publicity adverse to the accused permeated the small town in which he was tried, the voir dire examination indicated that 90% of 370 prospective jurors and two-thirds of those seated on the jury had an opinion as to guilt, and the accused unsuccessfully challenged for cause several persons accepted on the jury. The fact that petitioner did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt. In addition, we note that while the Washington Supreme Court was divided on the question of the right of an accused to an impartial grand jury, the denial of the petitioner's motions based on the bias and prejudice of the petit jury did not raise a single dissenting voice. While this Court stands ready to correct violations of constitutional rights, it also holds that `it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.'  United States ex rel. Darcy v. Handy, 351 U. S. 454, 462 (1956). This burden has not been met. Affirmed. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case.",the objections as to the petit jury.
+444,88567,1,1,"First . By the distinction made by the court between the motive or inducement for giving the note, and the consideration of the note; and, Secondly . (If the distinction were a sound one) in applying it to the contingency of a present existing debt from Philpot and Picket or Philpot, Sherman & Co., whereas it should have been confined to a present existing indebtedness from Philpot, Sherman & Co. As to the latter proposition—— Assuming that the jury might have fairly found that there was a debt of $3500 from Philpot and Picket only for the well purchased on the 19th of October, 1864, yet, as to Sherman, who did not owe the debt, what possible motive could he have for becoming liable to Gruninger for this debt? 'The execution of this agreement by Gruninger,' says the court. Then, if without that agreement he would not have been induced to put the debt in that shape, it follows that such agreement was, as to him , the consideration of the note. As to Sherman, therefore, especially, this distinction between the motive or inducement and the consideration, if well founded in any case, was inapplicable to the facts in evidence, and was, therefore, well calculated to, and in fact did, mislead the jury. Then, as to our first proposition, that the distinction made by the court, in view of the evidence in this case, between the consideration of the note and the motive or inducement operating to cause defendants to give it, misled the jury. There was obviously controversy between Gruninger and defendants just previous to and at the time this note was given, as to the sale of the well on the Blood Farm. Concede that the evidence is insufficient to show that it was worthless, and that on the whole the defendants were lawfully indebted to Gruninger $3500 for it, but in good faith thought otherwise and refused payment or would only consent to pay or execute the note in question, provided Gruninger would agree to go into and put his property into the proposed new company. Now, says the court to the jury: 'It may well happen that A. may owe a valid debt to B., and B. may say to A., 'If you will put the debt in the shape of a note I will do some act for you;' and then, when it is so done, the promise to put the debt in that shape is not the consideration of that note, but the debt which is due from one to the other.' This was put by way of illustration, to show the distinction between the consideration and the motive or inducement. If this distinction is known to the books, it can only apply to such a case as this put by the court, where A. owes a valid debt to B. and does not dispute it, but it could never apply to a case where, although A. owed a valid debt to B., he believed otherwise and denied it, and B. in order to induce A. to give him an acknowledgment of it in the shape of a promissory note, promises on his part to do some other thing. In such case, while the valid debt may be in part the consideration of the note, it is not the whole consideration, and to allow B. to repudiate his promise and sue and recover on that note would be to encourage fraud. II. We submit also that the court erred in excluding from the consideration of the jury the articles of copartnership between Philpot, Sherman, and Picket. Mr. O. K. Hutchings, contra .",The jury were misled in view of the evidence in this case
+445,110753,1,1,"
+In this reverse discrimination action, petitioner, an employee of the Florida International University, brought suit under 42 U. S. C. § 1983 against the Board of Regents of the State of Florida. [2] She did not name the individual Regents as defendants. She sued for $500,000 in damages, and for injunctive and other equitable relief. See ante, at 498-499, n. 2. The Board filed a motion to dismiss, arguing that petitioner's suit was premature in light of her failure to exhaust available administrative remedies. The District Court agreed and granted the motion to dismiss. On petitioner's appeal, the Board added the bar of the Eleventh Amendment to its defense. [3] It argued that as an instrumentality of the State, the Board could not be subjected to suit in federal court absent a waiver of immunity. [4] And it asserted that there had been no waiver. Although the Board of Regents was created as a body corporate with power to sue and be sued . . . to plead and be impleaded in all courts of law and equity, Fla. Stat. § 240.205(4)(1) (1981), it is well established that language such as this does not operate to waive the defense of the Eleventh Amendment. [5] In reply, petitioner argued that whether or not the statute creating the Board amounted to a waiver — and petitioner believed that it did — the Eleventh Amendment simply was irrelevant to the equitable claims she had lodged against the State. See Reply Brief for Petitioner 3-4. Neither the Court of Appeals panel nor the Court of Appeals en banc addressed the Board's Eleventh Amendment defense. They directed their attention solely to the question of exhaustion of administrative remedies. The panel held that there was no exhaustion requirement in § 1983 suits and remanded to the District Court for consideration of the Board's Eleventh Amendment argument. Patsy v. Florida International University, 612 F. 2d 946 (1980). The Court of Appeals, sitting en banc, reversed, holding that § 1983 plaintiffs must exhaust available and reasonable administrative remedies. Patsy v. Florida International University, 634 F. 2d 900 (1981). Again the court did not consider the Board's Eleventh Amendment defense. The Eleventh Amendment question was raised before this Court, at the first opportunity after the Court of Appeals' decision, in the Board's response to the petition for writ of certiorari. The Board argued, as it had on appeal, that it was an arm of the State and that it had not waived its immunity from suit in federal court. [6] Again petitioner answered that at most the Eleventh Amendment defense would bar her claim for damages. And, even as to this claim, petitioner now argued that the Amendment would not bar damages if the Board could meet the claim out of its own funds — e. g., from gifts and bequests — rather than from the state treasury. These arguments were repeated at oral argument. [7]
+The Court views the jurisdictional question presented by the Eleventh Amendment as if it were of little or no importance. Its entire discussion of the question is relegated to a conclusory note at the end of the opinion. See ante, at 515-516, n. 19. The Court concedes that the Amendment and the bar of sovereign immunity are jurisdictional, but only in the sense that the State may raise the claim at any point in the proceedings. The statement is then made that the Amendment is not jurisdictional in the sense that it must be raised and decided by this Court on its own motion. Ibid. [8] The Court cites to no authority in support of this statement, [9] and it would be surprising if any existed. The reason that the Eleventh Amendment question may be raised at any point in the proceedings is precisely because it places limits on the basic authority of federal courts to entertain suits against a State. The history and text of the Eleventh Amendment, the principle of sovereign immunity exemplified by it, and the well-established precedents of this Court make clear that today's decision misconceives our jurisdiction and the purpose of this Amendment. A basic principle of our constitutional system is that the federal courts are courts of limited jurisdiction. Their authority extends only to those matters within the judicial power of the United States as defined by the Constitution. In language that could not be clearer, the Eleventh Amendment removes from the judicial power, as set forth in Art. III, suits commenced or prosecuted against one of the United States. When an Amendment to the Constitution states in plain language that the judicial power of the United States shall not be construed to extend to suits against a State, from what source does the Court today derive its jurisdiction? The Court's back-of-the-hand treatment of this threshold issue offers no answer. Questions of jurisdiction and of the legitimate exercise of power are fundamental in our federal constitutional system. [10]
+The Eleventh Amendment was adopted as a response to this Court's assumption of original jurisdiction in a suit brought against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419 (1793). Relying upon express language in Art. III extending the judicial power to controversies between a State and citizens of another State, the Court found that it had jurisdiction. The decision is said to have created a shock throughout the country. See Hans v. Louisiana, 134 U. S. 1, 11 (1890). The Amendment was adopted shortly thereafter, and the Court understood that it had been overruled:  `the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizens of another State, or by citizens or subjects of any foreign state.'  Ibid. In light of the history and wording of the Amendment, the Court has viewed the Amendment as placing explicit limits on the judicial power as defined by Art. III. See Nevada v. Hall, 440 U. S. 410, 421 (1979). But more than that, and beyond the express provisions of the Amendment, the Court has recognized that the Amendment stands for a principle of sovereign immunity by which the grant of authority in Art. III itself must be measured. [11] Thus, in Hans v. Louisiana, supra , the Court held that the federal judicial power did not extend to a suit against a nonconsenting State by one of its own citizens. Although the Eleventh Amendment by its terms does not apply to such suits, the Court found that the language of the Amendment was but an illustration of a larger principle: Federal jurisdiction over suits against a State, absent consent, was not contemplated by the Constitution when establishing the judicial power of the United States. Id., at 15. [12] See Smith v. Reeves, 178 U. S. 436 (1900). Similarly, in Ex parte New York, 256 U. S. 490 (1921), the Court found that despite the Eleventh Amendment's specific reference to suits in law or equity, the principle of sovereign immunity exemplified by the Amendment would not permit the extension of federal admiralty jurisdiction over a nonconsenting State. The Court applied the same approach in Monaco v. Mississippi, 292 U. S. 313 (1934), in which the Court refused to take jurisdiction over a suit against a State by a foreign state. On its face, Art. III provided jurisdiction over suits between a State . . . and foreign States. Nor did the Eleventh Amendment specifically exempt the States from suit by a foreign state. Nevertheless, the Court concluded that the judicial power of the United States, granted by Art. III, did not extend so far: We think that Madison correctly interpreted Clause one of § 2 of Article III of the Constitution as making provision for jurisdiction of a suit against a State by a foreign State in the event of the State's consent but not otherwise. Id., at 330. In this case a resident of the State of Florida has sued a Board exercising a major function of the State's sovereign authority. As prior decisions have held, whether this case is viewed only under the Eleventh Amendment — with its explicit limitation on federal jurisdiction — or under Art. III, the analysis must be the same. Absent consent, the judicial power of the United States, as defined by Art. III and the Eleventh Amendment, simply does not extend to suits against one of the States by a citizen of that State: [13] That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification. Ex parte New York, supra, at 497 (emphasis added). The Court does not distinguish these unquestioned precedents. They are wholly and inexplicably ignored. Quite simply the Court today disregards controlling decisions and the explicit limitation on federal-court jurisdiction in Art. III and the Eleventh Amendment. The Court does recognize that the Eleventh Amendment is jurisdictional in the sense that the State may raise the bar of the Amendment for the first time on appeal. Yet the Court misses the point of this statement. The reason that the bar of the Amendment may be raised at any time — as the Court previously has explained — is precisely because it is jurisdictional: The objection to petitioner's suit as a violation of the Eleventh Amendment was first made and argued . . . in this Court. This was in time, however. The Eleventh Amendment declares a policy and sets forth an explicit limitation on federal judicial power of such compelling force that this Court will consider the issue arising under this Amendment . . . even though urged for the first time in this Court. Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459, 467 (1945). [14] Despite these precedents, and apparently because of an unexplained anxiety to reach the exhaustion issue decided by the Court of Appeals, this Court remands the issue of its own jurisdiction to the courts below.
+I believe that the Eleventh Amendment question must be addressed and that the answer could hardly be clearer. This is an action under § 1983. [15] Petitioner seeks relief from the Board of Regents of the State of Florida, a major instrumentality or agency of the State. Petitioner's argument that the statute incorporating the Board should be understood to waive the Eleventh Amendment is foreclosed by numerous decisions of this Court and is unsupported by State law. See, e. g., Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981); n. 5, supra. Similarly, petitioner's suggestion that the Eleventh Amendment does not bar her equitable claims against the Board must be rejected. The Amendment applies to suits in law or equity. All suits against an unconsenting State — whether for damages or injunctive relief — are barred. See Cory v. White, ante, p. 85. [16] Finally, the rule in Ex parte Young, 209 U. S. 123 (1908), permitting a federal court to order state officials to obey federal law in the future, is simply irrelevant to this case. [17] Petitioner did not sue the members of the Board of Regents. She sued the Board itself, an arm of the State of Florida. In my view, the Eleventh Amendment — and the principle of sovereign immunity exemplified by the Amendment and embodied in Art. III — clearly bar the suit in this case. The Court's refusal to address the question of its own jurisdiction violates well-established precedents of this Court as well as the basic premise that federal courts are courts of limited jurisdiction. Even had the parties neglected to address the Eleventh Amendment question, it would have been our responsibility to consider it on our own motion. In fact, the question has been fully briefed to the Court of Appeals and raised in this Court. See n. 8, supra. Cf. Sosna v. Iowa, 419 U. S. 393, 396, n. 2 (1975). I would dismiss this suit and vacate the decision of the Court of Appeals for lack of jurisdiction.",The Eleventh Amendment.[1]
+446,110753,1,2,"In view of my belief that this case should be dismissed on jurisdictional grounds, I address the exhaustion question only briefly. Seventeen judges joined in the Court of Appeals' persuasive opinion adopting a rule of flexible exhaustion of administrative remedies in § 1983 suits. Other Courts of Appeals have adopted a similar rule. See, e. g., Eisen v. Eastman, 421 F. 2d 560 (CA2 1969); Secret v. Brierton, 584 F. 2d 823 (CA7 1978). The opinion for the en banc court carefully reviewed the exhaustion doctrine in general and as applied to § 1983 actions. It found that the prior decisions of this Court did not clearly decide the question. [18] See Barry v. Barchi, 443 U. S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U. S. 564, 575, n. 14 (1973). And it concluded that the exhaustion of adequate and appropriate state administrative remedies would promote the achievement of the rights protected by § 1983. I agree with the Court of Appeals' opinion. The requirement that a § 1983 plaintiff exhaust adequate state administrative remedies was the accepted rule of law until quite recently. See Eisen v. Eastman, supra, at 567. The rule rests on sound considerations. It does not defeat federal-court jurisdiction, it merely defers it. [19] It permits the States to correct violations through their own procedures, and it encourages the establishment of such procedures. It is consistent with the principles of comity that apply whenever federal courts are asked to review state action or supersede state proceedings. See Younger v. Harris, 401 U. S. 37 (1971). Moreover, and highly relevant to the effective functioning of the overburdened federal court system, the rule conserves and supplements scarce judicial resources. In 1961, the year that Monroe v. Pape, 365 U. S. 167, was decided, only 270 civil rights actions were begun in the federal district courts. Annual Report of the Director of the Administrative Office of the U. S. Courts, 238 (1961). In 1981, over 30,000 such suits were commenced. [20] Annual Report of the Director of the Administrative Office of the U. S. Courts 63, 68 (1981). The result of this unprecedented increase in civil rights litigation is a heavy burden on the federal courts to the detriment of all federal-court litigants, including others who assert that their constitutional rights have been infringed. The Court argues that past decisions of the Court categorically hold that there is no exhaustion requirement in § 1983 suits. But as the Court of Appeals demonstrates, and as the Court recognizes, many of these decisions can be explained as applications of traditional exceptions to the exhaustion requirement. See McNeese v. Board of Education, 373 U. S. 668 (1963). Other decisions speak to the question in an offhand and conclusory fashion without full briefing and argument. See Wilwording v. Swenson, 404 U. S. 249, 251 (1971) (unargued per curiam ); Damico v. California, 389 U. S. 416 (1967) (unargued per curiam ). Moreover, a categorical no-exhaustion rule would seem inconsistent with the decision in Younger v. Harris, supra , prescribing abstention when state criminal proceedings are pending. At least where administrative proceedings are pending, Younger would seem to suggest the appropriateness of exhaustion. Cf. Gibson v. Berryhill, supra, at 574-575. Yet the Court today adopts a flat rule without exception. The Court seeks to support its no-exhaustion rule with indications of congressional intent. Finding nothing directly on point in the history of the Civil Rights Act itself, the Court places primary reliance on the recent Civil Rights of Institutionalized Persons Act, 42 U. S. C. § 1997 et seq. (1976 ed., Supp. IV). This legislation was designed to authorize the Attorney General to initiate civil rights actions on behalf of institutionalized persons. § 1997a. The Act also placed certain limits on the existing authority of the Attorney General to intervene in suits begun by institutionalized persons. See § 1997c. In addition, in § 1997e, the Act sets forth an exhaustion requirement but only for § 1983 claims brought by prisoners. On the basis of the exhaustion provision in § 1997e, and remarks primarily by Representative Kastenmeier, the Court contends that Congress has endorsed a general no-exhaustion rule. The irony in this reasoning should be obvious. A principal concern that prompted the Department of Justice to support, and the Congress to adopt, § 1997e was the vast increase in § 1983 suits brought by state prisoners in federal courts. There has been a year-by-year increase in these suits since the mid-1960's. The increase in fiscal 1981 over fiscal 1980 was some 26%, resulting in a total of 15,639 such suits filed in 1981 as compared with 12, 397 in 1980. The 1981 total constituted over 8.6% of the total federal district court civil docket. Although most of these cases present frivolous claims, many are litigated through the courts of appeals to this Court. The burden on the system fairly can be described as enormous with few, if any, benefits that would not be available in meritorious cases if exhaustion of appropriate state administrative remedies were required prior to any federal-court litigation. It was primarily this problem that prompted enactment of § 1997e. [21] Moreover, it is clear from the legislative history that Congress simply was not addressing the exhaustion problem in any general fashion. The concern focused on the problem of prisoner petitions. The new Act had a dual purpose in this respect. In addition to requiring prior exhaustion of adequate state remedies, Congress wished to authorize the Attorney General to act when necessary to protect the constitutional rights of prisoners, but at the same time minimize the need for federal action of any kind by requiring prior exhaustion. Both sponsors of the Act in the Senate made this clear. Senator Hatch explained § 1997e as follows: In actions relating to alleged violations of the constitutional rights of prisoners, such persons may be required to exhaust internal grievance procedures before the Attorney General can become involved pursuant to [the Act]. 126 Cong. Rec. 3716 (1980) (emphasis added). [22] Senator Bayh, the author of the Act, described the exhaustion provision in similar terms: [I]n the event of a prison inmate's rights being alleged to be violated . . . then before the Justice Department could intervene or initiate suits, the prison inmate or class of inmates would have to pursue all of their administrative remedies within the State law before the Justice Department could intervene under the provisions of [the Act]. Id., at 3970. In short, in enacting the Civil Rights of Institutionalized Persons Act Congress was focusing on the powers of the Attorney General, and the particular question of prisoners' suits, not on the general question of exhaustion in § 1983 actions. Also revealing as to the limited purpose of § 1997e is Congress' consistent refusal to adopt legislation imposing a general no-exhaustion requirement. Thus, for example, in 1979, a bill was introduced into the Senate providing: No court of the United States shall stay or dismiss any civil action brought under this Act on the ground that the party bringing such action failed to exhaust the remedies available in the courts or the administrative agencies of any State. S. 1983, 96th Cong., 1st Sess., § 5 (1979). The bill was never reported out of committee. The requirement that plaintiffs exhaust available and adequate administrative remedies — subject to well-developed exceptions — is firmly established in virtually every area of the law. This is dictated in § 1983 actions by common sense, as well as by comity and federalism, where adequate state administrative remedies are available. If the exhaustion question were properly before us, I would affirm the Court of Appeals.",Exhaustion of Remedies.
+447,112641,1,2,"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Despite the narrowness of its terms, since Hans v. Louisiana, 134 U. S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468, 472 (1987) (plurality opinion); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 290-294 (1973) (MARSHALL, J., concurring in result); and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the plan of the convention. See Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 304 (1990); Welch, supra, at 474 (plurality opinion); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238 (1985); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Respondents do not ask us to revisit Hans; instead they argue that the traditional principles of immunity presumed by Hans do not apply to suits by sovereigns like Indian tribes. And even if they did, respondents contend, the States have consented to suits by tribes in the plan of the convention. We consider these points in turn. In arguing that sovereign immunity does not restrict suit by Indian tribes, respondents submit, first, that sovereign immunity only restricts suits by individuals against sovereigns, not by sovereigns against sovereigns, and as we have recognized, Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U. S. 505, 509 (1991), Indian tribes are sovereigns. Respondents' conception of the nature of sovereign immunity finds some support both in the apparent understanding of the Founders and in dicta of our own opinions. [1] But whatever the reach or meaning of these early statements, the notion that traditional principles of sovereign immunity only restrict suits by individuals was rejected in Principality of Monaco v. Mississippi, 292 U. S. 313 (1934). It is with that opinion, and the conception of sovereignty that it embraces, that we must begin. In Monaco, the Principality had come into possession of Mississippi state bonds, and had sued Mississippi in federal court to recover amounts due under those bonds. Mississippi defended on grounds of the Eleventh Amendment, among others. Had respondents' understanding of sovereign immunity been the Court's, the Eleventh Amendment would not have limited the otherwise clear grant of jurisdiction in Article III to hear controversies between a State ... and foreign States. But we held that it did. Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. ... There is ... the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a `surrender of this immunity in the plan of the convention.' The Federalist, No. 81. Monaco, supra, at 322-323 (footnote omitted). Our clear assumption in Monaco was that sovereign immunity extends against both individuals and sovereigns, so that there must be found inherent in the plan of the convention a surrender by the States of immunity as to either. Because we perceived in the plan no ground upon which it can be said that any waiver or consent by a State of the Union has run in favor of a foreign State, id., at 330, we concluded that foreign states were still subject to the immunity of the States. We pursue the same inquiry in the present case, and thus confront respondents' second contention: that the States waived their immunity against Indian tribes when they adopted the Constitution. Just as in Monaco with regard to foreign sovereigns, so also here with regard to Indian tribes, there is no compelling evidence that the Founders thought such a surrender inherent in the constitutional compact. [2] We have hitherto found a surrender of immunity against particular litigants in only two contexts: suits by sister States, South Dakota v. North Carolina, 192 U. S. 286, 318 (1904), and suits by the United States, United States v. Texas, 143 U. S. 621 (1892). We have not found a surrender by the United States to suit by the States, Kansas v. United States, 204 U. S. 331, 342 (1907); see Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1, 79-80 (1988), nor, again, a surrender by the States to suit by foreign sovereigns, Monaco, supra. Respondents argne that Indian tribes are more like States than foreign sovereigns. That is true in some respects: They are, for example, domestic. The relevant difference between States and foreign sovereigns, however, is not domesticity, but the role of each in the convention within which the surrender of immunity was for the former, but not for the latter, implicit. What makes the States' surrender of immunity from suit by sister States plausible is the mutuality of that concession. There is no such mutuality with either foreign sovereigns or Indian tribes. We have repeatedly held that Indian tribes enjoy immunity against suits by States, Potawatomi Tribe, supra, at 509, as it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. But if the convention could not surrender the tribes' immunity for the benefit of the States, we do not believe that it surrendered the States' immunity for the benefit of the tribes.",The Eleventh Amendment provides as follows:
+448,110093,1,2,"Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced. Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile upon proof of the presence of the machine gun and the hand weapon and proof that respondents occupied the automobile at the time such instruments were found. I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not more likely than not the possessors of those weapons. Under New York law, to possess is to have physical possession or otherwise to exercise dominion or control over tangible property. N. Y. Penal Law § 10.00 (8) (McKinney 1975). Plainly, the mere presence of an individual in an automobile—without more—does not indicate that he exercises dominion or control over everything within it. As the Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile. In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that [p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the [illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt—`the inference of the one from proof of the other is arbitrary . . . .' Tot v. United States, 319 U. S. 463, 467. United States v. Romano, 382 U. S., at 141. We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society. I cannot say that the presumption charged is more likely than not to be true. Accordingly, respondents' due process rights were violated by the presumption's use. As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts proved by the prosecution as well. The Court suggests that this is the proper approach when reviewing what it calls permissive presumptions because the jury was urged to consider all the circumstances tending to support or contradict the inference. Ante, at 162. It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence in the automobile. [7] Ante, at 159 n. 16. The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the permissive presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored. I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile. [8] For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case. See Bollenbach v. United States, 326 U. S. 607, 613 (1946); cf. Leary v. United States, 395 U. S., at 31. The Court's novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court's analysis, whenever it is determined that an inference is permissive, the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner. Quite the contrary, the Court has required that the evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact . . . . Barnes v. United States, 412 U. S., at 843 (emphasis supplied). See Turner v. United States, 396 U. S. 398, 407 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents—an inference that is plainly irrational. In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference— no matter how irrational in itself—provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court— applying an unarticulated harmless-error standard—simply finds that the respondents were guilty as charged. They may well have been, but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant's right to a fair trial. Accordingly, I dissent.","In the present case, the jury was told:"
+449,106550,1,2,"(1) Testimony of witnesses contradict each other on the identification of the defendants. (2) Identification of clothes and weapons in error, no continuency of possession shown, nor ownership established, nor was ownership of these articles by the Defendants proven. (3) Testimony of many witnesses in direct conflict with each other and at times contradict each other, as to what happened and how it happened and by whom it was done. (4) That one witness perjured himself repeatedly and that his testimony was not stricken or thrown out. (5) That the presumption of innocence was never afforded the Defendants. (6) That the trial Judge was prejudiced against the Defendants throughout the entire trial. (7) That the trial Judge should have dismissed the case as the Defendants are not guilty as charged. (8) That exhibits were entered over objections that should not have been allowed to be entered. (9) That testimony was allowed over objections that should not have been allowed. (10) That Defendant was charged with robbing two specific companies that in fact were never proven to have been robbed. (11) That the Defendant was forced to sit at the same table with the two prosecutors and a policeman that was subpoenaed as a witness. (12) That after an order excluding witnesses from the courtroom the two main witnesses sat in the courtroom prior to testifying which had a substantial bearing on their testimony. (13) Unless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal. The Court places special emphasis on points 1, 2, 3, 4 and 7 as requiring considerably more than the Washington Supreme Court had before it if a constitutionally adequate review was to be afforded the petitioners. However, point 1 merely asserts contradictions in the testimony about the identification of the petitioners. Inconsistency in the evidence is no stranger to criminal trials and it is the task of the jury to sort out the testimony and determine the facts and the guilt or innocence of the defendants. A conflict of testimony presents but a mere question of fact, upon which the verdict of the jury is conclusive. It is enough to sustain the verdict that there was positive, direct testimony to the existence of the facts as found. Corinne Mill, Canal & Stock Co. v. Toponce, 152 U. S. 405, 408. See generally Galloway v. United States, 319 U. S. 372; Gunning v. Cooley, 281 U. S. 90. Accordingly, if a complete transcript of the trial had been placed before the Washington Supreme Court, the bare fact of inconsistency between witnesses would be quite beside the point. The governing question would be whether there was adequate evidence to support the jury's conclusion that the petitioners had indeed been identified and were guilty as charged. Here the record supplied shows that the accomplice Jennings identified the petitioners and this was even confirmed by his mother. Thus neither point 1 nor point 3 would raise any problem for an appellate review of the finding of guilt by the jury. Point 2 questions the admissibility of a gun and a jacket because of insufficient identification. But as petitioners' own attorney pointed out, the gun was identified by the accomplice Jennings, and petitioner Lorentzen's jacket was found in the get-away car which belonged to Lorentzen and was identified as looking like the one which Lorentzen wore during the commission of the crimes. The trial court ruled that the items had been adequately identified and were admissible under Washington law and that the objections of the defendants, as to the positiveness of the identification, went to the weight, rather than to the admissibility, of the evidence. The Supreme Court of Washington agreed. I doubt seriously the propriety and wisdom of questioning the judgment of the Washington Supreme Court as to what evidence is necessary to support the admissibility of an exhibit under Washington law. The Court apparently makes much of point 4, a general allegation of perjury, as not being intelligently reviewable upon the record made. This appears wholly untenable in the circumstances of this case. Here the trial was over, the evidence was concluded and the record closed. The jury had heard any attack the petitioners had to offer upon the credibility of the State's witnesses and had weighed the evidence and convicted the petitioners. A motion for a new trial had been denied. On the record made at the trial it was the jury's task to determine whether any witness was telling the truth and to accept or discard his testimony. The petitioners raised no issue of perjury at the trial or in their motion for a new trial. In these circumstances, it would take evidence outside the normal reporter's transcript to prove perjury, evidence which the trial court found they did not have, see United States v. Johnson, 327 U. S. 106, and evidence which could not be presented for the first time on direct appeal upon the record of a trial already made. [N]ew evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial. Mesarosh v. United States, 352 U. S. 1, 9; State v. Brooks, 89 Wash. 427, 154 P. 795. A reporter's transcript might help petitioners prove that perjury had been committed at their trial but such proof would have to be made, if at all, not on direct appeal, but in some other proceeding. Point 4 also shares the difficulties inherent in points 3, 8 and 9, all of which are blanket allegations lacking any specificity. It would seem that in order to make these general assertions at all, it was necessary for petitioners to have at least some specific instances in mind, but neither the petitioners nor their attorney in any way (except as point 2 illuminates point 8) brought to the court's attention any particular instances of the kind generally alleged in these points. These contentions placed nothing before the appellate court for review, see, e. g., Seaboard Air Line R. Co. v. Watson, 287 U. S. 86; Erdmann v. Henderson, 50 Wash. 2d 296, 311 P. 2d 423; Nordlund v. Pearson, 91 Wash. 358, 157 P. 875, and if they are not to be disregarded the net effect would be to require a complete transcript in every case, contrary to the Court's own standards and contrary to the rules of Woods v. Rhay, 54 Wash. 2d 36, 338 P. 2d 332, which the Court in general approves. As for point 7, which essentially challenges the sufficiency of the evidence to support a conviction, the trial court found the evidence overwhelming and the Washington Supreme Court considered the evidence in the record placed before it as wholly adequate. The findings of the trial court are attached as an Appendix, post, p. 509, and it is incredible to me that the Court would hold this statement of the evidence at the trial to be an insufficient record upon which to affirm a jury's conclusion that the petitioners were guilty of robbing two motels. The Washington Supreme Court determined as a matter of law that point 10 was without merit since to prove the crime in this case it was unnecessary to prove the existence of the corporation and the ownership of the money. See note 5 of the Court's opinion, ante, p. 496. Similarly, point 6 was untenable since the only ground for the assertion of prejudice was that the trial judge made rulings adverse to them at the trial and since the challenge for prejudice was neither within the time nor in the form required by Washington law. As to point 5, the trial court found that the jury was specifically instructed in two different instructions as to the presumption of innocence and the burden of proof, the jury also being further reminded by counsel of the presumption of innocence in the selection of the jury. The Supreme Court of Washington held that this was enough under Washington law. It is also readily apparent that the transcript demanded by petitioners would be of no aid at all in disposing of points 11 and 12, since a transcript would not show who was or was not in the courtroom or what prejudice, if any, was suffered by the defendants by being seated at the same table with the prosecutor, which physical arrangement is normal in the trial court which tried petitioners. Finally, it was found by the trial court that points 1, 3, 4, 5, 6, 11 and 12 were never presented to the trial court at any stage of the trial or judgment and sentence in any form or fashion and, therefore, as the Supreme Court of Washington ruled, even if these assignments were meritorious, our rules would preclude a consideration of them. I think the record was adequate in this case. If it could have been better, it should not pass without comment that it is normally the lot of the appellant to take the initiative in preparing and presenting a record for appeal. If petitioners' counsel could have been of more help in preparing this record—and this does not appear to have been true here—the petitioners themselves must shoulder the blame, since they repeatedly stated that they did not want the help of appointed counsel, giving no reason whatsoever other than that they desired to represent themselves. Petitioners were notified prior to the hearing on their motion for a transcript that trial counsel was available. Their immediate response to the judge was that they did not desire counsel's help and that they would represent themselves. Petitioner Draper repeated these assertions at the hearing. While the court gave Draper every opportunity to represent himself and the other petitioners in connection with making this record, he also required petitioners' trial counsel to be present to support the petitioners' position. This counsel did and it appears that both at the hearing and upon appeal where he orally argued, he placed his resources and abilities at the disposal of petitioners.",The errors alleged by petitioners were as follows:
+450,103985,1,5,"28 C. Hudgins, V. Harrison, C. Dinwiddie, R. L. Greene, W. Metcalf, E. Wales; cf. E. McCoy, H. H. Hall, D. Barbour. 29 Cf. note 20 supra; J. Kotsch, W. Prusman, C. McWilliams. 30 They agreed that the Missouri channel flowed around the island not far from the Burlington tracks, turning south at that point and flowing against the Kansas bluffs at Station 510. They also agreed that the Kansas channel was a chute. But they differed concerning its direction and location. Robinson placed it as running almost due south across the center of the island in a straight course. Gray placed the Kansas chute more to the west and with a curving course. Both testified that the Missouri channel was the main channel at that time. The inconsistency between Exhibit 46 and the testimony and drawings of Robinson and Gray may be accounted for in part, though not altogether, by the fact they were in the Bend for hunting and fishing purposes, chiefly in the fall, whereas Exhibit 46 was made from surveys in June and July. The difference in time, however, is hardly enough to account for the difference either in width or depth of the Kansas channel as shown by the exhibit and by their testimony. 31 Cf. notes 27-29 supra. 32 Cf. note 25 supra. 33 State of Missouri v. State of Kentucky, 11 Wall. 395, 20 L.Ed. 116; Davis v. Anderson-Tully Co., 8 Cir., 252 F. 681; Commissioners v. United States, 8 Cir., 270 F. 110. 34 Missouri apparently urges that even if the land formed as an island on the Kansas side, the process by which the main channel shifted from the eastern to the western channel and the former gradually filled with alluvial deposits thus connecting the island to the Missouri shore, entitles it to sovereignty over the disputed lands.","Muse, L. F. Stalcup; cf. A. P. Staver."
+451,111362,2,1,"By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. It was accepted that Indian nations held aboriginal title to lands they had inhabited from time immemorial. See Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947). The doctrine of discovery provided, however, that discovering nations held fee title to these lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign. [3] Oneida I, 414 U. S., at 667. See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 19-49 (1979). With the adoption of the Constitution, Indian relations became the exclusive province of federal law. Oneida I, supra, at 670 (citing Worcester v. Georgia, 6 Pet. 515, 561 (1832)). [4] From the first Indian claims presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the unquestioned right of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), and stated that the Indians' right of occupancy is as sacred as the fee simple of the whites. Mitchel v. United States, 9 Pet. 711, 746 (1835). This principle has been reaffirmed consistently. See also Fletcher v. Peck, 6 Cranch 87, 142-143 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Clark v. Smith, 13 Pet. 195, 201 (1839); Lattimer v. Poteet, 14 Pet. 4 (1840); Chouteau v. Molony, 16 How. 203 (1854); Holden v. Joy, 17 Wall. 211 (1872). Thus, as we concluded in Oneida I, the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case. 414 U. S., at 671 (emphasis in original). Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal commonlaw right to sue to enforce their aboriginal land rights. [5] In Johnson v. McIntosh, supra , the Court declared invalid two private purchases of Indian land that occurred in 1773 and 1775 without the Crown's consent. Subsequently in Marsh v. Brooks, 8 How. 223, 232 (1850), it was held: That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. McIntosh. More recently, the Court held that Indians have a common-law right of action for an accounting of all rents, issues and profits against trespassers on their land. United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941). [6] Finally, the Court's opinion in Oneida I implicitly assumed that the Oneidas could bring a common-law action to vindicate their aboriginal rights. Citing United States v. Santa Fe Pacific R. Co., supra, at 347, we noted that the Indians' right of occupancy need not be based on treaty, statute, or other formal Government action. 414 U. S., at 668-669. We stated that absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law. Id., at 674 (citing United States v. Forness, 125 F. 2d 928 (CA2), cert. denied sub nom. City of Salamanca v. United States, 316 U. S. 694 (1942)). In keeping with these well-established principles, we hold that the Oneidas can maintain this action for violation of their possessory rights based on federal common law.",Federal Common Law
+452,111362,2,2,"The dissent argues that we should apply the equitable doctrine of laches to hold that the Oneidas' claim is barred. Although it is far from clear that this defense is available in suits such as this one, [16] we do not reach this issue today. While petitioners argued at trial that the Oneidas were guilty of laches, the District Court ruled against them and they did not reassert this defense on appeal. As a result, the Court of Appeals did not rule on this claim, and we likewise decline to do so.",Laches
+453,111362,2,3,"Petitioners argue that any cause of action for violation of the Nonintercourse Act of 1793 abated when the statute expired. They note that Congress specifically provided that the 1793 Act would be in force for the term of two years, and from thence to the end of the then next session of Congress, and no longer. 1 Stat. 332, § 15. They contend that the 1796 version of the Nonintercourse Act repealed the 1793 version and enacted an entirely new statute, and that under the common-law abatement doctrine in effect at the time, any cause of action for violation of the statute finally abated on the expiration of the statute. [17] We disagree. The pertinent provision of the 1793 Act, § 8, like its predecessor, § 4 of the 1790 Act, 1 Stat. 138, merely codified the principle that a sovereign act was required to extinguish aboriginal title and thus that a conveyance without the sovereign's consent was void ab initio. See supra, at 233-234, and n. 3. All of the subsequent versions of the Nonintercourse Act, including that now in force, 25 U. S. C. § 177, contain substantially the same restraint on the alienation of Indian lands. In these circumstances, the precedents of this Court compel the conclusion that the Oneidas' cause of action has not abated. [18]",Abatement
+454,95754,1,1,"SEC. 37. Free sugar, exempt from the additional tax, may be exported to foreign countries in compliance with the rules heretofore existing; the exportation of such sugar requires, however, a permit from the excise office, which must be duly endorsed on the bill of lading, as set forth in sections 31 and 34 of these instructions. NOTE. — The mill owner is allowed to export free sugar (this rule does not apply to purchased sand or refined sugar produced from purchased sands) on account of his surplus for the same campaign. For this purpose the export is made in the manner hereinafter, in subdivisions 1 to 4 of section 38, set forth, except that the excise office notes on the certificate `free sugar,' and requires no security for the additional tax. Upon the return of the certificate with the custom-house export mark, the excise office credits the exported quantity of sugar to the free surplus of the mill, if such there be, and increases by a like quantity the allowance of free sugar, of which a memorandum and an entry in the book must be made. SEC. 38. In relation to exports of the free surplus (free reserve) of sugar from the mills, the following special order must be observed, in addition to the rules now in force. (1) The transport of sugar from the free reserves intended for export to foreign countries must be shipped in the presence of the excise authorities, who, after examining the transport, endorse on the bill of lading accompanying the same that said sugar has been removed from the free reserve for exportation abroad, and issue a separate certificate to the mill owner, setting forth the name of the mill, the bill of lading accompanying the transportation, and the statement of the weight of the sugar contained therein. (2) The additional tax, at the rate of roubles 1.75 per pood, chargeable to the exported sugar, must first be secured in full by cash, excise credit vouchers, or such funds as are accepted as security for the tobacco excise, or by the stock of sugar, free or of the free reserve, on hand in the factory, as set forth in section 30 of these instructions. (The 75 kopeck portion of the excise due on exported sugar is to be paid or secured in accordance with the rules now in force.) (3) The custom-house duly examines the exported shipment of the free surplus, the tare previously certified by the excise office being accepted at its actual weight as per bill of lading annexed to the export certificate. After forwarding the transport across the border, the custom-house delivers to the shipper, in lieu of refunding the excise, (not the additional tax, however,) a voucher crediting the same on his sugar excise account, and marks down by endorsement on the certificate of the excise office presented by him (subdivision 1) the time of export, the net weight of the exported sugar, and the credit voucher issued stating the amount of excise allowed. (4) The certificate with the endorsement of the custom-house must be returned by the mill owner to the excise office within six months from the date the sugar was shipped from the mill, whereupon the additional tax charged upon the exported sugar is remitted by the excise office, by a corresponding credit in proportion to the quantity of sugar exported, and the deposits securing the same are released. If the certificate is not returned within said time, or does not account for the full quantity of sugar which was to have been exported, then, upon the failure of the mill owner to pay within two weeks the additional tax due, the excise office must proceed with the collection thereof in regular manner. It thus appears that free sugar, which may be sold in Russia, at the normal excise of R. 1.75 per pood, may be exported under a permit from the excise office, and upon the return of the free sugar certificate with the custom-house export mark, the excise office credits the exported quantity of sugar to the free surplus of the mill. With the free surplus, however, which is subject not only to the normal excise of R. 1.75 per pood, but to an additional tax of the same amount, a somewhat different course is pursued. The additional tax chargeable to the exported sugar must first be secured in full cash or its equivalent, and an export certificate delivered, which must be returned by the mill owner to the excise office within six months, whereupon the additional tax is remitted by the excise office by a corresponding credit in proportion to the quantity of sugar exported. For the normal excise, a voucher crediting the same on the sugar excise account is delivered, as in the case of free sugar. The following facts were stipulated: 5. That the sugar which was imported in this case, and which is covered by this protest, consists of free sugar as above defined, and would have been subject to an excise tax of 1.75 roubles per pood if sold in Russia. 6. That upon the exportation of said sugar from Russia the Russian government, under its laws and regulations, released said sugar from said tax of 1.75 roubles either by a refund of the tax or a cancellation of the indebtedness, or otherwise. 7. That in addition to remitting said excise tax the government issued to the exporter a certificate certifying that he had exported such a quantity of so-called free sugar; that the said certificates have a substantial market value, and are transferable, and that the price thereof is usually determined by the difference existing at the time between the price obtainable for sugar on the home market and price abroad. 8. That said certificates are sold to and used by sugar manufacturers or refiners, who are thereby enabled to transfer from their free reserve, or free surplus, to their free sugar an amount of sugar equal to the amount shown by said certificates to have been exported, which amount may then be sold for domestic consumption on paying the ordinary tax of 1.75 roubles per pood (to which free sugar is regularly subject) instead of a tax of 3.50 roubles per pood. This appears to be the real function of the free sugar export certificate — to obtain a transfer of sugar from surplus to free sugar account. This free sugar export certificate being negotiable, any holder of the same is at liberty to call for the transfer of a like amount of sugar from surplus to free sugar account, and is thereby enabled to put his sugar upon the market at the normal excise instead of the double tax imposed upon surplus. By this arrangement neither the total amount of free sugar allowed to the two manufacturers nor the total export has been increased, since what the assignor exports the assignee sells as free sugar. The assignee, however, has secured the large profits of the sale of his sugar at home and saved his freight to the coast, while on the other hand the seaport merchant has sacrificed those profits by exporting his sugar at a less remunerative price. It follows that the price which the seaport manufacturer receives for his export certificate is the difference between what he would have received had he sold his free sugar at home and the price he would have obtained on the foreign market. For instance, if the price in the home market is R. 2.50 per pood, and in the foreign market R. 1.25, the certificate will be worth the difference between these two, and the exporter will receive the same gross amount as if he had not exported his free sugar, but had sold in the home market. Thus: By sale at home he obtains the market price ...... R. 2.50 By sale abroad he obtains the foreign market price .................................. R. 1.25 Also the price of certificate ............ R. 1.25 R. 2.50 In practice, of course, as in the case of all commodities, the market value of these certificates must vary according to the demand and supply, but the theory underlying the transaction is always this, that the exporter shall suffer no loss because he has exported his free sugar instead of selling it in the home market. It is practically admitted in this case that a bounty equal to the value of these certificates is paid by the Russian government, and the main argument of the petitioner is addressed to the proposition that this bounty is paid, not upon exportation, but upon production. The answer to this is that every bounty upon exportation must, to a certain extent, operate as a bounty upon production, since nothing can be exported which is not produced, and hence a bounty upon exportation, by creating a foreign demand, stimulates an increased production to the extent of such demand. Conversely, a bounty upon production operates to a certain extent as a bounty upon exportation, since it opens to the manufacturer a foreign market for his merchandise produced in excess of the demand at home. A protective tariff is the most familiar instance of this, since it enables the manufacturer to export the surplus for which there is no demand at home. If there were no tariff at all, and the expense of producing a certain article at home were materially greater than the expense of producing the same article abroad, there would be none produced, and, of course, none to export. But with the aid of such tariff production would be stimulated, and might become so much greater than the home demand, that a manufacturer would look to foreign markets for his surplus. In the case of Russian sugar the effect of the import duties is much enhanced by the fact that, the supply of free sugar from the home market being limited, the selling price is very remunerative, and each producer has therefore an interest in placing as much sugar as he can on the home market; and as the total amount of free sugar is distributed among all the manufactories in proportion to their entire production, it may become to their interest to export their surplus even at a loss, if such loss can be compensated by the profits on sugar sold in the home market. This would not make the tariff a bounty upon exportation, but a mere incident to its operation upon production. But, if a preference be given to merchandise exported over that sold in the home market, by the remission of an excise tax, the effect would be the same as if all such merchandise were taxed, and a drawback repaid to the manufacturer upon so much as he exported. If the additional bounty paid by Russia upon exported sugar were the result of a high protective tariff upon foreign sugar, and a further enhancement of prices by a limitation of the amount of free sugar put upon the market, we should regard the effect of such regulations as being simply a bounty upon production, although it might incidentally and remotely foster an increased exportation of sugar; but where in addition to that these regulations exempt sugar exported from excise taxation altogether, we think it clearly falls within the definition of an indirect bounty upon exportation. The argument of the petitioner in this connection is that, if a manufacturer sell his free sugar on the home market, he receives the home market price of, say, R. 2.50 per pood; whereas if he export his free sugar, he receives the foreign price, say, R. 1.25 and R. 1.25, the price of his export certificate. In other words, by exporting his `free sugar' and selling his export certificate, the exporter receives exactly the same amount he would have received had he sold his `free sugar' on the home market. All producers fare equally well before the law. Those who sell at home receive the high prices insured on the home market, while those who export what is the equivalent thereto: — the foreign market price plus the price of the export certificate. Hence there is no bounty on exportation, for the reward of the manufacturer is not conditioned on exportation, nor is it greater than it would have been had he not exported. Bounty on production this reward may be, but certainly not bounty on exportation, for it is a contradiction in terms to call that a bounty on exportation which is received in one form or another by all manufacturers alike, whether they export or do not export. It is true that when a manufacturer exports free sugar for account of surplus, and thereby avoids the necessity of giving security for the additional tax, he obtains an export certificate which he may use to obtain the transfer of an equal amount of surplus sugar to free sugar account. This right of issue of free sugar into the home market at the normal tax he transfers when he sells his export certificate. The certificate, however, none the less represents a bounty upon exportation, although it may be used for the purpose of obtaining a transfer of a certain amount of surplus sugar to the free sugar account for the home market. But the fact that he receives the same amount, whether the goods are exported or sold at home, is not the proper test whether a bounty is paid upon exportation. If no bounty at all were paid all sugar, or at least all free sugar, would pay the same tax, whether sold at home or exported abroad; and in this case the free sugar upon which the tax is remitted when exported would go abroad burdened with an excise tax of R. 1.75 per pood, which would prevent the manufacturer from selling it at such a price abroad as would enable him to realize a profit. The amount he receives for his export certificate, say, R. 1.25, is the exact amount of the bounty he receives upon exportation, and this enables him to sell at a profit in a foreign market. All manufacturers would prefer to sell at home if they could realize a greater price than by selling abroad, but if by being paid a drawback, or by a remission of taxes, they can find a profitable market in a foreign country, so much sugar as is not needed at home will be sent abroad. The details of this elaborate procedure for the production, sale, taxation and exportation of Russian sugar are of much less importance than the two facts which appear clearly through this maze of regulations, viz.: that no sugar is permitted to be sold in Russia that does not pay an excise tax of R. 1.75 per pood, and that sugar exported pays no tax at all. The mere imposition of an import duty of three roubles per pood, paid upon foreign sugar, is, like all protective duties, a bounty, but is a bounty upon production and not upon exportation. When a tax is imposed upon all sugar produced, but is remitted upon all sugar exported, then, by whatever process, or in whatever manner, or under whatever name it is disguised, it is a bounty upon exportation. The difference in price between Russian sugar sold at home and abroad is thus shown by the delegate of Austria-Hungary at the Sugar Conference of 1898 by the following quotations from the Odessa exchange under date of June 10, 1898: --------------------------------------------------------------------------- | Francs per | Cents per | 100 kilos. | pound. --------------------------------------------------------------------------- | | For Russia: 5.8 rubles per pood, say ........... | 82.70 | 7.25 For export: 1.73 rubles per pood, say .......... | 28.16 | 2.47 Hence a difference: 3.35 rubles per pood, say .. | 54.54 | 4.78 Deducting the tax: 1.75 rubles per pood, say ... | 28.49 | 2.50 There remains a discrepancy of 1.60 per pood, say | 26.05 | 2.28 --------------------------------------------------------------------------- The same merchandise, on the same date, and at the same place, thus commanded a different price according to its destination, and the difference amounted to 26.05 francs per 100 kilos (2.28 cents per pound). If we are to investigate the reasons which may impel Russian manufacturers to produce more sugar than is needed for home consumption, and to bring the surplus for exportation down to a comparatively much lower price, we shall find the explanation of this strange phenomenon in the legislative system of Russia. Such is our intimate conviction. The object of issuing certificates of sugar exported seems to have been merely to enable the exporting manufacturer to obtain the best price for the privilege he assigns to the interior manufacturer of putting an equal amount of free sugar upon the market by assigning the certificates to the one who would offer the best price. In this connection the Circuit Court of Appeals found: That the Russian exporter of sugar obtained from his government a certificate, solely because of such exportation, which is worth in the open market of that country from R. 1.25 to R. 1.64 per pood, or from 1.8 to 2.35 cents per pound. Therefore we hold that the government of Russia does secure to the exporter of that country, as the inevitable result of its action, a money reward or gratuity whenever he exports sugar from Russia. We all concur in this expression of opinion. The decree of the Circuit Court of Appeals is, therefore, Affirmed.",On the Manner of Exporting Sugar to Foreign Countries.
+455,137743,2,1,"In 1986, respondent John W. Banks, II, was fired from his job as an educational consultant with the California Department of Education. He retained an attorney on a contingent-fee basis and filed a civil suit against the employer in a United States District Court. The complaint alleged employment discrimination in violation of 42 U. S. C. §§ 1981 and 1983, Title VII of the Civil Rights Act of 1964, as amended, 42 U. S. C. § 2000e et seq., and Cal. Govt. Code Ann. § 12965 (West 1986). The original complaint asserted various additional claims under state law, but Banks later abandoned these. After trial commenced in 1990, the parties settled for $464,000. Banks paid $150,000 of this amount to his attorney pursuant to the fee agreement. Banks did not include any of the $464,000 in settlement proceeds as gross income in his 1990 federal income tax return. In 1997 the Commissioner of Internal Revenue issued Banks a notice of deficiency for the 1990 tax year. The Tax Court upheld the Commissioner's determination, finding that all the settlement proceeds, including the $150,000 Banks had paid to his attorney, must be included in Banks' gross income. The Court of Appeals for the Sixth Circuit reversed in part. 345 F. 3d 373 (2003). It agreed the net amount received by Banks was included in gross income but not the amount paid to the attorney. Relying on its prior decision in Estate of Clarks ex rel. Brisco-Whitter v. United States, 202 F. 3d 854 (2000), the court held the contingent-fee agreement was not an anticipatory assignment of Banks' income because the litigation recovery was not already earned, vested, or even relatively certain to be paid when the contingent-fee contract was made. A contingent-fee arrangement, the court reasoned, is more like a partial assignment of income-producing property than an assignment of income. The attorney is not the mere beneficiary of the client's largess, but rather earns his fee through skill and diligence. 345 F. 3d, at 384-385 (quoting Estate of Clarks, supra, at 857-858). This reasoning, the court held, applies whether or not state law grants the attorney any special property interest ( e. g., a superior lien) in part of the judgment or settlement proceeds.",Commissioner v. Banks
+456,137743,2,2,"After leaving his job as a vice president and loan officer at the Bank of California in 1987, Sigitas J. Banaitis retained an attorney on a contingent-fee basis and brought suit in Oregon state court against the Bank of California and its successor in ownership, the Mitsubishi Bank. The complaint alleged that Mitsubishi Bank willfully interfered with Banaitis' employment contract, and that the Bank of California attempted to induce Banaitis to breach his fiduciary duties to customers and discharged him when he refused. The jury awarded Banaitis compensatory and punitive damages. After resolution of all appeals and post-trial motions, the parties settled. The defendants paid $4,864,547 to Banaitis; and, following the formula set forth in the contingent-fee contract, the defendants paid an additional $3,864,012 directly to Banaitis' attorney. Banaitis did not include the amount paid to his attorney in gross income on his federal income tax return, and the Commissioner issued a notice of deficiency. The Tax Court upheld the Commissioner's determination, but the Court of Appeals for the Ninth Circuit reversed. 340 F. 3d 1074 (2003). In contrast to the Court of Appeals for the Sixth Circuit, the Banaitis court viewed state law as pivotal. Where state law confers on the attorney no special property rights in his fee, the court said, the whole amount of the judgment or settlement ordinarily is included in the plaintiff's gross income. Id., at 1081. Oregon state law, however, like the law of some other States, grants attorneys a superior lien in the contingent-fee portion of any recovery. As a result, the court held, contingent-fee agreements under Oregon law operate not as an anticipatory assignment of the client's income but as a partial transfer to the attorney of some of the client's property in the lawsuit.",Commissioner v. Banaitis
+457,105074,1,1,"The effect to be given this Court's former refusal of certiorari in these cases was presented to the District Court which heard the applications for federal habeas corpus upon full records of the state proceedings in the trial and appellate courts. In No. 32, Brown v. Allen, the District Court, upon examination of the application, the answer, and the exhibits, adopted, without hearing argument or testimony, the findings of the sentencing judge with respect to both the composition of the grand jury and the voluntary character of the confession. These were the federal constitutional issues involved in the state trial. The record which the District Judge had before him embraced the record of the case in the North Carolina courts and this Court, including all the relevant portions of the transcript of proceedings in the sentencing court. The District Court then dismissed the petition. Sub nom. Brown v. Crawford, 98 F. Supp. 866. In No. 22, Speller v. Allen , the petition for habeas corpus in the District Court raised again the same federal question which had been passed upon by the trial and appellate courts in North Carolina and which had been offered to this Court on petition for certiorari; to wit, the jury commissioners had pursuant to a long and continuous practice, discriminated against Negroes in the selection of juries, solely on account of race and/or color. The District Court had before it the record which had been filed in the Supreme Court of North Carolina on appeal. Included in this record was the same transcript of proceedings in the trial court which had been before the State Supreme Court. In addition, the District Court took further evidence by way of testimony and stipulation. The District Court, upon examination of all the evidence and the stipulations, adopted the findings of the sentencing judge with respect to the composition of the trial jury. It added that petitioner failed to substantiate the charge that he did not have a trial according to due process, . . . . The court then vacated the writ; and held that while the petition could be dismissed solely in the light of the procedural history, there was the added alternative ground of failure to substantiate the charge. Sub nom. Speller v. Crawford, 99 F. Supp. 92, 97. In No. 20, Daniels v. Allen , petitioners at the state trial made a timely motion to quash the indictment and challenged the array, alleging discrimination against Negroes in the selection of both grand and petit jurors in contravention of the guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what were alleged to be coerced confessions. Petitioners contend that the admission of these confessions violated their due process rights under the Fourteenth Amendment. They also urge that the refusal of the Supreme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until one day beyond the period of limitation, is a denial of equal protection under the Fourteenth Amendment. In their application to the District Court, petitioners repeated once again those federal constitutional questions which had earlier been presented to the sentencing court and the Supreme Court of North Carolina and which had also been repeated in their petition for certiorari filed in this Court. In examining the application, the District Court Judge studied the records of the trial and appellate courts of North Carolina, including a transcript of the proceedings in the sentencing court. He concluded that the findings of the judge of the sentencing court on the matter of whether the jury had been properly selected were supported by all the evidence and that it was not shown that there was a purposeful and systematic exclusion of Negroes solely on account of race. He also found that the trial judge correctly determined that the confessions were voluntary and that the instruction concerning the confessions was adequate. In addition the District Judge heard all evidence offered by the prosecution or defense. The District Court Judge did advert to the circumstance that this Court had denied a petition for certiorari on the same questions, and he further observed that to his mind the procedural history of the case did not make it appear that petitioners were denied the substance of a fair trial. He added that petitioners failed to substantiate the charges made. 99 F. Supp. at 216. The writ was vacated and the application dismissed. On the procedural history, the District Court refused to entertain the request. Sub nom. Daniels v. Crawford, 99 F. Supp. 208. The records of the former proceedings thus determined the action of the United States District Court. The fact that further evidence was heard in two of the cases was to assure the judge that the prisoners were not held in custody in violation of the Constitution. In dismissing these petitions for habeas corpus the District Court did not treat our denial of certiorari as conclusive. In the Brown case, the last one decided, Judge Gilliam based his decision on this finding of fact: 12. The facts found by the trial Judge, in respect to the composition of the grand jury, are supported by the evidence before him, and these findings and the conclusion thereon are adopted as findings in this respect, and the facts found by that Court in respect to the question of admission of statements made by the defendant are also supported by the evidence, and these findings and the conclusions thereon are likewise adopted. 98 F. Supp. 866, 870. The court cited from Stonebreaker v. Smyth, 163 F. 2d 498, 499, in support of the above statement that this is the proper rule:  `While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below; and in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus.'  98 F. Supp. at 868. In the Speller case, the pith of his conclusion is stated as follows:  `The Court now concludes that the writ should be vacated and the petition dismissed upon the procedural history and the record in the State Courts, for the reason that habeas corpus proceeding is not available to the petitioner for the purpose of raising the identical question passed upon in those Courts.'  99 F. Supp. 92, 95. To this was added the alternative ground of agreement with the conclusions of the sentencing court. See pp. 452-453, supra. In the Daniels case, decided the same day, the District Court left open the question of its power to reexamine, 99 F. Supp. at 213, and concluded on the record that the State had afforded a fair trail. A. Effect of Denial of Certiorari. —In cases such as these, a minority of this Court is of the opinion that there is no reason why a district court should not give consideration to the record of the prior certiorari in this Court and such weight to our denial as the District Court feels the record justifies. This is the view of the Court of Appeals. 192 F. 2d 763, 768 et seq.; Speller v. Allen, 192 F. 2d 477. This is, we think, the teaching of Ex parte Hawk, 321 U. S. 114, 118, and White v. Ragen, 324 U. S. 760, 764, 765. We have frequently said that the denial of certiorari imports no expression of opinion upon the merits of a case. House v. Mayo, 324 U. S. 42, 48; Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251, 258. Cf. Ex parte Abernathy, 320 U. S. 219. When on review of proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement is satisfied. But denial of certiorari marks final action on state criminal proceedings. In fields other than habeas corpus with its unique opportunity for repetitious litigation, as demonstrated in Dorsey v. Gill, 80 U. S. App. D. C. 9, 148 F. 2d 857, see 7 F. R. D. 313, the denial would make the issues res judicata. The minority thinks that where a record distinctly presenting a substantial federal constitutional question disentangled from problems of procedure is brought here by certiorari and denied, courts dealing with the petitioner's future applications for habeas corpus on the same issues presented in earlier applications for writs of certiorari to this Court, should have the power to take the denial into consideration in determining their action. We indicated as much in House v. Mayo, supra, p. 48, and Ex parte Hawk, supra, p. 117, when we specifically approved a district court's refusal to reexamine ordinarily the questions passed upon by our denial. Permitting a district court to dismiss an application for habeas corpus on the strength of the prior record should be a procedural development to reduce abuse of the right to repeated hearings such as were permitted during the period when there was no review of the refusal of a habeas corpus application, Salinger v. Loisel, 265 U. S. 224. See 61 Harv. L. Rev. 657, 670. Compare the protection given by statute against abuse of habeas corpus in federal criminal proceedings, 28 U. S. C. § 2244. Since a federal district court has power to intervene, there is a guard against injustice through error. Darr v. Burford, supra, at 214. It should be noted that the minority does not urge that the denial of certiorari here is res judicata of the issues presented. It is true, as is pointed out in the opinion of MR. JUSTICE FRANKFURTER, the records of applications for certiorari to review state criminal convictions, directly or collaterally, through habeas corpus or otherwise, are not always clear and full. Some records, however, are. It seems proper for a district court to give to these refusals of certiorari on adequate records the consideration the district court may conclude these refusals merit. This would be a matter of practice to keep pace with the statutory development of 1867 that expanded habeas corpus. We think it inconsistent to allow a district court to dismiss an application on its appraisal of the state trial record, as we understand those do who oppose our suggestion (see MR. JUSTICE FRANKFURTER'S opinion, post, pp. 500-501 and 503-506), but to refuse to permit the district court to consider relevant our denial of certiorari. B. Effect of State Court Adjudications. —With the above statement of the position of the minority on the weight to be given our denial of certiorari, we turn to another question. The fact that no weight is to be given by the Federal District Court to our denial of certiorari should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. So far as weight to be given the proceedings in the courts of the state is concerned, a United States district court, with its familiarity with state practice is in a favorable position to recognize adequate state grounds in denials of relief by state courts without opinion. A fortiori, where the state action was based on an adequate state ground, no further examination is required, unless no state remedy for the deprivation of federal constitutional rights ever existed. Mooney v. Holohan, 294 U. S. 103; Ex parte Hawk, 321 U. S. 114. Furthermore, where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state's resolution of the issue. Malinski v. New York, 324 U. S. 401, 404. In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata. [6] Furthermore, in view of the consideration that was given by the District Court to our denial of certiorari in these cases, should we return them to that court for reexamination in the light of this Court's ruling upon the effect to be given to the denial? We think not. From the findings of fact and the judgments of the District Court we cannot see that such consideration as was given by that court to our denials of certiorari could have had any effect on its conclusions as to whether the respective defendants had been denied federal constitutional protection. [7] It is true, under the Court's ruling today, that the District Court in each of the three cases erroneously gave consideration to our denial of certiorari. It is also true that its rulings, set out above, show that without that consideration, it found from its examination of the state records and new evidence presented that the conduct of the respective state proceedings was in full accord with due process. Such conclusions make immaterial the fact that the trial court gave consideration to our denial of certiorari. The District Court and the Court of Appeals recognized the power of the District Court to reexamine federal constitutional issues even after trial and review by a state and refusal of certiorari in this Court. Darr v. Burford, 339 U. S., at 214. The intimation to the contrary in the Speller case, 99 F. Supp., at 95, see p. 453, supra, must be read as the Court's opinion after the hearing. In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. [8] Certainly the consideration given by the District Court to our former refusals of certiorari on the issues presented cannot affect its determinations that there was no merit in any of the applications for habeas corpus. 98 F. Supp. 868, 870; 99 F. Supp. 97, 99; 99 F. Supp. at 216. Where it is made to appear affirmatively, as here, that the alleged error could not affect the result, such errors may be disregarded even in the review of criminal trials. [9] Whether we affirm or reverse in these cases, therefore, does not depend upon the trial court's consideration of our denial of certiorari but upon the soundness of its decisions upon the issues of alleged violation of federal procedural requirements or of petitioner's constitutional rights by the North Carolina proceedings. We now take up those problems.",effect of former proceedings.
+458,105074,1,2,"Petitioner alleges a procedural error in No. 32, Brown v. Allen. As we stated in the preceding subdivision, the writ of habeas corpus was refused on the entire record of the respective state and federal courts. 98 F. Supp. 866. It is petitioner's contention, however, that the District Court committed error when it took no evidence and heard no argument on the federal constitutional issues. He contends he is entitled to a plenary trial of his federal constitutional issues in the District Court. He argues that the Federal District Court, with jurisdiction of the particular habeas corpus, must exercise its judicial power to hear again the controversy notwithstanding prior determinations of substantially identical federal issues by the highest state court, either on direct review of the conviction or by post-conviction remedy, habeas corpus, coram nobis, delayed appeal or otherwise. [10] Jurisdiction over applications for federal habeas corpus is controlled by statute. [11] The Code directs a court entertaining an application to award the writ. [12] But an application is not entertained by a mere filing. Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief. [13] The word entertain presents difficulties. Its meaning may vary according to its surroundings. [14] In § 2243 and § 2244 we think it means a federal district court's conclusion, after examination of the application with such accompanying papers as the court deems necessary, that a hearing on the merits legal or factual is proper. See Walker v. Johnston, 312 U. S. 275, 283, First and Second; Smith v. Baldi , post, p. 561, at p. 568. Even after deciding to entertain the application, the District Court may determine later from the return or otherwise that the hearing is unnecessary. It is clear by statutory enactment that a federal district court is not required to entertain an application for habeas corpus if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus. [15] The Reviser's Notes to this section in House Report No. 308, 80th Cong., 1st Sess., say that no material change in existing practice is intended. Nothing else indicates that the purpose of Congress was to restrict by the adoption of the Code of 1948 the discretion of the District Court, if it had such discretion before, to entertain petitions from state prisoners which raised the same issues raised in the state courts. [16] Furthermore, in enacting 28 U. S. C. § 2254, dealing with persons in custody under state judgments, Congress made no reference to the power of a federal district court over federal habeas corpus for claimed wrongs previously passed upon by state courts. [17] See discussion at p. 447, supra. A federal judge on a habeas corpus application is required to summarily hear and determine the facts, and dispose of the matter as law and justice require, 28 U. S. C. § 2243. This has long been the law. R. S. § 761, old 28 U. S. C. § 461. It was under this general rule that this Court approved in Salinger v. Loisel, 265 U. S. 224, 231, the procedure that a federal judge might refuse a writ where application for one had been made to and refused by another federal judge and the second judge is of the opinion that in the light of the record a satisfactory conclusion has been reached. [18] That principle is also applicable to state prisoners. Darr v. Burford, supra, 214-215. Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle—a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required. See p. 457, supra. However, a trial may be had in the discretion of the federal court or judge hearing the new application. A way is left open to redress violations of the Constitution. See p. 447, supra. Moore v. Dempsey, 261 U. S. 86. Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected. [19] It is necessary to exercise jurisdiction to the extent of determining by examination of the record whether or not a hearing would serve the ends of justice. Cf. 28 U. S. C. § 2244. See n. 15, supra. As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through affirmance of the judgment on appeal or denial of post-conviction remedies. See White v. Ragen, 324 U. S. 760, 764. As will presently appear, this case involves no extraordinary situation. Since the complete record was before the District Court, there was no need for rehearing or taking of further evidence. Treating the state's response to the application as a motion to dismiss, the court properly granted that motion. Discharge from conviction through habeas corpus is not an act of judicial clemency but a protection against illegal custody. The need for argument is a matter of judicial discretion. All issues were adequately presented. There was no abuse.",right to plenary hearing.
+459,105074,1,3,"Next we direct our attention to the records which were before the District Court in order to review that court's conclusions that North Carolina accorded petitioners a fair adjudication of their federal questions. Questions of discrimination and admission of coerced confessions lie in the compass of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Have petitioners received hearings consonant with standards accepted by this Nation as adequate to justify their convictions? Hebert v. Louisiana, 272 U. S. 312; Adamson v. California, 332 U. S. 46. First. We take up Brown v. Allen, No. 32, a case that turns more generally than the others on the constitutional issues. Petitioner, a Negro, was indicted on September 4, 1950, and tried in the North Carolina courts on a charge of rape, and, having been found guilty, he was sentenced to death on September 15, 1950. In the sentencing court petitioner made a timely motion to quash the bill of indictment, alleging discrimination against Negroes in the selection of grand jurors in contravention of the guarantees of the Fourteenth Amendment to the Federal Constitution. After the verdict, but before sentencing, petitioner, by a motion to set aside the verdict, sought to expand his constitutional attack on the selection of the grand jury to embrace the petit jury also. On appeal the State Supreme Court treated, as we do, petitioner's motions as adequate to challenge the selection of both juries. 233 N. C. 202, 205-206, 63 S. E. 2d 99, 100-101. A second federal question was raised in the sentencing court when petitioner opposed admission into evidence of a confession which he alleged had been given involuntarily. Following sentencing, petitioner took an appeal to the State Supreme Court and there presented for review the issues of jury discrimination and admission of a coerced confession. On this appeal, that court had before it both a brief on behalf of petitioner and a transcript of all those portions of the sentencing court proceedings which petitioner deemed relevant to a review of his federal questions. [20] Dealing with the federal constitutional questions on their merits, the State Supreme Court affirmed the conviction. State v. Brown, 233 N. C. 202, 63 S. E. 2d 99. A. Petitioner's charge of discrimination against Negroes in the selection of grand and petit jurors in violation of his constitutional rights attacks the operation of a method used by North Carolina in selecting juries in Forsyth County. The statutes detailing the method of selection are cited below. [21] It is petitioner's contention that no more than one or two Negroes at a time have ever served on a Forsyth County grand jury and that no more than five Negroes have ever previously served on a petit jury panel in the county. These contentions are the basis of the allegation that a system of discrimination is being employed against the Negro residents of the county. Petitioner offered no evidence to support his charge of limitation against the jury service of Negroes, except the fact that fewer Negroes than whites, having regard for their proportion of the population, appeared on the jury panels. The 1940 Census shows the following figures in respect to the population of Forsyth County. Population Percent 21 Plus Percent White ............. 85,323 67.5 50,499 66.5 Negro ............. 41,152 32.5 25,057 33.5 _______ _____ ______ _____ Total ............. 126,475 100.0 75,556 100.0 According to the unchallenged testimony of the IBM Supervisor in the office of the Tax Supervisor of Forsyth County, a list of names is compiled from a tabulation of all the county property and poll taxpayers who make returns and is thereafter tendered to the County Commissioners for use in jury selection. All males between 21 and 50 years of age are required to list themselves for poll tax as well as to list their property. Gen. Stat. of North Carolina, Recompiled 1950, §§ 105-307, 105-341. In 1948, Winston Township, the most heavily populated in Forsyth County, had 7,659 white males and 2,752 colored males who listed polls. In the County of Forsyth outside Winston Township, 10,319 white males and 587 colored males listed polls. This indicates that Negroes number approximately 16% of the listed taxpayers. No figures appear in the record of the percentage of Negroes on the property tax lists. In June 1949, a list of approximately 40,000 names compiled from all the tax lists was handed to the Commissioners by the office of the Tax Supervisor. There is uncontradicted testimony by the IBM Supervisor that the list of jurors was prepared without regard to color, and that it constituted a complete compilation of the names of all resident, adult, listed taxpayers of Forsyth County. Both the grand and petit jury panels employed in this case were drawn from that pool. All the names on that list and no others (the list having been cut up into individual slips of uniform size bearing only one person's name) were put into a jury box. The selection from the jury box of names of persons subject to a summons to serve as grand jurors in a term of court is made by lot, as is the selection of panels of persons subject to summons for duty on petit juries. As the drawings were made by a small child and recorded in public there is no claim or evidence of chicanery in the drawings. Grand jurors in Forsyth County are selected in January and July for a six months' term. See c. 206, 1937 Public-Local Laws, as amended by c. 264, 1947 N. C. Session Laws, as amended by c. 577, 1949 N. C. Session Laws. A panel of 60 names is drawn from the jury box each December and June by a child in the presence of the County Commissioners. At the June 5, 1950, meeting of the Commissioners, 60 names were drawn. These 60 names constituted the panel of persons subject to summons for service on the grand jury which returned the indictment against petitioner. After such a drawing, a jury order is immediately prepared and given to the sheriff, who then summons all the parties he can find to appear for drawings for grand or petit jury service, as the case may be. All persons whose names were drawn were summoned if they could be found. Although there is no evidence as to how many persons were summoned by the sheriff, there is evidence to show that at least four or five Negroes were summoned. The final drawing for grand jury service is conducted in the courtroom in the presence of the Superior Court Judge. When the July 1950 grand jury was selected from the panel of 60, the drawing was again made by a child. The names of all the persons summoned by the sheriff were put into a special section of the jury box and the 18-man grand jury was then drawn. The name of one of the four or five Negroes summoned was drawn in the group of 18, and that Negro served on the grand jury. The remaining names are used for the petit jury panel. When they are needed, petit jury panels in Forsyth County are drawn from the same jury box in groups of 44 persons. C. 206, Public-Local Laws, supra. After a drawing, the names are given to a deputy sheriff who then summons those persons on the list whom he can find. On the lists supplied to the deputies there are no indications as to whether the persons named are Negro or white. According to the statute all summoned persons must report for jury service. At the selection of the petit jurors for the trial of this case 8 of the 37 persons summoned on the panel were Negroes, as were 3 of a special venire of 20. Challenges, peremptory or for cause, eliminated all Negroes. No objections are made to the legality of these challenges. Uncontradicted evidence by a state witness shows that in the two years 1949 and 1950 the percentages of Negroes drawn on grand jury panels in Forsyth County varied between 7% and 10% of all persons drawn. In 1950 the percentage of Negroes drawn on petit jury panels varied between 9% and 17% of all persons drawn. Prior to 1947, the jury list was composed of those taxpayers who had paid all the taxes assessed against them for the preceding year. N. C. Gen. Stat., 1943, § 9-1; cf. State v. Davis, 109 N. C. 780, 14 S. E. 55; State v. Dixon, 131 N. C. 808, 44 S. E. 944. This requirement has now been removed, as is shown by comparing the earlier statutes with the present wording of § 9-1 which was put into law in 1947. No change was made in the duty of all males between 21 and 50 to list their polls for assessment nor of the requirement for the county to collect an annual poll tax. Gen. Stat. §§ 105-307, 105-336, 105-339, 105-341; cf. State v. Brown, 233 N. C. 202, 205, 63 S. E. 2d 99, 100-101. The pool of eligible jurors was thus enlarged. This enlargement and the practice of selecting jurors under the new statute worked a radical change in the racial proportions of drawings of jurors in Forsyth County. As is shown by the record in this Court of Brunson v. North Carolina, 333 U. S. 851, tried in North Carolina in October, 1946, Forsyth County with its large Negro population, at that time had a jury pool of 10,622 white and 255 colored citizens. At that time a sheriff, then in office for 10 years, testified that he had summoned only about twelve Negroes for jury service in that time. In 1949, the jury box was purged. All those listing taxes and eligible were listed for jury service with the result in this case shown above. Discriminations against a race by barring or limiting citizens of that race from participation in jury service are odious to our thought and our Constitution. This has long been accepted as the law. Brunson v. North Carolina, 333 U. S. 851; Cassell v. Texas, 339 U. S. 282, 286-287; State v. Peoples, 131 N. C. 784, 42 S. E. 814. Such discrimination is forbidden by statute, 18 U. S. C. § 243, and has been treated as a denial of equal protection under the Fourteenth Amendment to an accused, of the race against which such discrimination is directed. Neal v. Delaware, 103 U. S. 370. The discrimination forbidden is racial discrimination, however, directed to accomplish the result of eliminating or limiting the service of the proscribed race by statute or by practice. Smith v. Texas, 311 U. S. 128; Patton v. Mississippi, 332 U. S. 463. It was explained in 1880 by this Court, when composed of justices familiar with the evils the Amendment sought to remedy, as permitting a state to confine the selection [of jurors] to males, to freeholders, to citizens, to persons within certain ages or to persons having educational qualifications. Strauder v. West Virginia, 100 U. S. 303, 310. Cf. Franklin v. South Carolina, 218 U. S. 161, 167-168; Fay v. New York, 332 U. S. 261, 268-272. While discriminations worked by consistent exclusion have been rigorously dealt with, Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 U. S. 442; Norris v. Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 U. S. 354; Hill v. Texas, 316 U. S. 400; Patton v. Mississippi, 332 U. S. 463, variations in proportions of Negroes and whites on jury lists from racial proportions in the population have not been considered violative of the Constitution where they are explained and not long continued. Akins v. Texas, 325 U. S. 398, 403. Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. Texas, 311 U. S. 128. Nor can a race be proscribed as incompetent for service, Hill v. Texas, 316 U. S. 400. Responsible as this Court is under the Constitution to redress the jury packing which Bentham properly characterized as a sinister species of art, Bentham, Elements of the Art of Packing as Applied to Special Juries, p. 6, it should not condemn good faith efforts to secure competent juries merely because of varying racial proportions. The Supreme Court of North Carolina concluded that objection to the lists based on the racial composition of the tax lists was far-fetched and that it was not a racial discrimination when a list which included only taxpayers was used. State v. Brown, 233 N. C. 202, 63 S. E. 2d 99. [22] We recognize the fact that these lists have a higher proportion of white citizens than of colored, doubtless due to inequality of educational and economic opportunities. While those who chose the names for the jury lists might have included names other than taxpayers, such action was not mandatory under state law. State v. Brown, 233 N. C. 202, 205, 63 S. E. 2d 99, 100. As only property and poll tax lists were used, see p. 467, supra, this case presents a jury selection as though limited by statute to all property owners and voters. We assume only reasonable tax levies were used. It is to be noted all males between 21 and 50 must list both property, however modest in amount, and polls, see pp. 467-468, supra, so that in that sense there is no exclusion on racial grounds. The name of every property owner and every voter is in the jury box. We recognize, too, that we are now reviewing a constitutional objection to a state court conviction, and we may not act to alter practices of a state which are short of a denial of equal protection or due process in the selection of juries. [23] States should decide for themselves the quality of their juries as best fits their situation so long as the classifications have relation to the efficiency of the jurors and are equally administered. Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. Short of an annual census or required population registration, these tax lists offer the most comprehensive source of available names. We do not think a use, nondiscriminatory as to race, of the tax lists violates the Fourteenth Amendment, nor can we conclude on the evidence adduced that the results of the use require a conclusion of unconstitutionality. Assuming that before the Brunson case, 333 U. S. 851, there were unconstitutional exclusions of Negroes in this North Carolina county, the present record does not show such exclusions in this case. The evidence is to the contrary. The District Court correctly determined this issue as to the grand jury. As both the grand and petit juries in this case were drawn from the same filling of the jury box, the reasoning of the District Court is applicable to the petit jury here involved. B. Petitioner contends further that his conviction was procured in violation of the Fourteenth Amendment of the Federal Constitution because the trial judge permitted the jury to rely on a confession claimed by petitioner to be coerced in determining his guilt. At the trial petitioner registered timely objection to use by the state of his purported confessions. The objection having been made, the trial judge immediately excused the jury and ordered a preliminary examination to determine whether or not the statements were voluntary. It was in this preliminary hearing, in which the petitioner and two police officers testified, that the admitted facts were first developed upon which petitioner rests this phase of his case. After hearing the testimony, the trial judge found that the petitioner's statements were freely and voluntarily given and declared them to be competent. Upon recall of the jury, the state introduced the statements in evidence, objections again being noted. Although the petitioner chose not to take the stand in the trial of his cause, his counsel, while cross-examining the officers who had taken the challenged statements from the petitioner, developed again for the jury all the facts upon which petitioner now relies. A conviction by a trial court which has admitted coerced confessions deprives a defendant of liberty without due process of law. Brown v. Mississippi, 297 U. S. 278, 280, 286-287. When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U. S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U. S. 227. This is true even though the evidence apart from the confessions might have been sufficient to sustain the jury's verdict. Malinski v. New York, 324 U. S. 401; see Lyons v. Oklahoma, 322 U. S. 596, 597. Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies or whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confessions by the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a use constitutes a denial of due process of law as guaranteed by the Fourteenth Amendment. In determining whether a confession has been used by the state in violation of the constitutional rights of a petitioner, a United States court appraises the alleged abuses by the facts as shown at the hearing or admitted on the record. Petitioner's contention that he had a constitutional right to have his statements excluded from the record rests upon these admitted facts. He is an illiterate. He was held after arrest for five days before being charged with the crime for which he was convicted. He was not given a preliminary hearing until 18 days after his arrest. No counsel was provided for him in the period of his detention. The alleged confessions were taken prior to the preliminary hearing and appointment of counsel. There is no record of physical coercion or of that less painful duress generated by prolonged questioning. There is evidence that petitioner was told he could remain silent and that any statement he might make could be used against him. He chose to speak, and he made that choice without a promise of reward or immunity having been extended. He was never denied the right to counsel of his choice and was never without competent counsel from the inception of judicial proceedings. If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceding, due process was not violated. Under the leadership of this Court a rule has been adopted for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410. Cf. Allen v. United States, 91 U. S. App. D. C. 197, 202 F. 2d 329. This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance. But the federal rule does not arise from constitutional sources. The Court has repeatedly refused to convert this rule of evidence for federal courts into a constitutional limitation on the states. Gallegos v. Nebraska, 342 U. S. 55, 63-65. Mere detention and police examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained. Petitioner's constitutional rights were not infringed by the refusal of the trial court to exclude his confessions as evidence. Second. We examine the constitutional issues in No. 22, Speller v. Allen . Petitioner, a Negro, was indicted and in August, 1949, tried in the Superior Court of Bertie County, North Carolina, upon a charge of rape. He has been convicted and sentenced to death on this charge three times, the first two convictions having been set aside on appeal by the Supreme Court of North Carolina on the ground of discriminatory selection of jurors. State v. Speller, 229 N. C. 67, 47 S. E. 2d 537; 230 N. C. 345, 53 S. E. 2d 294. At this, his third trial, August Term 1949, petitioner made a timely motion to set aside the array of special veniremen called from Vance County, alleging discrimination against Negroes solely and wholly on account of their race and/or color in the selection of the veniremen in contravention of the guarantees of the Fourteenth Amendment of the Federal Constitution. (Transcript of Record, State v. Speller , August Term 1949, Bertie N. C. Superior Court at 12, Item 91, Clerk's Record, Supreme Court of the United States.) Evidence was taken at length on this issue, although some evidence deemed material by petitioner was excluded. In particular, the trial judge, on the ground that it would be immaterial, infra, p. 480, refused to permit petitioner to produce evidence as to all the scrolls in the jury box for the purpose of showing the existence of dots on the scrolls bearing the names of Negroes. The jury box was produced in court, opened, and counsel for defendant permitted to examine the scrolls. The trial judge made findings relating to the manner of selecting the veniremen, determining that no discrimination was practiced, and on these findings denied the motion to set aside the array. Petitioner was thereafter convicted for the third time, and sentenced to death. On appeal petitioner asserted that his conviction violated the Equal Protection Clause of the Fourteenth Amendment, assigning the denial of his motion to set aside the array as error, and also assigning as error the trial court's ruling on his request for permission to examine into all the scrolls in the jury box. The Supreme Court of North Carolina had before it on that appeal as part of the record a mimeographed, narrative-style transcript of the entire proceedings below; petitioner makes no objection to the absence of any relevant evidence on that appeal, except that relating to all the scrolls which had been excluded by the trial court. Upholding the rulings of the trial court, the Supreme Court of North Carolina affirmed the conviction, 231 N. C. 549, 57 S. E. 2d 759. Petitioner filed this petition for a writ of habeas corpus in the Federal District Court for the Eastern District of North Carolina after we denied certiorari on direct review of the state proceedings. The petition summarily recited the prior history of the litigation, and raised again the same federal question which had been passed upon by both North Carolina courts, and which had been offered to this Court on petition for certiorari, racial discrimination. The District Court heard all additional evidence the petitioner offered. This was in its discretion. Moore v. Dempsey, 261 U. S. 86; Darr v. Burford, 339 U. S., at 214, cases which establish the power of federal district courts to protect the constitutional rights of state prisoners after the exhaustion of state remedies. It better enabled that court to determine whether any violation of the Fourteenth Amendment occurred. Petitioner's charge of discrimination against Negroes in the selection of petit jurors in violation of his constitutional rights attacks the operation of the system used by the North Carolina authorities to select juries in Vance County, from which county a special venire was obtained to try petitioner. The charge rests on petitioner's contentions (1) that no Negro within recent years had served on a jury in Vance County before this case, (2) that no Negro had been summoned to serve on a jury before this case, and (3) that the jury box in this case was so heavily loaded with names of white persons that the drawing could not fairly reflect a cross-section of those persons in the community qualified for jury service. Petitioner offered evidence to support each of these three contentions. The evidence establishes the correctness of contentions (1) and (2). They are inapplicable to this case, however, under the circumstances of the filling of this particular jury box. As is pointed out in Brown v. Allen, supra, at page 470, North Carolina in 1947 enlarged its pool of citizens eligible for jury service. General Statutes, North Carolina, § 9-1. In Vance County, where the special venire for Speller's trial was drawn, the names of substantial numbers of Negroes appeared thereafter in the jury box. 145 Negroes out of a total of 2,126 names were in this jury box. As this venire was the first drawing of jurors from the box after its purge in July 1949, following the new statute and Brunson v. North Carolina, 333 U. S. 851, decided here March 15, 1948, the long history of alleged discrimination against its Negro citizens by Vance County jury commissioners is not decisive of discrimination in the present case. Former errors cannot invalidate future trials. Our problem is whether this venire was drawn from a jury box invalidly filled as to Speller because names were selected by discriminating against Negroes solely on account of race and/or color. It is this particular box that is decisive, cf. Cassell v. Texas, 339 U. S. 282, 290 and 295. Past practice is evidence of past attitude of mind. That attitude is shown to no longer control the action of officials by the present fact of colored citizens' names in the jury box. It is suggested that the record shows that the names of colored persons in the jury box were marked with a dot or period on the scroll. This could be used for unlawful disposition of such scrolls when drawn. Such a scheme would be useless in the circumstances of this case. The record shows that the defendant and his counsel were present when the venire was drawn by a child, aged 5. All of the names drawn were given to the sheriff and summonses were issued. As a matter of fact the special venire contained the names of seven Negroes. Four appeared. None sat as jurors. Therefore the assertion as to the dots, even if true, means no more than that some unknown person desired to interfere with the fair drawing of juries in Vance County. The trial court found against petitioner on this question. The District Court pointed out its immateriality. 99 F. Supp., at 97. This box was filled by names selected by the clerk of the jury commissioners and corrected by the commissioners. The names put in were substantially those selected by the clerk, who chose them from those on the tax lists who had the most property. The clerk testified no racial discrimination entered into his selection. Since the effect of this possible objection to the selection of jurors on an economic basis was not raised or developed at the trial, on appeal to the State Supreme Court, on the former certiorari to this Court, or in the petition or brief on the present certiorari to this Court, it is not open to consideration here. [24] Such an important national asset as state autonomy in local law enforcement must not be eroded through indefinite charges of unconstitutional actions. As we have stated above in discussing the Brown case, page 473, et seq., supra, our conclusion that selection of prospective jurors may be made from such tax lists as those required under North Carolina statutes without violation of the Federal Constitution, this point needs no further elaboration. The fact that causes further consideration in this case of the selection of prospective jurors is that the tax lists show 8,233 individual taxpayers in Vance County of whom 3,136 or 38% are Negroes. In the jury box involved, selected from that list, there were 2,126 names. Of that number 145 were Negroes, 7%. This disparity between the races would not be accepted by this Court solely on the evidence of the clerk of the commissioners that he selected names of citizens of good moral character and qualified to serve as jurors, and who had paid their taxes. [25] It would not be assumed that in Vance County there is not a much larger percentage of Negroes with qualifications of jurymen. [26] The action of the commissioners' clerk, however, in selecting those with the most property, an economic basis not attacked here, might well account for the few Negroes appearing in the box. Evidence of discrimination based solely on race in the selection actually made is lacking. The trial and district courts, after hearing witnesses, found no racial discrimination in the selection of the prospective jurors. The conviction was upheld as nondiscriminatory by the State Supreme Court, which had once acted to reverse a conviction of this defendant by a jury deemed tainted with racial discrimination, State v. Speller, 229 N. C. 67, 47 S. E. 2d 537, and again to reverse a conviction when adequate time for investigation of discrimination had not been given. State v. Speller, 230 N. C. 345, 53 S. E. 2d 294. It would require a conviction, by this Court, of violation of equal protection through racial discrimination to set aside this trial. Our delicate and serious responsibility of compelling state conformity to the Constitution by overturning state criminal convictions, should not be exercised without clear evidence of violation. Disregarding, as we think we should, the clerk's unchallenged selections based on taxable property, there is no evidence of racial discrimination. Negroes' names now appear in the jury box. If the requirement of comparative wealth is eliminated, and the statutory standards employed, the number would increase to the equality justified by their moral and educational qualification for jury service as compared with the white race. We do not think the small number, by comparison, of Negro names in this one jury box, is, in itself, enough to establish racial discrimination. Third. We have the problems presented by No. 20, Daniels v. Allen . The two petitioners, Negroes, were indicted and convicted in the North Carolina courts on a charge of murder. Their trial in the Superior Court of Pitt County resulted in a verdict of guilty, and each petitioner was thereafter sentenced to death. There is no issue over guilt under the evidence introduced. In addition to the objections stated above at p. 453—discrimination in jury lists, coerced confessions and refusal to hear on the merits—there is also objection here to the procedure for determination of the voluntariness of the confessions. As the failure to serve the statement of the case on appeal seems to us decisive, we do not discuss in detail the other constitutional issues tendered and only point out that they were resolved against the petitioners by the sentencing state court and the Federal District Court after full hearing of the evidence offered. It is also to be noted that the Supreme Court of North Carolina refused certiorari to review the alleged invasions of constitutional rights by the sentencing court and two efforts of petitioners to secure an order permitting them to apply for coram nobis. [27] The writ of coram nobis is available in North Carolina to test constitutional rights extraneous of the record. In re Taylor, 230 N. C. 566, 53 S. E. 2d 857. In the first coram nobis case the Court said, speaking of its refusal of certiorari: Counsel for petitioners were advised, however, that petition might be filed here for permission to apply to the Superior Court of Pitt County, where the cause was tried, for a writ of error coram nobis, through which, if allowed there, they might be heard on the main features on which they asked for relief, which included matters dehors the record, and that appeal would lie to the Supreme Court in the event of its unfavorable action. S. v. Daniels, supra; In re Taylor (230 N. C.), supra; In re Taylor (229 N. C.), supra. The defendants now file a petition for permission to apply to the Superior Court for such a writ. Their petition does not make a prima facie showing of substance which is necessary to bring themselves within the purview of the writ. [28] 231 N. C. 341, 56 S. E. 2d 646, 647. After the refusal of the first coram nobis petition, the Supreme Court of North Carolina dismissed petitioners' attempted appeal on the record proper on the ground that no case on appeal had been filed. 231 N. C. 509, 57 S. E. 2d 653; Rule 17, 4 N. C. Gen. Stat., App.; id., Vol. 1, § 1-282. Such action accords with well-settled practice in that state. Rules requiring service to be made of case on appeal within the allotted time are mandatory. 231 N. C. 17, 24, 56 S. E. 2d 2, 7. They are applied alike to all appellants. [29] The first application for certiorari to this Court raised federal constitutional objections to the judgments of the Supreme Court of North Carolina on both direct and collateral attack by certiorari and coram nobis on the judgment of the trial court. 339 U. S. 954. The failure to perfect the appeal came in this way. Upon the coming in of the verdict on June 6, 1949, the petitioners several times moved for a new trial, in each motion reiterating one or the other of the aforementioned federal questions. These motions were denied, and the trial court pronounced its sentence. Petitioners excepted to the judgments and noted appeals therefrom to the State Supreme Court. In response to petitioners' notice, the trial judge granted petitioners 60 days in which to make and serve a statement of the case on appeal. When counsel failed to serve this statement until 61 days had expired, the trial judge struck the appeal as out of time. This action precluded an appeal as of right to the State Supreme Court. This situation confronts us. North Carolina furnished a criminal court for the trial of those charged with crime. Petitioners at all times had counsel, chosen by themselves and recognized by North Carolina as competent to conduct the defense. In that court all petitioners' objections and proposals whether of jury discrimination, admission of confessions, instructions or otherwise were heard and decided against petitioners. The state furnished an adequate and easily-complied-with method of appeal. This included a means to serve the statement of the case on appeal in the absence of the prosecutor from his office. State v. Daniels, 231 N. C. 17, 24, 56 S. E. 2d 2, 7. Yet petitioners' appeal was not taken and the State of North Carolina, although the full trial record and statement on appeal were before it, refused to consider the appeal on its merits. [30] The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U. S. C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. [31] To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime. Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials. [32] Also, this Court will review state habeas corpus proceedings even though no appeal was taken, if the state treated habeas corpus as permissible. [33] Federal habeas corpus is available following our refusal to review such state habeas corpus proceedings. [34] Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds. [35] North Carolina has applied its law in refusing this out-of-time review. [36] This Court applies its jurisdictional statute in the same manner. Preston v. Texas, 343 U. S. 917, 933; cf. Paonessa v. New York, 344 U. S. 860, certiorari denied because application therefor was not made within the time provided by law. We cannot say that North Carolina's action in refusing review after failure to perfect the case on appeal violates the Federal Constitution. A period of limitation accords with our conception of proper procedure. Finally, federal courts may not grant habeas corpus for those convicted by the state except pursuant to § 2254. See note 17, supra. See also note 2, supra. We have interpreted § 2254 as not requiring repetitious applications to state courts for collateral relief, p. 447, supra, but clearly the state's procedure for relief must be employed in order to avoid the use of federal habeas corpus as a matter of procedural routine to review state criminal rulings. A failure to use a state's available remedy, in the absence of some interference or incapacity, such as is referred to just above at notes 32 and 33, bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ. The judgment must be affirmed. We have spoken in this opinion of the change of practice in North Carolina in the selection of jurors. Our conclusions have been reached without regard to earlier incidents not connected with these juries or trials that suggest past discriminations. Since the states are the real guardians of peace and order within their boundaries, it is hoped that our consideration of these records will tend to clarify the requirements of the Federal Constitution in the selection of juries. Our Constitution requires that jurors be selected without inclusion or exclusion because of race. There must be neither limitation nor representation for color. By that practice, harmony has an opportunity to maintain essential discipline, without that objectionable domination which is so inconsistent with our constitutional democracy. The judgments are affirmed. MR. JUSTICE JACKSON concurs in this result for the reasons stated in a separate opinion. [See post, pp. 532, 548.] MR. JUSTICE BURTON and MR. JUSTICE CLARK adhere to their position as stated in Darr v. Burford, 339 U. S. 200, at 219. They believe that the nature of the proceeding upon a petition for certiorari is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted. They join in the judgment of the Court in these cases and they concur in the opinion of the Court except insofar as it may contain, in Part II, Subdivision A (pp. 456-457), or elsewhere, any indication that, although the reasons for a denial of certiorari be not stated, those reasons nevertheless may be inferred from the record. They also recognize the propriety of the considerations to which MR. JUSTICE FRANKFURTER invites the attention of a federal court when confronted with a petition for a writ of habeas corpus under the circumstances stated.",disposition of constitutional issues.
+460,105074,1,3,"
+In 97 of the 126 cases only the original of the petition was filed; in the other 29 cases, at least one copy of the petition was filed, but in only two cases were there the minimum nine copies required of the ordinary petitions for certiorari. One-half of the petitions contained nine pages or less. Of the 126 petitions, 13 were signed by lawyers. In a classification of the other petitions according to the degree of familiarity with law shown by the petitioners, 53 petitions were found not even to meet a generous standard requiring only that the petitioner intelligibly allege some facts and make some minimum attempt to connect those facts to a legal principle, whether or not the principle was valid or even arguable.
+Four of the petitioners whose papers are still on file here [8] submitted over 300 pages of papers in support of the petition for certiorari. The other 120 petitioners filed an average of under 30 pages of supporting papers per case. Full records, though in two cases not in due form, were filed by the petitioners in eight cases, while excerpts from the records both of the trial proceedings and of the State proceedings in which petitioner assailed the validity of the trial proceedings were filed in another 51 cases, as is shown in Table 1. No papers from the record below were filed in 24 of 125 cases. Among the excerpts from the records filed, in 26 cases a State court opinion [9] was filed from some proceeding in which the same issues were presented. There was no citation to, or filing of, an opinion or memorandum order in 46 of the cases. The first column of Table 1 [10] shows in detail what papers from the records below were filed in the Supreme Court.
+The issues raised by the petitioners varied from substantial federal claims to questions purely of State law. In a sorting of the petitions according to the claim that seemed the principal or most substantial one, two or three claims were found to have been most often asserted as the principal claim: the inadequacy of counsel or representation by counsel not of petitioner's choosing was claimed as the principal issue in 14 cases; in another 14, the sentences imposed were attacked as illegal, excessive or discriminatory; in 10 cases, a claim was made that the prosecuting attorney knowingly used perjured evidence or suppressed evidence. In general, errors in the preliminary proceedings were asserted as the main claim in 8 cases, errors in the indictment or information in 7, errors affecting the pleas in 14, concerning representation by counsel in 31, affecting the trial including inadmissibility of evidence, prejudice, and delay in 41, and errors surrounding the sentence in 17. Miscellaneous claims such as denials of a right to appeal or to a post-trial hearing and defects in extradition proceedings totaled 8. Perhaps of most significance to the central problem here was the discrepancy between the claims made in the Supreme Court and those made in the District Courts. This comparison will be made in Part II, dealing with the issues presented in the District Courts. [11]
+Table 1, supra, shows what papers were filed by the petitioners and not necessarily all the papers before the Court. In 15 of the 126 cases, the Supreme Court, either because of the seriousness of the allegations or the inadequacy of the record as presented by the petitioner, called for a response by the State. Fourteen responses were filed in accordance with these requests. In addition, the docket of the Supreme Court shows that responses were filed by the State in another 7 cases. In 10 of the 21 responses in these cases, additional parts of the record not already filed by the petitioners thus came before the Court, but the additions do not substantially change the picture presented in Table 1. For example, Table 1, Part 1, shows that in 30 cases, the petitioner filed in the Supreme Court the opinion below or excerpts or cited the opinion; the States filed the opinion below with their responses in an additional 4 cases. Like modifications, in no instance exceeding 5 cases, would be made in other of the items in Table 1 if it included papers filed by the State. The disposition of these cases in the Supreme Court is in marked contrast with the disposition of ordinary petitions for certiorari. Petitions for certiorari by State prisoners from State denials of relief and miscellaneous applications to this Court are almost always filed in forma pauperis and constitute about 60% of all petitions in forma pauperis. Since, as this study indicates, they are only rarely filed by lawyers and seldom accompanied by adequate records, the decision whether to entertain these cases is necessarily made upon less information and with greater dispatch than with ordinary petitions for certiorari. A rough index to the disposition of these cases as compared with ordinary petitions for certiorari is afforded by published figures showing the proportion of petitions granted. While 15.2% of the ordinary petitions for certiorari are granted, only 4.2% of the in forma petitions and no miscellaneous applications were granted during the 1950 Term. [12] On an assumption that the certiorari jurisdiction of the Supreme Court ordinarily is not to be exercised merely because a decision below may be wrong, an attempt was made to indicate in terms of considerations affecting the certiorari jurisdiction the sort of question presented. [13] Questions purely of State law seemed to be the chief claim of 30 petitions. Questions probably not of sufficient general importance to warrant the exercise of the certiorari jurisdiction seemed the chief claims in another 61 cases, 44 because the issue was one primarily of fact and 17 because the issue raised no substantial issue not already decided by the Supreme Court. Eighteen cases defied classification on this basis. The remaining 17 cases presented questions of principle, although the majority even of these probably did not present questions of the gravity or general importance usually requisite in other areas for granting certiorari.",papers and disposition in supreme court.[6]
+461,105074,2,1,"In 97 of the 126 cases only the original of the petition was filed; in the other 29 cases, at least one copy of the petition was filed, but in only two cases were there the minimum nine copies required of the ordinary petitions for certiorari. One-half of the petitions contained nine pages or less. Of the 126 petitions, 13 were signed by lawyers. In a classification of the other petitions according to the degree of familiarity with law shown by the petitioners, 53 petitions were found not even to meet a generous standard requiring only that the petitioner intelligibly allege some facts and make some minimum attempt to connect those facts to a legal principle, whether or not the principle was valid or even arguable.",The Petitions for Certiorari.[7]
+462,105074,2,2,"Four of the petitioners whose papers are still on file here [8] submitted over 300 pages of papers in support of the petition for certiorari. The other 120 petitioners filed an average of under 30 pages of supporting papers per case. Full records, though in two cases not in due form, were filed by the petitioners in eight cases, while excerpts from the records both of the trial proceedings and of the State proceedings in which petitioner assailed the validity of the trial proceedings were filed in another 51 cases, as is shown in Table 1. No papers from the record below were filed in 24 of 125 cases. Among the excerpts from the records filed, in 26 cases a State court opinion [9] was filed from some proceeding in which the same issues were presented. There was no citation to, or filing of, an opinion or memorandum order in 46 of the cases. The first column of Table 1 [10] shows in detail what papers from the records below were filed in the Supreme Court.",Papers Filed in Support of the Petition for Certiorari.
+463,105074,2,4,"Table 1, supra, shows what papers were filed by the petitioners and not necessarily all the papers before the Court. In 15 of the 126 cases, the Supreme Court, either because of the seriousness of the allegations or the inadequacy of the record as presented by the petitioner, called for a response by the State. Fourteen responses were filed in accordance with these requests. In addition, the docket of the Supreme Court shows that responses were filed by the State in another 7 cases. In 10 of the 21 responses in these cases, additional parts of the record not already filed by the petitioners thus came before the Court, but the additions do not substantially change the picture presented in Table 1. For example, Table 1, Part 1, shows that in 30 cases, the petitioner filed in the Supreme Court the opinion below or excerpts or cited the opinion; the States filed the opinion below with their responses in an additional 4 cases. Like modifications, in no instance exceeding 5 cases, would be made in other of the items in Table 1 if it included papers filed by the State. The disposition of these cases in the Supreme Court is in marked contrast with the disposition of ordinary petitions for certiorari. Petitions for certiorari by State prisoners from State denials of relief and miscellaneous applications to this Court are almost always filed in forma pauperis and constitute about 60% of all petitions in forma pauperis. Since, as this study indicates, they are only rarely filed by lawyers and seldom accompanied by adequate records, the decision whether to entertain these cases is necessarily made upon less information and with greater dispatch than with ordinary petitions for certiorari. A rough index to the disposition of these cases as compared with ordinary petitions for certiorari is afforded by published figures showing the proportion of petitions granted. While 15.2% of the ordinary petitions for certiorari are granted, only 4.2% of the in forma petitions and no miscellaneous applications were granted during the 1950 Term. [12] On an assumption that the certiorari jurisdiction of the Supreme Court ordinarily is not to be exercised merely because a decision below may be wrong, an attempt was made to indicate in terms of considerations affecting the certiorari jurisdiction the sort of question presented. [13] Questions purely of State law seemed to be the chief claim of 30 petitions. Questions probably not of sufficient general importance to warrant the exercise of the certiorari jurisdiction seemed the chief claims in another 61 cases, 44 because the issue was one primarily of fact and 17 because the issue raised no substantial issue not already decided by the Supreme Court. Eighteen cases defied classification on this basis. The remaining 17 cases presented questions of principle, although the majority even of these probably did not present questions of the gravity or general importance usually requisite in other areas for granting certiorari.","Responses Filed by the States, and Final Disposition in the Supreme Court."
+464,105074,1,4,"Requests were sent by the Administrative Office of the United States Courts to the clerks in all districts in which there were applications for habeas corpus subsequent to a denial of certiorari in the October 1950 Term. In addition to a request for all docket entries and orders or opinions, the clerks were requested to send copies of all pertinent papers filed in the action by the applicant or to answer a questionnaire concerning those papers. In the bulk of the cases, the original papers or copies of them were forwarded to the Administrative Office; these papers, together with the answered questionnaires in the other cases, were the basis of the following analysis.
+Three applications for habeas corpus had been withdrawn and were unavailable; of the remaining 123, 17 were drawn by lawyers. Thirty-four failed to meet the minimum standards for showing some degree of familiarity with law referred to in connection with the petitions for certiorari. [14] Of 122 applications for which data were available, 101 were typed or printed. The number of pages ran slightly less than in the petitions for certiorari; [15] 67 applications for habeas corpus contained 9 pages or less, while 56 contained 10 or more.
+Table 2 below shows to what degree the applicant informed the District Court of the previous certiorari proceedings, and demonstrates that in about 10% of the cases there was not even a reference by the applicant to the fact that he had petitioned for certiorari. Further, in the large majority of cases, there was simply an allegation that a petition for certiorari had been filed and denied. In less than 10% of the cases did the applicant file any papers which would serve to indicate to the District Court what questions were before the Supreme Court. TABLE 2. FILING OF PETITION FOR CERTIORARI IN DISTRICT COURT [16] Total Cases for which data available__________ 123 100.0% Petition for Certiorari field: Certified Petition__________________ 1 Uncertified Petition________________ 10 Excerpts from Petition______________ 1 ________ Total, petition or excerpts filed_____________ 12 9.8 Mere reference to denial of certiorari__ 98 No reference to certiorari proceedings__ 13 ________ Total, no information as to contents of petition____________________________________ 111 90.2
+Somewhat fewer papers, on a percentage basis, were filed by applications in the District Courts than in the Supreme Court concerning the record in the State courts. There seems no explanation for this difference. [17] Of chief significance, however, was the extent to which papers filed in the District Courts were alleged to have been presented to the Supreme Court in the petition for certiorari. It is clear that the District Courts may have learned in oral argument or by other means whether the papers had been filed previously in the Supreme Court, but since such information was thought impossible to obtain, it was necessary to limit the inquiry to allegations that the papers had also been before the Supreme Court. The almost negligible number of cases in which the papers filed were alleged also to have been before the Supreme Court is striking. Even in cases conducted throughout by apparently competent counsel, such allegations were often not made. The failure to make these allegations may reflect either a fear of counsel or applicants without counsel that a demonstration of the presentation made to the Supreme Court would prejudice their cases or perhaps a feeling that it is unimportant to the District Judge that the papers had also been before the Supreme Court. In any event, it has not been a practice, apparently, to allege what papers were before the Supreme Court. Columns 2 and 3 of Table 1, supra, set out information exactly parallel to that contained in Column 1, which shows what papers from the State proceedings were filed in the Supreme Court. Column 2 shows the same information for the District Court, and Column 3 shows how many of the papers before the Supreme Court and then filed in the District Court were alleged to have been filed in the Supreme Court. Comparison of Columns 1 and 3 shows to what extent papers actually before the Supreme Court were alleged to have been there. For example, in 30 cases the Supreme Court had some information concerning the opinion in the State proceedings. The District Court was told, however, that the opinion had been before the Supreme Court in only 3 of those 30 cases. Column 2 shows that altogether there were 21 cases in which the District Courts had information concerning the opinion. A synoptic view of the comparisons made in Table 1 can be had by comparing the line indicating the number of cases in which the record or excerpts were filed. Thus, in over 80% of the cases, the Supreme Court had some part of the State court record, while in just over 70% of the cases, the District Court had some part of the State court record. In less than 6% of the cases was the District Court told by allegation that the parts of the record before it had been in the Supreme Court.
+The issues raised were of course approximately the same as those raised in the Supreme Court, with only insubstantial variation from the figures given above [18] for the types of claims raised in the Supreme Court. But of some significance was a comparison of the claims in the Supreme Court with those made by the same petitioners later in the District Courts. In the 125 cases for which data were available, the chief claim made in the Supreme Court was also the chief claim made in the District Court in 105 cases. That number, of course, is subject to some subjective error because of possibly differing interpretations of what the chief claim of an unclear and unlawyer-like petition is. Perhaps more significant are summaries made which show that the claim that was considered the chief claim in the Supreme Court reappeared, but not necessarily as the chief claim, in 107 of the District Court cases; conversely, in 117 cases, the chief claim before the District Court had been raised in the Supreme Court petition. These data indicate only that it cannot always be assumed that even on the same record and in the same course of proceedings, the emphasis on various claims raised will be the same. Further, in some cases, the claims raised in the District Courts may not have been made at all in the Supreme Court.
+In only 1 case of the 126 was the writ of habeas corpus granted. The District Court had originally denied the application for the writ because of a reluctance to review an application already passed on by the highest State court, but after reversal on appeal, [19] the writ was granted. In 120, the application for the writ has been denied, and 5 are still pending, 1 on remand from appeal. Table 3 sets out the extent to which appeal to the Court of Appeals has been sought or taken. It shows that there have been decisions on appeal in 14 cases with reversals in 3. Of those 3 cases reversed and remanded, one is pending, in one the writ has been granted and in the third the application was withdrawn. TABLE 3. APPEAL FROM DISTRICT COURT DECISIONS Total Cases for which data available_________________________ 126 No entries as to appeal on District Court docket_____________ 66 Certificate of probable cause denied, or leave to appeal in forma pauperis denied_______________________________________ 29 Appeal dismissed; mandamus dismissed_________________________ 5 Appeal pending_______________________________________________ 8 Affirmed on appeal___________________________________________ 11 Reversed and remanded on appeal______________________________ 3 A variety of procedures were adopted in these cases by the District Courts in dealing with the applications. Chief among the orders entered other than to dismiss the applications without more were orders to show cause or to answer, as Table 4 shows. In 23 cases, a lawyer was appointed either as an amicus or as counsel for the applicant. In some cases, the writ of habeas corpus was issued to bring the applicant before the Court. Table 4 shows which of the devices were used and in what combinations. TABLE 4. PROCEDURES USED IN DISPOSING OF APPLICATIONS Total Cases for which data available_______________ 123 100.0% Applications disposed of without more______________ 56 45.6% Orders to Show Cause or Answer: Order to Show Cause____________________________ 37 Order to Show Cause; Counsel appointed for applicant________________________________ 4 Order to Answer________________________________ 3 Order to Answer; Amicus appointed_____ 3 Writs of Habeas Corpus issued: Writ issued___________________________________ 2 Writ issued; Counsel appointed for applicant 3 Writs and Orders: Writ Issued; Order to Show Cause_______________ 1 Writ Issued; Order to Show Cause; Counsel appointed for applicant_______________________ 5 Lawyers Appointed: As amicus, in combination with other orders already listed above_________________________ (3) As counsel for applicant, in connection with other orders already listed above____________ (12) As amicus without other order_________ 2 As counsel for applicant without other order________________________________________ 6 A hearing of some kind was given in 44 cases of the 122 for which data are available. [20] The other 22 cases not disposed of without more were disposed of by withdrawal of the application (one case) or after the answer, the report of the amicus, or both. Certain data concerning the hearings are set out in Table 5. Table 5 shows what procedures were used and how long the hearing lasted. It shows that the applicant was present at 26 hearings, with counsel also in 17 of those cases. The applicant was represented by counsel in 31 cases, but the applicant himself was not present in 14 of those 31 cases. The length of the hearings for which data were available was an hour or less in two-thirds of the cases. TABLE 5. PRESENCE AT HEARING AND LENGTH OF HEARING I. Total Cases in which hearings held________________________________ 44 Data unavailable__________________________________________________ 1 Applicant and counsel present_____________________________________ 17 Applicant present without counsel_________________________________ 9 Applicant absent but represented by counsel [21] _________________ 14 Applicant absent and not represented by counsel___________________ 3 II. Total Cases for which data as to length of hearing available [22] 24 Length of hearing: Fifteen minutes or less______________________________________ 2 Fifteen to thirty minutes____________________________________ 8 Thirty minutes to one hour___________________________________ 6 ____ Total, one hour or less_____________________________________ 16 ==== Two hours____________________________________________________ 1 Two and a half hours_________________________________________ 1 Three hours__________________________________________________ 1 Four hours___________________________________________________ 4 Three days___________________________________________________ 1 ____ Total, over one hour________________________________________ 8 The average time of disposition of applications for habeas corpus in the District Courts was 59.4 days, [23] as compared with the disposition time in the Supreme Court of 52.5 days. In the District Court, however, only 56 applications were dismissed without more, while in the Supreme Court all but 35, or 91 petitions for certiorari, were disposed of without further action such as the filing of a response by the State. For whatever significance it might have, the important figure seemed to be that showing the number of cases in which the District Court disposition time was greater than in the Supreme Court; of the 122 cases for which figures are available, 45 took longer from the time of filing until denial of the application for habeas corpus than they had in the Supreme Court. Of those 45, only 4 had been dismissed without further pleadings or action of some sort. In 98 cases, the District Courts indicated their reasons for denying the applications for habeas corpus. As will be seen from Table 6, the District Courts decided only about half of the cases directly on the merits, either holding against the applicant on the facts or on his constitutional claim. In 45, or almost half, of the 98 cases, the application was denied on various grounds bearing on the relation between the Federal and State courts in these cases. Twenty-nine of these 45 denials were based on the applicant's failure to exhaust the State remedy. Since this reason was often not amplified, it is not possible TABLE 6. GROUNDS FOR DENIAL OF APPLICATIONS IN DISTRICT COURTS Total Cases in Survey___________________________________________________ 126 Pending_____________________________________________________________ 5 Writ granted________________________________________________________ 1 Total cases for which data available________________________________ 120 I. Reasons Stated for Dismissal. Reasons not going directly to the merits: Issue fairly considered in State Court________________________ 7 Applicant had his day in State Court, and Federal Courts will not ordinarily reexamine________________________ 9 Failure to exhaust State remedy_______________________________ 29 ____ Total____________________________________________________________ 45 Reasons going directly to the merits: Want of a federal question____________________________________ 21 Applicant not within invoked Federal doctrine [24] ___________ 8 Claim not supported by facts__________________________________ 17 Insufficient facts alleged in support of claim________________ 2 ____ Total____________________________________________________________ 48 Miscellaneous: Application withdrawn by applicant____________________________ 3 Lack of jurisdiction—wrong District_____________________ 1 Same issue formerly considered in a Federal Court_____________ 1 ____ Total___________________________________________________________ 5 No Reason Stated except that applicant not entitled to writ, or lack of jurisdiction to grant_________________________ 22 II. Probable Reasons where no reason stated. Issue fairly considered in State Court___________________________ 1 Want of a Federal question_______________________________________ 18 Applicant not within invoked Federal doctrine____________________ 1 Claim not supported by the facts_________________________________ 2 to classify these cases further. But from those cases in which a more detailed statement of the reason was made and from other information available in some cases, it is possible to say that there were several views below as to what the requirement of exhaustion implied. In some cases, the applicant had not complied with formal requirements, such as those prescribing the time of filing or the kind of papers to be filed for an appeal to a higher State court. In others, the applicant had fully invoked one remedy, but other State remedies were still available, or the remedy already invoked was, under the State procedural rules, available again. In some cases, of course, the applicant failed to allege or show any real attempt to invoke a State remedy. The other 16 of the 45 cases not decided directly on the merits were disposed of as the result of varying degrees of reliance on the State adjudication. As Table 6 shows, in some cases the judges below stated that the applicant had had his day in the State courts and the Federal courts will not ordinarily reexamine State denials of relief to prisoners, while in others they felt that the claim had been fairly considered in the State courts.",papers and disposition in district court.
+465,105074,2,1,"Three applications for habeas corpus had been withdrawn and were unavailable; of the remaining 123, 17 were drawn by lawyers. Thirty-four failed to meet the minimum standards for showing some degree of familiarity with law referred to in connection with the petitions for certiorari. [14] Of 122 applications for which data were available, 101 were typed or printed. The number of pages ran slightly less than in the petitions for certiorari; [15] 67 applications for habeas corpus contained 9 pages or less, while 56 contained 10 or more.",The Applications for Habeas Corpus.
+466,105074,2,2,"Table 2 below shows to what degree the applicant informed the District Court of the previous certiorari proceedings, and demonstrates that in about 10% of the cases there was not even a reference by the applicant to the fact that he had petitioned for certiorari. Further, in the large majority of cases, there was simply an allegation that a petition for certiorari had been filed and denied. In less than 10% of the cases did the applicant file any papers which would serve to indicate to the District Court what questions were before the Supreme Court. TABLE 2. FILING OF PETITION FOR CERTIORARI IN DISTRICT COURT [16] Total Cases for which data available__________ 123 100.0% Petition for Certiorari field: Certified Petition__________________ 1 Uncertified Petition________________ 10 Excerpts from Petition______________ 1 ________ Total, petition or excerpts filed_____________ 12 9.8 Mere reference to denial of certiorari__ 98 No reference to certiorari proceedings__ 13 ________ Total, no information as to contents of petition____________________________________ 111 90.2",Supporting Papers Filed: Reference to Certiorari.
+467,105074,2,3,"Somewhat fewer papers, on a percentage basis, were filed by applications in the District Courts than in the Supreme Court concerning the record in the State courts. There seems no explanation for this difference. [17] Of chief significance, however, was the extent to which papers filed in the District Courts were alleged to have been presented to the Supreme Court in the petition for certiorari. It is clear that the District Courts may have learned in oral argument or by other means whether the papers had been filed previously in the Supreme Court, but since such information was thought impossible to obtain, it was necessary to limit the inquiry to allegations that the papers had also been before the Supreme Court. The almost negligible number of cases in which the papers filed were alleged also to have been before the Supreme Court is striking. Even in cases conducted throughout by apparently competent counsel, such allegations were often not made. The failure to make these allegations may reflect either a fear of counsel or applicants without counsel that a demonstration of the presentation made to the Supreme Court would prejudice their cases or perhaps a feeling that it is unimportant to the District Judge that the papers had also been before the Supreme Court. In any event, it has not been a practice, apparently, to allege what papers were before the Supreme Court. Columns 2 and 3 of Table 1, supra, set out information exactly parallel to that contained in Column 1, which shows what papers from the State proceedings were filed in the Supreme Court. Column 2 shows the same information for the District Court, and Column 3 shows how many of the papers before the Supreme Court and then filed in the District Court were alleged to have been filed in the Supreme Court. Comparison of Columns 1 and 3 shows to what extent papers actually before the Supreme Court were alleged to have been there. For example, in 30 cases the Supreme Court had some information concerning the opinion in the State proceedings. The District Court was told, however, that the opinion had been before the Supreme Court in only 3 of those 30 cases. Column 2 shows that altogether there were 21 cases in which the District Courts had information concerning the opinion. A synoptic view of the comparisons made in Table 1 can be had by comparing the line indicating the number of cases in which the record or excerpts were filed. Thus, in over 80% of the cases, the Supreme Court had some part of the State court record, while in just over 70% of the cases, the District Court had some part of the State court record. In less than 6% of the cases was the District Court told by allegation that the parts of the record before it had been in the Supreme Court.",Supporting Papers Filed: Reference to State Proceedings.
+468,105074,2,5,"In only 1 case of the 126 was the writ of habeas corpus granted. The District Court had originally denied the application for the writ because of a reluctance to review an application already passed on by the highest State court, but after reversal on appeal, [19] the writ was granted. In 120, the application for the writ has been denied, and 5 are still pending, 1 on remand from appeal. Table 3 sets out the extent to which appeal to the Court of Appeals has been sought or taken. It shows that there have been decisions on appeal in 14 cases with reversals in 3. Of those 3 cases reversed and remanded, one is pending, in one the writ has been granted and in the third the application was withdrawn. TABLE 3. APPEAL FROM DISTRICT COURT DECISIONS Total Cases for which data available_________________________ 126 No entries as to appeal on District Court docket_____________ 66 Certificate of probable cause denied, or leave to appeal in forma pauperis denied_______________________________________ 29 Appeal dismissed; mandamus dismissed_________________________ 5 Appeal pending_______________________________________________ 8 Affirmed on appeal___________________________________________ 11 Reversed and remanded on appeal______________________________ 3 A variety of procedures were adopted in these cases by the District Courts in dealing with the applications. Chief among the orders entered other than to dismiss the applications without more were orders to show cause or to answer, as Table 4 shows. In 23 cases, a lawyer was appointed either as an amicus or as counsel for the applicant. In some cases, the writ of habeas corpus was issued to bring the applicant before the Court. Table 4 shows which of the devices were used and in what combinations. TABLE 4. PROCEDURES USED IN DISPOSING OF APPLICATIONS Total Cases for which data available_______________ 123 100.0% Applications disposed of without more______________ 56 45.6% Orders to Show Cause or Answer: Order to Show Cause____________________________ 37 Order to Show Cause; Counsel appointed for applicant________________________________ 4 Order to Answer________________________________ 3 Order to Answer; Amicus appointed_____ 3 Writs of Habeas Corpus issued: Writ issued___________________________________ 2 Writ issued; Counsel appointed for applicant 3 Writs and Orders: Writ Issued; Order to Show Cause_______________ 1 Writ Issued; Order to Show Cause; Counsel appointed for applicant_______________________ 5 Lawyers Appointed: As amicus, in combination with other orders already listed above_________________________ (3) As counsel for applicant, in connection with other orders already listed above____________ (12) As amicus without other order_________ 2 As counsel for applicant without other order________________________________________ 6 A hearing of some kind was given in 44 cases of the 122 for which data are available. [20] The other 22 cases not disposed of without more were disposed of by withdrawal of the application (one case) or after the answer, the report of the amicus, or both. Certain data concerning the hearings are set out in Table 5. Table 5 shows what procedures were used and how long the hearing lasted. It shows that the applicant was present at 26 hearings, with counsel also in 17 of those cases. The applicant was represented by counsel in 31 cases, but the applicant himself was not present in 14 of those 31 cases. The length of the hearings for which data were available was an hour or less in two-thirds of the cases. TABLE 5. PRESENCE AT HEARING AND LENGTH OF HEARING I. Total Cases in which hearings held________________________________ 44 Data unavailable__________________________________________________ 1 Applicant and counsel present_____________________________________ 17 Applicant present without counsel_________________________________ 9 Applicant absent but represented by counsel [21] _________________ 14 Applicant absent and not represented by counsel___________________ 3 II. Total Cases for which data as to length of hearing available [22] 24 Length of hearing: Fifteen minutes or less______________________________________ 2 Fifteen to thirty minutes____________________________________ 8 Thirty minutes to one hour___________________________________ 6 ____ Total, one hour or less_____________________________________ 16 ==== Two hours____________________________________________________ 1 Two and a half hours_________________________________________ 1 Three hours__________________________________________________ 1 Four hours___________________________________________________ 4 Three days___________________________________________________ 1 ____ Total, over one hour________________________________________ 8 The average time of disposition of applications for habeas corpus in the District Courts was 59.4 days, [23] as compared with the disposition time in the Supreme Court of 52.5 days. In the District Court, however, only 56 applications were dismissed without more, while in the Supreme Court all but 35, or 91 petitions for certiorari, were disposed of without further action such as the filing of a response by the State. For whatever significance it might have, the important figure seemed to be that showing the number of cases in which the District Court disposition time was greater than in the Supreme Court; of the 122 cases for which figures are available, 45 took longer from the time of filing until denial of the application for habeas corpus than they had in the Supreme Court. Of those 45, only 4 had been dismissed without further pleadings or action of some sort. In 98 cases, the District Courts indicated their reasons for denying the applications for habeas corpus. As will be seen from Table 6, the District Courts decided only about half of the cases directly on the merits, either holding against the applicant on the facts or on his constitutional claim. In 45, or almost half, of the 98 cases, the application was denied on various grounds bearing on the relation between the Federal and State courts in these cases. Twenty-nine of these 45 denials were based on the applicant's failure to exhaust the State remedy. Since this reason was often not amplified, it is not possible TABLE 6. GROUNDS FOR DENIAL OF APPLICATIONS IN DISTRICT COURTS Total Cases in Survey___________________________________________________ 126 Pending_____________________________________________________________ 5 Writ granted________________________________________________________ 1 Total cases for which data available________________________________ 120 I. Reasons Stated for Dismissal. Reasons not going directly to the merits: Issue fairly considered in State Court________________________ 7 Applicant had his day in State Court, and Federal Courts will not ordinarily reexamine________________________ 9 Failure to exhaust State remedy_______________________________ 29 ____ Total____________________________________________________________ 45 Reasons going directly to the merits: Want of a federal question____________________________________ 21 Applicant not within invoked Federal doctrine [24] ___________ 8 Claim not supported by facts__________________________________ 17 Insufficient facts alleged in support of claim________________ 2 ____ Total____________________________________________________________ 48 Miscellaneous: Application withdrawn by applicant____________________________ 3 Lack of jurisdiction—wrong District_____________________ 1 Same issue formerly considered in a Federal Court_____________ 1 ____ Total___________________________________________________________ 5 No Reason Stated except that applicant not entitled to writ, or lack of jurisdiction to grant_________________________ 22 II. Probable Reasons where no reason stated. Issue fairly considered in State Court___________________________ 1 Want of a Federal question_______________________________________ 18 Applicant not within invoked Federal doctrine____________________ 1 Claim not supported by the facts_________________________________ 2 to classify these cases further. But from those cases in which a more detailed statement of the reason was made and from other information available in some cases, it is possible to say that there were several views below as to what the requirement of exhaustion implied. In some cases, the applicant had not complied with formal requirements, such as those prescribing the time of filing or the kind of papers to be filed for an appeal to a higher State court. In others, the applicant had fully invoked one remedy, but other State remedies were still available, or the remedy already invoked was, under the State procedural rules, available again. In some cases, of course, the applicant failed to allege or show any real attempt to invoke a State remedy. The other 16 of the 45 cases not decided directly on the merits were disposed of as the result of varying degrees of reliance on the State adjudication. As Table 6 shows, in some cases the judges below stated that the applicant had had his day in the State courts and the Federal courts will not ordinarily reexamine State denials of relief to prisoners, while in others they felt that the claim had been fairly considered in the State courts.",Disposition of the Cases in the District Courts.
+469,1528394,1,2,"Mr. Speed, A.G., and Mr. Butler: By the settled practice of the courts of the United States, upon application for a writ of habeas corpus, if it appear upon the facts stated by the petitioner, all of which shall be taken to be true, that he could not be discharged upon a return of the writ, then no writ will be issued. Therefore the questions resolve themselves into two: I. Had the military commission jurisdiction to hear and determine the case submitted to it? II. The jurisdiction failing, had the military authorities of the United States a right, at the time of filing the petition, to detain the petitioner in custody as a military prisoner, or for trial before a civil court? 1. A military commission derives its powers and authority wholly from martial law; and by that law and by military authority only are its proceedings to be judged or reviewed. [†] 2. Marital law is the will of the commanding officer of an armed force, or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler. [] 3. Military law is the rules and regulations made by the legislative power of the State for the government of its land and naval forces. [†] 4. The laws of war (when this expression is not used as a generic term) are the laws which govern the conduct of belligerents towards each other and other nations, flagranti bello. These several kinds of laws should not be confounded, as their adjudications are referable to distinct and different tribunals. Infractions of the laws of war can only be punished or remedied by retaliation, negotiation, or an appeal to the opinion of nations. Offences against military laws are determined by tribunals established in the acts of the legislature which create these laws — such as courts martial and courts of inquiry. The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge; and his sole order punishes or acquits the alleged offender. But the necessities and effects of warlike operations which create the law also give power incidental to its execution. It would be impossible for the commanding general of an army to investigate each fact which might be supposed to interfere with his movements, endanger his safety, aid his enemy, or bring disorder and crime into the community under his charge. He, therefore, must commit to his officers, and in practice, to a board of officers, as a tribunal, by whatever name it may be called, the charge of examining the circumstances and reporting the facts in each particular case, and of advising him as to its disposition — the whole matter to be then determined and executed by his order. [] Hence arise military commissions, to investigate and determine, not offences against military law by soldiers and sailors, not breaches of the common laws of war by belligerents, but the quality of the acts which are the proper subject of restraint by martial law. Martial law and its tribunals have thus come to be recognized in the military operations of all civilized warfare. Washington, in the Revolutionary war, had repeated recourse to military commissions. General Scott resorted to them as instruments with which to govern the people of Mexico within his lines. They are familiarly recognized in express terms by the acts of Congress of July 17th, 1862, chap. 201, sec. 5; March 18th, 1863, chap. 75, sec. 36; Resolution No. 18, March 11th, 1862; and their jurisdiction over certain offences is also recognized by these acts. But, as has been seen, military commissions do not thus derive their authority. Neither is their jurisdiction confined to the classes of offences therein enumerated. Assuming the jurisdiction where military operations are being in fact carried on, over classes of military offences, Congress, by this legislation, from considerations of public safety, has endeavored to extend the sphere of that jurisdiction over certain offenders who were beyond what might be supposed to be the limit of actual military occupation. As the war progressed, being a civil war, not unlikely, as the facts in this record abundantly show, to break out in any portion of the Union, in any form of insurrection, the President, as commander-in-chief, by his proclamation of September 24th, 1862, ordered: That during the existing insurrection, and as a necessary means for suppressing the same, all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels, against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts martial or military commission. Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or who now, or hereafter during the Rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement, by any military authority, or by the sentence of any court martial or military commission. This was an exercise of his sovereignty in carrying on war, which is vested by the Constitution in the President. [] This proclamation, which by its terms was to continue during the then existing insurrection, was in full force during the pendency of the proceedings complained of, at the time of the filing of this petition, and is still unrevoked. While we do not admit that any legislation of Congress was needed to sustain this proclamation of the President, it being clearly within his power, as commander-in-chief, to issue it; yet, if it is asserted that legislative action is necessary to give validity to it, Congress has seen fit to expressly ratify the proclamation by the act of March 3d, 1863, by declaring that the President, whenever in his judgment the public safety may require it, is authorized to suspend the writ of habeas corpus in any case throughout the United States, and in any part thereof. The offences for which the petitioner for the purpose of this hearing is confessed to be guilty, are the offences enumerated in this proclamation. The prison in which he is confined is a military prison therein mentioned. As to him, his acts and imprisonment, the writ of habeas corpus is expressly suspended. Apparently admitting by his petition that a military commission might have jurisdiction in certain cases, the petitioner seeks to except himself by alleging that he is a citizen of Indiana, and has never been in the naval or military service of the United States, or since the commencement of the Rebellion a resident of a rebel State, and that, therefore, it had been out of his power to have acquired belligerent rights and to have placed himself in such a relation to the government as to enable him to violate the laws of war. But neither residence nor propinquity to the field of actual hostilities is the test to determine who is or who is not subject to martial law, even in a time of foreign war, and certainly not in a time of civil insurrection. The commander-in-chief has full power to make an effectual use of his forces. He must, therefore, have power to arrest and punish one who arms men to join the enemy in the field against him; one who holds correspondence with that enemy; one who is an officer of an armed force organized to oppose him; one who is preparing to seize arsenals and release prisoners of war taken in battle and confined within his military lines. These crimes of the petitioner were committed within the State of Indiana, where his arrest, trial, and imprisonment took place; within a military district of a geographical military department, duly established by the commander-in-chief; within the military lines of the army, and upon the theatre of military operations; in a State which had been and was then threatened with invasion, having arsenals which the petitioner plotted to seize, and prisoners of war whom he plotted to liberate; where citizens were liable to be made soldiers, and were actually ordered into the ranks; and to prevent whose becoming soldiers the petitioner conspired with and armed others. Thus far the discussion has proceeded without reference to the effect of the Constitution upon war-making powers, duties, and rights, save to that provision which makes the President commander-in-chief of the armies and navies. Does the Constitution provide restraint upon the exercise of this power? The people of every sovereign State possess all the rights and powers of government. The people of these States in forming a more perfect Union, to insure domestic tranquillity, and to provide for the common defence, have vested the power of making and carrying on war in the general government, reserving to the States, respectively, only the right to repel invasion and suppress insurrection of such imminent danger as will not admit of delay. This right and power thus granted to the general government is in its nature entirely executive, and in the absence of constitutional limitations would be wholly lodged in the President, as chief executive officer and commander-in-chief of the armies and navies. Lest this grant of power should be so broad as to tempt its exercise in initiating war, in order to reap the fruits of victory, and, therefore, be unsafe to be vested in a single branch of a republican government, the Constitution has delegated to Congress the power of originating war by declaration, when such declaration is necessary to the commencement of hostilities, and of provoking it by issuing letters of marque and reprisal; consequently, also, the power of raising and supporting armies, maintaining a navy, employing the militia, and of making rules for the government of all armed forces while in the service of the United States. To keep out of the hands of the Executive the fruits of victory, Congress is also invested with the power to make rules for the disposition of captures by land or water. After war is originated, whether by declaration, invasion, or insurrection, the whole power of conducting it, as to manner, and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. [] During the war his powers must be without limit, because, if defending, the means of offence may be nearly illimitable; or, if acting offensively, his resources must be proportionate to the end in view, — to conquer a peace. New difficulties are constantly arising, and new combinations are at once to be thwarted, which the slow movement of legislative action cannot meet. [] These propositions are axiomatic in the absence of all restraining legislation by Congress. Much of the argument on the side of the petitioner will rest, perhaps, upon certain provisions — not in the Constitution itself, and as originally made, but now seen in the Amendments made in 1789: the fourth, fifth, and sixth amendments. They may as well be here set out: 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. 5. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. 6. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ... . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. In addition to these, there are two preceding amendments which we may also mention, to wit: the second and third. They are thus: 2. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. 3. No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law. It will be argued that the fourth, fifth, and sixth articles, as above given, are restraints upon the war-making power; but we deny this. All these amendments are in pari materiâ and if either is a restraint upon the President in carrying on war, in favor of the citizen, it is difficult to see why all of them are not. Yet will it be argued that the fifth article would be violated in depriving of life, liberty, or property, without due process of law, armed rebels marching to attack the capital? Or that the fourth would be violated by searching and seizing the papers and houses of persons in open insurrection and war against the government? It cannot properly be so argued, any more than it could be that it was intended by the second article (declaring that the right of the people to keep and bear arms shall not be infringed) to hinder the President from disarming insurrectionists, rebels, and traitors in arms while he was carrying on war against them. These, in truth, are all peace provisions of the Constitution, and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law. By the Constitution, as originally adopted, no limitations were put upon the war-making and war-conducting powers of Congress and the President; and after discussion, and after the attention of the country was called to the subject, no other limitation by subsequent amendment has been made, except by the Third Article, which prescribes that no soldier shall be quartered in any house in time of peace without consent of the owner, or in time of war, except in a manner prescribed by law. This, then, is the only expressed constitutional restraint upon the President as to the manner of carrying on war. There would seem to be no implied one; on the contrary, while carefully providing for the privilege of the writ of habeas corpus in time of peace, the Constitution takes it for granted that it will be suspended in case of rebellion or invasion (i.e., in time of war), when the public safety requires it. The second and third sections of the act relating to habeas corpus, of March 3d, 1863, apply only to those persons who are held as state or political offenders, and not to those who are held as prisoners of war. The petitioner was as much a prisoner of war as if he had been taken in action with arms in his hands. They apply, also, only to those persons, the cause of whose detention is not disclosed; and not to those who, at the time when the lists by the provisions of said sections are to be furnished to the court, are actually undergoing trial before military tribunals upon written charges made against them. The law was framed to prevent imprisonment for an indefinite time without trial, not to interfere with the case of prisoners undergoing trial. Its purpose was to make it certain that such persons should be tried. Notwithstanding, therefore, the act of March 3, 1863, the commission had jurisdiction, and properly tried the prisoner. The petitioner does not complain that he has been kept in ignorance of the charges against him, or that the investigation of those charges has been unduly delayed. Finally, if the military tribunal has no jurisdiction, the petitioner may be held as a prisoner of war, aiding with arms the enemies of the United States, and held, under the authority of the United States, until the war terminates, then to be handed over by the military to the civil authorities, to be tried for his crimes under the acts of Congress, and before the courts which he has selected. ON THE SIDE OF THE PETITIONER. Mr. David Dudley Field: Certain topics have been brought into this discussion which have no proper place in it, and which I shall endeavor to keep out of it. This is not a question of the discipline of camps; it is not a question of the government of armies in the field; it is not a question respecting the power of a conqueror over conquered armies or conquered states. It is not a question, how far the legislative department of the government can deal with the question of martial rule. Whatever has been done in these cases, has been done by the executive department alone. Nor is it a question of the patriotism, or the character, or the services of the late chief magistrate, or of his constitutional advisers. It is a question of the rights of the citizen in time of war. Is it true, that the moment a declaration of war is made, the executive department of this government, without an act of Congress, becomes absolute master of our liberties and our lives? Are we, then, subject to martial rule, administered by the President upon his own sense of the exigency, with nobody to control him, and with every magistrate and every authority in the land subject to his will alone? These are the considerations which give to the case its greatest significance. But we are met with the preliminary objection, that you cannot consider it for want of JURISDICTION. The objection is twofold: first, that the Circuit Court of Indiana had not jurisdiction to hear the case there presented; and, second, that this court has not jurisdiction to hear and decide the questions thus certified. First. As to the jurisdiction of the Circuit Court. That depended on the fourteenth section of the Judiciary Act of 1789, and on the Habeas Corpus Act of 1863. The former was, in Bollman's case, [] held to authorize the courts, as well as the judges, to issue the writ for the purpose of inquiring into the cause of commitment. The act of March 3d, 1863, after providing that the Secretaries of State and of War shall furnish to the judges of the Circuit and District Courts a list of political and state prisoners, and of all others, except prisoners of war, goes on to declare, that if a grand jury has had a session, and has adjourned without finding an indictment, thereupon it shall be the duty of the judge of said court forthwith to make an order, that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged. Upon this act the objection is, first, that the application of the petitioner should have been made to one of the judges of the circuit, instead of the court itself; and, second, that the petition does not show whether it was made under the second or the third section. To the former objection the answer is, first, that the decision in Bollman's case, just mentioned, covers this case; for the same reasoning which gives the court power to proceed under the fourteenth section of the act of 1789, gives the court power to proceed under the second and third sections of the act of 1863. The second answer is that, by the provisos of the second section, the court is expressly mentioned as having the power. The other objection to the jurisdiction of the Circuit Court is, that the petition does not show under which section of the act it was presented. It states that the petitioner is held a prisoner under the authority of the President; that a term has been held, and that a grand jury has been in attendance, and has adjourned without indicting. It does not state whether a list has been furnished to the judges by the Secretary of State and the Secretary of War, and, therefore, argues the learned counsel, the court has no jurisdiction. That is to say, the judges, knowing themselves whether the list has, or has not been furnished, cannot proceed, because we have not told them by our petition what they already know, and what we ourselves might not know, and perhaps could not know, because the law does not make it necessary that the list shall be filed, or that anybody shall be informed of it but the judges. Second. As to the jurisdiction of this court. Supposing the Circuit Court to have had jurisdiction, has this court jurisdiction to hear these questions as they are certified? There are various objections. It is said that a division of opinion can be certified only in a cause, and that this is not a cause. It was decided by this court, in Holmes v. Jennison, [] that a proceeding on habeas corpus is a suit, and suit is a more comprehensive word than cause. The argument is, that it is not a cause until the adverse party comes in. Is not a suit commenced before the defendant is brought into court? Is the defendant's appearance the first proceeding in a cause? There have been three acts in respect to this writ of habeas corpus. The first of 1789; then the act passed in 1833; and, finally, the act of 1842. The last act expressly designates the proceeding as a cause. Another objection is, that there must be parties; that is, at least two parties, and that here is only one. This argument is derived from the direction in the act, that the point must be stated upon the request of either party or their counsel. It is said that either party imports two, and if there are not two, there can be no certificate. This is too literal: qui hœret in litera hæet in cortice. The language is elliptical. What is meant is, any party or parties, his or their counsel. Again: either, if precisely used, would exclude all over two, because either strictly means one of two; and if there are three parties or more, as there may be, you cannot have a certificate. It is not unusual, in proceedings in rem, to have several intervenors and claimants: what are we to do then? The answer must be, that either is an equivalent word for any; and that whoever may happen to be a party, whether he stand alone or with others, may ask for the certificate. The words either party were introduced, not for restriction but enlargement. The purpose was to enable any party to bring the case here; otherwise it might have been argued, perhaps, that all parties must join in asking for the certificate. The purpose of the act was to prevent a failure of justice, when the two judges of the Circuit Court were divided in opinion. The reason of the rule is as applicable to a case with one party as if there were two. Whether a question shall be certified to this court, depends upon the point in controversy. If it concerns a matter of right, and not of discretion, there is as much reason for its being sent ex parte as for its being sent inter partes. This very case is an illustration. Here a writ is applied for, or an order is asked. The judges do not agree about the issue of the writ, or the granting of the order. Upon their action the lives of these men depend. Shall there be a failure of justice? The question presented to the Circuit Court was not merely a formal one; whether an initial writ should issue. It is the practice, upon petitions for habeas corpus, to consider whether, upon the facts presented, the prisoners, if brought up, would be remanded. The presentation of the petition brings before the court, at the outset, the merits, to a certain extent, of the whole case. That was the course pursued in Passmore Williamson's case; [] in Rex v. Ennis; [†] in the case of the Three Spanish Sailors; [‡] in Hobhouse's case; [§] in Husted's case; [†] and in Ferguson's case; [¶] and in this court, in Watkins's case, [] where the disposition of the case turned upon the point whether, if the writ were issued, the petitioner would be remanded upon the facts as they appeared. There may, indeed, be cases where only one party can appear, that are at first and must always remain ex parte. Here, however, there were, in fact, two parties. Who were they? The record tells us: Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before the judges aforesaid, comes Jonathan W. Gordon, Esq., of counsel for said Milligan, and files here in open court the petition of said Milligan to be discharged. At the same time comes, also, John Hanna, Esq., the attorney prosecuting the pleas of the United States in this behalf. And thereupon, by agreement, this application is submitted to the court, and day is given, &c. The next day the case came on again, and the certificate was made. In point of fact, therefore, this cause had all the solemnity which two parties could give it. The government came into court, and submitted the case in Indiana, for the very purpose of having it brought to Washington. A still additional objection made to the jurisdiction of this court is, that no questions can be certified except those which arise upon the trial. The answer is, first, that there has been a trial, in its proper sense, as applicable to this case. The facts are all before the court. A return could not vary them. The case has been heard upon the petition, as if that contained all that need be known, or could be known. The practice is not peculiar to habeas corpus; it is the same on application for mandamus, or for attachments in cases of contempt; in both which cases the court sometimes hears the whole matter on the first motion, and sometimes postpones it till formal pleadings are put in. In either case, the result is the same. But, secondly, if it were not so, is it correct to say that a certificate can only be made upon a trial? To sustain this position, the counsel refers to the case of Davis v. Burden. [] But that case expressly reserves the question. It is admitted that the question of jurisdiction is a question that may be certified. The qualification insisted upon is, that no question can be certified unless it arose upon the trial of the cause, or be a question of jurisdiction. This is a question of jurisdiction. It is a question of the jurisdiction of the Circuit Court to grant the writ of habeas corpus, and to liberate these men; and that question brings up all the other questions in the cause. Yet another objection to the jurisdiction of this court is, that the case must be one in which the answer to the questions when given shall be final; that is to say, the questions come here to be finally decided. What does that mean? Does it mean that the same thing can never be debated again? Certainly not. It means that the decision shall be final for the two judges who certified the difference of opinion, so that when the answer goes down from this court they shall act according to its order, as if they had originally decided in the same way. Another objection to the jurisdiction of this court is, that the whole case is certified. The answer is, that no question is certified except those which actually arose before the court at the time, and without considering which it could not move at all. That is the first answer. The second is, that if too much is certified, the court will divide the questions, and answer only those which it finds to be properly certified, as it did in the Silliman v. Hudson River Bridge Company [] case. The last objection to the jurisdiction of this court is, that the case is ended; because, it is to be presumed that these unfortunate men have been hanged. Is it to be presumed that any executive officer of this country, though he arrogate to himself this awful power of military government, would venture to put to death three men, who claim that they are unjustly convicted, and whose case is considered of such gravity by the Circuit Court of the United States that it certifies the question to the Supreme Court? The suggestion is disrespectful to the executive, and I am glad to believe that it has no foundation in fact. All the objections, then, are answered. There is nothing, then, in the way of proceeding to",the merits or main question.
+470,1528394,1,3,"The argument upon the questions naturally divides itself into two parts: First. Was the military commission a competent tribunal for the trial of the petitioners upon the charges upon which they were convicted and sentenced? Second. If it was not a competent tribunal, could the petitioners be released by the Circuit Court of the United States for the District of Indiana, upon writs of habeas corpus or otherwise? The discussion of the competency of the military commission is first in order, because, if the petitioners were lawfully tried and convicted, it is useless to inquire how they could be released from an unlawful imprisonment. If, on the other hand, the tribunal was incompetent, and the conviction and sentence nullities, then the means of relief become subjects of inquiry, and involve the following considerations: 1. Does the power of suspending the privilege of the writ of habeas corpus appertain to all the great departments of government concurrently, or to some only, and which of them? 2. If the power is concurrent, can its exercise by the executive or judicial department be restrained or regulated by act of Congress? 3. If the power appertains to Congress alone, or if Congress may control its exercise by the other departments, has that body so exercised its functions as to leave to the petitioners the privilege of the writ, or to entitle them to their discharge? In considering the first question, that of the competency of the military tribunal for the trial of the petitioners upon those charges, let me first call attention to the dates of the transactions. Let it be observed next, that for the same offences as those set forth in the charges and specifications, the petitioners could have been tried and punished by the ordinary civil tribunals. Let it also be remembered, that Indiana, at the time of this trial, was a peaceful State; the courts were all open; their processes had not been interrupted; the laws had their full sway. Then let it be remembered that the petitioners were simple citizens, not belonging to the army or navy; not in any official position; not connected in any manner with the public service. The evidence against them is not to be found in this record, and it is immaterial. Their guilt or their innocence does not affect the question of the competency of the tribunal by which they were judged. Bearing in mind, therefore, the nature of the charges, and the time of the trial and sentence; bearing in mind, also, the presence and undisputed authority of the civil tribunals and the civil condition of the petitioners, we ask by what authority they were withdrawn from their natural judges? What is a military commission? Originally, it appears to have been an advisory board of officers, convened for the purpose of informing the conscience of the commanding officer, in cases where he might act for himself if he chose. General Scott resorted to it in Mexico for his assistance in governing conquered places. The first mention of it in an act of Congress appears to have been in the act of July 22, 1861, where the general commanding a separate department, or a detached army, was authorized to appoint a military board, or commission, of not less than three, or more than five officers, to examine the qualifications and conduct of commissioned officers of volunteers. Subsequently, military commissions are mentioned in four acts of Congress, but in none of them is any provision made for their organization, regulation, or jurisdiction, further than that it is declared that in time of war or rebellion, spies may be tried by a general court-martial or military commission; and that persons who are in the military service of the United States, and subject to the Articles of War, may also be tried by the same, for murder, and certain other infamous crimes. These acts do not confer upon military commissions jurisdiction over any persons other than those in the military service and spies. There being, then, no act of Congress for the establishment of the commission, it depended entirely upon the executive will for its creation and support. This brings up the true question now before the court: Has the President, in time of war, upon his own mere will and judgment, the power to bring before his military officers any person in the land, and subject him to trial and punishment, even to death? The proposition is stated in this form, because it really amounts to this. If the President has this awful power, whence does he derive it? He can exercise no authority whatever but that which the Constitution of the country gives him. Our system knows no authority beyond or above the law. We may, therefore, dismiss from our minds every thought of the President's having any prerogative, as representative of the people, or as interpreter of the popular will. He is elected by the people to perform those functions, and those only, which the Constitution of his country, and the laws made pursuant to that Constitution, confer. The plan of argument which I propose is, first to examine the text of the Constitution. That instrument, framed with the greatest deliberation, after thirteen years' experience of war and peace, should be accepted as the authentic and final expression of the public judgment, regarding that form and scope of government, and those guarantees of private rights, which legal science, political philosophy, and the experience of previous times had taught as the safest and most perfect. All attempts to explain it away, or to evade or pervert it, should be discountenanced and resisted. Beyond the line of such an argument, everything else ought, in strictness, to be superfluous. But, I shall endeavor to show, further, that the theory of our government, for which I am contending, is the only one compatible with civil liberty; and, by what I may call an historical argument, that this theory is as old as the nation, and that even in the constitutional monarchies of England and France that notion of executive power, which would uphold military commissions, like the one against which I am speaking, has never been admitted. What are the powers and attributes of the presidential office? They are written in the second article of the Constitution, and, so far as they relate to the present question, they are these: He is vested with the executive power; he is commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States; he is to take care that the laws be faithfully executed; and he takes this oath: I do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States. The executive power mentioned in the Constitution is the executive power of the United States. The President is not clothed with the executive power of the States. He is not clothed with any executive power, except as he is specifically directed by some other part of the Constitution, or by an act of Congress. He is to take care that the laws be faithfully executed. He is to execute the laws by the means and in the manner which the laws themselves prescribe. The oath of office cannot be considered as a grant of power. Its effect is merely to superadd a religious sanction to what would otherwise be his official duty, and to bind his conscience against any attempt to usurp power or overthrow the Constitution. There remains, then, but a single clause to discuss, and that is the one which makes him commander-in-chief of the army and navy of the United States, and of the militia of the States when called into the federal service. The question, therefore, is narrowed down to this: Does the authority to command an army carry with it authority to arrest and try by court-martial civilians — by which I mean persons not in the martial forces; not impressed by law with a martial character? The question is easily answered. To command an army, whether in camp, or on the march, or in battle, requires the control of no other persons than the officers, soldiers, and camp followers. It can hardly be contended that, if Congress neglects to find subsistence, the commander-in-chief may lawfully take it from our own citizens. It cannot be supposed that, if Congress fails to provide the means of recruiting, the commander-in-chief may lawfully force the citizens into the ranks. What is called the war power of the President, if indeed there be any such thing, is nothing more than the power of commanding the armies and fleets which Congress causes to be raised. To command them is to direct their operations. Much confusion of ideas has been produced by mistaking executive power for kingly power. Because in monarchial countries the kingly office includes the executive, it seems to have been sometimes inferred that, conversely, the executive carries with it the kingly prerogative. Our executive is in no sense a king, even for four years. So much for that article of the Constitution, the second, which creates and regulates the executive power. If we turn to the other portions of the original instrument (I do not now speak of the amendments) the conclusion already drawn from the second article will be confirmed, if there be room for confirmation. Thus, in the first article, Congress is authorized to declare war, and make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and governing such part of them as may be in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; to exercise exclusive legislation in all cases whatsoever over ... . all places purchased ... . for the erection of forts, magazines, arsenals, dock-yards; to make all laws which shall be necessary and proper for carrying into execution the ... . powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. These various provisions of the first article would show, if there were any doubt upon the construction of the second, that the powers of the President do not include the power to raise or support an army, or to provide or maintain a navy, or to call forth the militia, to repel an invasion, or to suppress an insurrection, or execute the laws, or even to govern such portions of the militia as are called into the service of the United States, or to make law for any of the forts, magazines, arsenals, or dock-yards. If the President could not, even in flagrant war, except as authorized by Congress, call forth the militia of Indiana to repel an invasion of that State, or, when called, govern them, it is absurd to say that he could nevertheless, under the same circumstances, govern the whole State and every person in it by martial rule. The jealousy of the executive power prevailed with our forefathers. They carried it so far that, in providing for the protection of a State against domestic violence, they required, as a condition, that the legislature of the State should ask for it if possible to be convened. [] I submit, therefore, that upon the text of the original Constitution, as it stood when it was ratified, there is no color for the assumption that the President, without act of Congress, could create military commissions for the trial of persons not military, for any cause or under any circumstances whatever. But, as we well know, the Constitution, in the process of ratification, had to undergo a severe ordeal. To quiet apprehensions, as well as to guard against possible dangers, ten amendments were proposed by the first Congress sitting at New York, in 1789, and were duly ratified by the States. The third and fifth are as follows: ART. III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. ART. V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation. If there could have been any doubt whatever, whether military commissions or courts-martial for the trial of persons not in the land or naval forces, or the militia in actual service, could ever be established by the President, or even by Congress, these amendments would have removed the doubt. They were made for a state of war as well as a state of peace; they were aimed at the military authority, as well as the civil; and they were as explicit as our mother tongue could make them. The phrase in time of war or public danger qualifies the member of the sentence relating to the militia; as otherwise, there could be no court-martial in the army or navy during peace. This is the argument upon the text of the Constitution. I will now show that military tribunals for civilians, or non-military persons, whether in war or peace, are inconsistent with the liberty of the citizen, and can have no place in constitutional government. This is a legitimate argument even upon a question of interpretation; for if there be, as I think there is not, room left for interpretation of what seem to be the plain provisions of the Constitution, then the principles of liberty, as they were understood by the fathers of the Republic; the maxims of free government, as they were accepted by the men who framed and those who adopted the Constitution; and those occurrences in the history of older states, which they had profoundly studied, may be called in to show us what they must have meant by the words they used. The source and origin of the power to establish military commissions, if it exist at all, is in the assumed power to declare what is called martial law. I say what is called martial law, for strictly there is no such thing as martial law; it is martial rule; that is to say, the will of the commanding officer, and nothing more, nothing less. On this subject, as on many others, the incorrect use of a word has led to great confusion of ideas and to great abuses. People imagine, when they hear the expression martial law, that there is a system of law known by that name, which can upon occasion be substituted for the ordinary system; and there is a prevalent notion that under certain circumstances a military commander may, by issuing a proclamation, displace one system, the civil law, and substitute another, the martial. A moment's reflection will show that this is an error. Law is a rule of property and of conduct, prescribed by the sovereign power of the state. The Civil Code of Louisiana defines it as a solemn expression of legislative will. Blackstone calls it a rule of civil conduct prescribed by the supreme power in the state; ... not a transient, sudden order from a superior to or concerning a particular person, but something permanent, uniform, and universal. Demosthenes thus explains it: The design and object of laws is to ascertain what is just, honorable, and expedient; and when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. There is a system of regulations known as the Rules and Articles of War, prescribed by Congress for the government of the army and navy, under that clause of the Constitution which empowers Congress to make rules for the government and regulation of the land and naval forces. This is generally known as military law. [] There are also certain usages, sanctioned by time, for the conduct towards each other of nations engaged in war, known as the usages of war, or the jus belli, accepted as part of the law of nations, and extended from national to all belligerents. These respect, however, only the conduct of belligerents towards each other, and have no application to the present case. What is ordinarily called martial law is no law at all. Wellington, in one of his despatches from Portugal, in 1810, in his speech on the Ceylon affair, so describes it. Let us call the thing by its right name; it is not martial law, but martial rule. And when we speak of it, let us speak of it as abolishing all law, and substituting the will of the military commander, and we shall give a true idea of the thing, and be able to reason about it with a clear sense of what we are doing. Another expression, much used in relation to the same subject, has led also to misapprehension; that is, the declaration, or proclamation, of martial rule; as if a formal promulgation made any difference. It makes no difference whatever. It may be asked, may a general never in any case use force but to compel submission in the opposite army and obedience in his own? I answer, yes; there are cases in which he may. There is a maxim of our law which gives the reason and the extent of the power: Necessitas quod cogit defendit. This is a maxim not peculiar in its application to military men; it applies to all men under certain circumstances. Private persons may lawfully tear down a house, if necessary, to prevent to spread of a fire. Indeed, the maxim is not confined in its application to the calamities of war and conflagration. A mutiny, breaking out in a garrison, may make necessary for its suppression, and therefore justify, acts which would otherwise be unjustifiable. In all these cases, however, the person acting under the pressure of necessity, real or supposed, acts at his peril. The correctness of his conclusion must be judged by courts and juries, whenever the acts and the alleged necessity are drawn in question. The creation of a commission or board to decide or advise upon the subject gives no increased sanction to the act. As necessity compels, so that necessity alone can justify it. The decision or advice of any number of persons, whether designated as a military commission, or board of officers, or council of war, or as a committee, proves nothing but greater deliberation; it does not make legal what would otherwise be illegal. Let us proceed now to the historical part of the argument. First. As to our own country. The nation began its life in 1776, with a protest against military usurpation. It was one of the grievances set forth in the Declaration of Independence, that the king of Great Britain had affected to render the military independent of and superior to the civil power. The attempts of General Gage, in Boston, and of Lord Dunmore, in Virginia, to enforce martial rule, excited the greatest indignation. Our fathers never forgot their principles; and though the war by which they maintained their independence was a revolutionary one, though their lives depended on their success in arms, they always asserted and enforced the subordination of the military to the civil arm. The first constitutions of the States were framed with the most jealous care. By the constitution of New Hampshire, it was declared that in all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power; by the constitution of Massachusetts of 1780, that no person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by the authority of the legislature; by the constitution of Pennsylvania of 1776, that the military should be kept under strict subordination to, and governed by the civil power; by the constitution of Delaware of 1776, that in all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power; by that of Maryland of 1776, that in all cases, and at all times, the military ought to be under strict subordination to, and control of the civil power; by that of North Carolina, 1776, that the military should be kept under strict subordination to, and governed by the civil power; by that of South Carolina, 1778, that the military be subordinate to the civil power of the State; and by that of Georgia, 1777, that the principles of the habeas corpus act shall be part of this constitution; and freedom of the press, and trial by jury, to remain inviolate forever. Second. As to England, the constitutional history of that country is the history of a struggle on the part of the crown to obtain or to exercise a similar power to the one here attempted to be set up. The power was claimed by the king as much in virtue of his royal prerogative and of his feudal relations to his people as lord paramount, as of his title as commander of the forces. But it is enough to say that, from the day when the answer of the sovereign was given in assent to the petition of right, courts-martial for the trial of civilians, upon the authority of the crown alone, have always been held illegal. Third. As to France — as France was when she had a constitutional government. I have shown what the king of England cannot do. Let me show what the constitutional king of France could not do. On the continent of Europe, the legal formula for putting a place under martial rule is to declare it in a state of siege; as if there were in the minds of lawyers everywhere no justification for such a measure but the exigencies of impending battle. The charter established for the government of France, on the final expulsion of the first Napoleon, contained these provisions: ART. The king is the supreme chief of the state; he commands the forces by sea and land; declares war; makes treaties of peace, alliance, and commerce; appoints to every office and agency of public administration; and makes rules and ordinances necessary for the execution of the laws, without the power ever of suspending them, or dispensing with their execution. ART. The king alone sanctions and promulgates the laws. ART. No person can be withdrawn from his natural judges. ART. Therefore there cannot be erected commissions or extraordinary tribunals. When Charles the Tenth was driven from the kingdom the last article was amended, by adding the words, under what name or denomination soever; Dupin giving the reason thus: In order to prevent every possible abuse, we have added to the former text of the charter `under what name or denomination soever,' for specious names have never been wanting for bad things, and without this precaution the title of `ordinary tribunal' might be conferred on the most irregular and extraordinary of courts. Now, it so happened, that two years later, the strength of these constitutional provisions was to be tested. A formidable insurrection broke out in France. The king issued an order, dated June 6, 1832, placing Paris in a state of siege, founded on the necessity of suppressing seditious assemblages which had appeared in arms in the capital, during the days of June 5th and 6th; on attacks upon public and private property; on assassinations of national guards, troops of the line, municipal guards and officers in the public service; and on the necessity of prompt and energetic measures to protect public safety against the renewal of similar attacks. On the 18th of June, one Geoffroy, designer, of Paris, was, by a decision of the second military commission of Paris, declared guilty of an attack, with intent to subvert the government and to excite civil war, and condemned to death. He appealed to the Court of Cassation. Odilon Barrot, a leader of the French bar, undertook his case, and after a discussion memorable forever for the spirit and learning of the advocates, and the dignity and independence of the judges, the court gave judgment, thus: Whereas Geoffroy, brought before the second military commission of the first military division, is neither in the army nor impressed with a military character, yet nevertheless said tribunal has implicitly declared itself to have jurisdiction and passed upon the merits, wherein it has committed an excess of power, violated the limits of its jurisdiction, and the provisions of articles 53 and 54 of the charter and those of the laws above cited: On these grounds the court reverses and annuls the proceedings instituted against the appellant before the said commission, whatsoever has followed therefrom, and especially the judgment of condemnation of the 18th of June, instant; and in order that further proceedings be had according to law, remands him before one of the judges of instruction of the court of first instance of Paris, &c. Thereupon the prisoner was discharged from military custody. This closes my argument against the competency of the military commission. It remains to consider what remedy, if any, there was against this unlawful judgment and its threatened execution. The great remedy provided by our legal and political system for unlawful restraint, whether upon pretended judgments, decrees, sentences, warrants, orders, or otherwise, is the writ of habeas corpus. The authority to suspend the privilege of the habeas corpus is derived, it is said, from two sources: first, from the martial power; and, second, from the second subdivision of the ninth section of the first article of the Federal Constitution. As to the martial power, I have already discussed it so fully that I need not discuss it again. How, then, stands the question upon the text of the Constitution? This is the language: The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. The clause in question certainly either grants the power, or implies that it is already granted; and in either case it belongs to the legislative, executive, and judicial departments concurrently, or to some excluding the rest. There have been four theories: one that it belongs to all the departments; a second, that it belongs to the legislature; a third, that it belongs to the executive; and the fourth, that it belongs to the judiciary. Is the clause a grant or a limitation of power? Looking only at the form of expression, it should be regarded as a limitation. As a grant of power, it would be superfluous, for it is clearly an incident of others which are granted. Then, regarding the clause according to its place in the Constitution, it should be deemed a limitation; for it is placed with six other subdivisions in the same section, every one of which is a limitation. If the sentence respecting the habeas corpus be, as I contend, a limitation, and not a grant of power, we must look into other parts of the Constitution to find the grant; and if we find none making it to the President, it follows that the power is in the legislative or the judicial department. That it lies with the judiciary will hardly be contended. That department has no other function than to judge. It cannot refuse or delay justice. But if the clause in question were deemed a grant of power, the question would then be, to whom is the grant made? The following considerations would show that it was made to Congress: First. The debates in the convention which framed the Constitution seem, at least, to suppose that the power was given to Congress, and to Congress alone. Second. The debates in the various State conventions which ratified the Constitution do most certainly proceed upon that supposition. Third. The place in which the provision is left indicates, if it does not absolutely decide, that it relates only to the powers of Congress. It is not in the second article, which treats of the executive department. It is not in the third, which treats of the judicial department. It is in the first article, which treats of the legislative department. There is not another subdivision in all the seven subdivisions of the ninth section which does not relate to Congress in part, at least, and most of them relate to Congress alone. Fourth. The constitutional law of the mother country had been long settled, that the power of suspending the privilege of the writ, or, as it was sometimes called, suspending the writ itself, belonged only to Parliament. With this principle firmly seated in the minds of lawyers, it seems incredible that so vast a change as conferring the grant upon the executive should have been so loosely and carelessly expressed. Fifth. The prevailing sentiment of the time when the Constitution was framed, was a dislike and dread of executive authority. It is hardly to be believed, that so vast and dangerous a power would have been conferred upon the President, without providing some safeguards against its abuse. Sixth. Every judicial opinion, and every commentary on the Constitution, up to the period of the Rebellion, treated the power as belonging to Congress, and to that department only. And so we submit to the court, that the answers to the three questions, certified by the court below, should be, to the first, that, on the facts stated in the petition and exhibits, a writ of habeas corpus ought to be issued according to the prayer of the petition; to the second, that, on the same facts, the petitioner ought to be discharged; and to the third, that the military commission had not jurisdiction to try and sentence the petitioner, in manner and form as in the petition and exhibits is stated. Mr. Garfield, on the same side. Had the military commission jurisdiction legally to try and sentence the petitioner? This is the main question. The Constitution establishes the Supreme Court, and empowers Congress — To constitute tribunals inferior to the Supreme Court. To make rules for the government of the land and naval forces, and to provide for governing such part of the militia as may be employed in the service of the United States. For all cases not arising in the land or naval forces, Congress has provided in the Judiciary Act of September 24th, 1789, and the acts amendatory thereof. For all cases arising in the naval forces, it has fully provided in the act of March 2d, 1799, for the government of the navy of the United States, and similar subsequent acts. We are apt to regard the military department of the government as an organized despotism, in which all personal rights are merged in the will of the commander-in-chief. But that department has definitely marked boundaries, and all its members are not only controlled, but also sacredly protected by definitely prescribed law. The first law of the Revolutionary Congress, passed September 20th, 1776, touching the organization of the army, provided that no officer or soldier should be kept in arrest more than eight days without being furnished with the written charges and specifications against him; that be should be tried, at as early a day as possible, by a regular military court, whose proceedings were regulated by law, and that no sentence should be carried into execution till the full record of the trial had been submitted to Congress or to the commander-in-chief, and his or their direction be signified thereon. From year to year Congress has added new safeguards to protect the rights of its soldiers, and the rules and articles of war are as really a part of the laws of the land as the Judiciary Act or the act establishing the treasury department. The main boundary line between the civil and military jurisdictions is the muster into service. In Mills v. Martin, [] a militiaman, called out by the Governor of the State of New York, and ordered by him to enter the service of the United States, on a requisition of the President for troops, refused to obey the summons, and was tried by a Federal court-martial for disobedience of orders. The Supreme Court of the State of New York decided, that until he had gone to the place of general rendezvous, and had been regularly enrolled, and mustered into the national militia, he was not amenable to the action of a court-martial composed of officers of the United States. [] By the sixtieth article of war, the military jurisdiction is so extended as to cover those persons not mustered into the service, but necessarily connected with the army. It provides that: All sutlers and retainers to the camp, and all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders according to the rules and articles of war. That the question of jurisdiction might not be doubtful, it was thought necessary to provide by law of Congress that spies should be subject to trial by court-martial. As the law stood for eighty-five years, spies were described as persons not citizens of, or owing allegiance to, the United States, who shall be found lurking, &c. Not until after the Great Rebellion began, was this law so amended as to allow the punishment by court-martial of citizens of the United States who should be found lurking about the lines of our army to betray it to the enemy. It is evident, therefore, that by no loose and general construction of the law can citizens be held amenable to military tribunals, whose jurisdiction extends only to persons mustered into the military service, and such other classes of persons as are, by express provisions of law, made subject to the rules and articles of war. But even within their proper jurisdiction, military courts are, in many important particulars, subordinate to the civil courts. This is acknowledged by the leading authorities on the subject, [†] and also by precedents, to some of which I refer: 1. A Lieutenant Frye, serving in the West Indies, in 1743, on a British man-of-war, was ordered by his superior officer to assist in arresting another officer. The lieutenant demanded, what he had, according to the customs of the naval service, a right to demand, a written order before he would obey the command. For this he was put under arrest, tried by a naval court-martial, and sentenced to fifteen years' imprisonment. In 1746 he brought an action before a civil court against the president of the court-martial, and damages of £1000 were awarded him for his illegal detention and sentence; and the judge informed him that he might also bring his action against any member of the court-martial. Rear Admiral Mayne and Captain Rentone, who were members of the court that tried him, were at the time, when damages were awarded to Lieutenant Frye, sitting on a naval court-martial. The lieutenant proceeded against them, and they were arrested by a writ from the Common Pleas. The order of arrest was served upon them one afternoon, just as the court-martial adjourned. Its members, fifteen in number, immediately reassembled and passed resolutions declaring it a great insult to the dignity of the naval service that any person, however high in civil authority, should order the arrest of a naval officer for any of his official acts. Lord Chief Justice Willes immediately ordered the arrest of all the members of the court who signed the resolutions, and they were arrested. They appealed to the king, who was very indignant at the arrest. The judge, however, persevered in his determination to maintain the supremacy of civil law, and after two months' examination and investigation of the cause, all the members of the court-martial signed an humble and submissive letter of apology, begging leave to withdraw their resolutions, in order to put an end to further proceedings. When the Lord Chief Justice had heard the letter read in open court, he directed that it be recorded in the Remembrance Office, to the end, as he said, that the present and future ages may know that whosoever set themselves up in opposition to the law, or think themselves above the law, will in the end find themselves mistaken. [] 2. In Wilson v. McKenzie [] it was proved that a mutiny of very threatening aspect had broken out; and that the lives of the captain and his officers were threatened by the mutineers. Among the persons arrested was the plaintiff, Wilson, an enlisted sailor, who being supposed to be in the conspiracy, was knocked down by the captain, ironed, and held in confinement for a number of days. When the cruise was ended, Wilson brought suit against the captain for illegal arrest and imprisonment. The cause was tried before the Supreme Court of New York; Chief Justice Nelson delivered the judgment of the court, giving judgment in favor of Wilson. A clear and complete statement of the relation between civil and military courts may be found in Dynes v. Hoover, [†] in this court: If a court-martial has no jurisdiction over the subject-matter of the charge it has been convened to try, or shall inflict a punishment forbidden by the law, though its sentence shall be approved by the officers having a revisory power of it, civil courts may, on an action by a party aggrieved by it, inquire into the want of the court's jurisdiction and give him redress. The courts of common law will examine whether courts-martial have exceeded the jurisdiction given them, though it is said, `not, however, after the sentence has been ratified and carried into execution.' It is clear, then, that the Supreme Court of the United States may inquire into the question of jurisdiction of a military court; may take cognizance of extraordinary punishment inflicted by such a court not warranted by law; and may issue writs of prohibition or give such other redress as the case may require. It is also clear that the Constitution and laws of the United States have carefully provided for the protection of individual liberty and the right of accused persons to a speedy trial before a tribunal established and regulated by law. To maintain the legality of the sentence here, opposite counsel are compelled not only to ignore the Constitution, but to declare it suspended — its voice lost in war — to hold that from the 5th of October, 1864, to the 9th of May, 1865, martial law alone existed in Indiana; that it silenced not only the civil courts, but all the laws of the land, and even the Constitution itself; and that during this silence the executor of martial law could lay his hand upon every citizen; could not only suspend the writ of habeas corpus, but could create a court which should have the exclusive jurisdiction over the citizen to try him, sentence him, and put him to death. Sir Matthew Hale, in his History of the Common Law, [] says: Touching the business of martial law, these things are to be observed, viz.: First. That in truth and reality it is not a law, but something indulged rather than allowed as a law; the necessity of government, order, and discipline in an army, is that only which can give those laws a countenance: quod enim necessitas cogit defendit. Secondly. This indulged law was only to extend to members of the army, or to those of the opposed army, and never was so much indulged as intended to be executed or exercised upon others, for others who had not listed under the army had no color or reason to be bound by military constitutions applicable only to the army, whereof they were not parts, but they were to be ordered and governed according to the laws to which they were subject, though it were a time of war. Thirdly. That the exercises of martial law, whereby any person should lose his life, or member, or liberty, may not be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. This is declared in the Petition of Right (3 Car. I), whereby such commissions and martial law were repealed and declared to be contrary to law. In order to trace the history and exhibit the character of martial law, reference may be made to several leading precedents in English and American history. 1. The Earl of Lancaster. In the year 1322, the Earl of Lancaster and the Earl of Hereford rebelled against the authority of Edward II. They collected an army so large that Edward was compelled to raise forty thousand men to withstand them. The rebellious earls posted their forces on the Trent, and the armies of the king confronted them. They fought at Boroughbridge; the insurgent forces were overthrown; Hereford was slain and Lancaster taken in arms at the head of his army, and amid the noise of battle was tried by a court-martial, sentenced to death, and executed. When Edward III came into power, eight years later, on a formal petition presented to Parliament by Lancaster's son, setting forth the facts, the case was examined and a law was enacted reversing the attainder, and declaring: 1. That in time of peace no man ought to be adjudged to death for treason or any other offence without being arraigned and held to answer. 2. That regularly when the king's courts are open it is a time of peace in judgment of law; and 3. That no man ought to be sentenced to death, by the record of the king, without his legal trial per pares. [] So carefully was the line drawn between civil and martial law five hundred years ago. 2. Sir Thomas Darnell. He was arrested in 1625 by order of the king, for refusing to pay a tax which he regarded as illegal. He was arrested and imprisoned. A writ of habeas corpus was prayed for, but answer was returned by the court that he had been arrested by special order of the king, and that was held to be a sufficient answer to the petition. Then the great cause came up to be tried in Parliament, whether the order of the king was sufficient to override the writ of habeas corpus, and after a long and stormy debate, in which the ablest minds in England were engaged, the Petition of Right, of 1628, received the sanction of the king. In that statute it was decreed that the king should never again suspend the writ of habeas corpus; that he should never again try a subject by military commission; and since that day no king of England has presumed to usurp that high prerogative, which belongs to Parliament alone. 3. The Bill of Rights of 1688. The house of Stuart had been expelled and William had succeeded to the British throne. Great disturbances had arisen in the realm in consequence of the change of dynasty. The king's person was unsafe in London. He informed the Lords and Commons of the great dangers that threatened the kingdom, and reminded them that he had no right to declare martial law, to suspend the writ of habeas corpus, or to seize and imprison his subjects on suspicion of treason or intended outbreak against the peace of the realm. He laid the case before them and asked their advice and assistance. In answer, Parliament passed the celebrated habeas corpus act. Since that day, no king of England has dared to suspend the writ. It is only done by Parliament. 4. Governor Wall. In the year 1782, Joseph Wall, governor of the British colony at Goree, in Africa, had under his command about five hundred British soldiers. Suspecting a mutiny about to break out in the garrison, he assembled them on the parade-ground, held a hasty consultation with his officers, and immediately ordered Benjamin Armstrong, a private, and supposed ringleader, to be seized, stripped, tied to the wheel of an artillery-carriage, and with a rope one inch in diameter, to receive eight hundred lashes. The order was carried into execution, and Armstrong died of his injuries. Twenty years afterward Governor Wall was brought before the most august civil tribunal of England to answer for the murder of Armstrong. Sir Archibald McDonald, Lord Chief Baron of the Court of Exchequer, Sir Soulden Lawrence, of the King's Bench, Sir Giles Rooke, of the Common Pleas, constituted the court. Wall's counsel claimed that he had the power of life and death in his hands in time of mutiny; that the necessity of the case authorized him to suspend the usual forms of law; that as governor and military commander-in-chief of the forces at Goree, he was the sole judge of the necessities of the case. After a patient hearing before that high court, he was found guilty of murder, was sentenced and executed. [] I now ask attention to precedents in our own colonial history. 5. On the 12th of June, 1775, General Gage, the commander of the British forces, declared martial law in Boston. The battles of Concord and Lexington had been fought two months before. The colonial army was besieging the city and its British garrison. It was but five days before the battle of Bunker Hill. Parliament had, in the previous February, declared the colonies in a state of rebellion. Yet, by the common consent of English jurists, General Gage violated the laws of England, and laid himself liable to its penalty, when he declared martial law. This position is sustained in the opinion of Woodbury, J., in Luther v. Borden. [†] 6. On the 7th of November, 1775, Lord Dunmore declared martial law throughout the commonwealth of Virginia. This was long after the battle of Bunker Hill, and when war was flaming throughout the colonies; yet he was denounced by the Virginia Assembly for having assumed a power which the king himself dared not exercise, as it annuls the law of the land, and introduces the most execrable of all systems, martial law. Woodbury, J., [‡] declares the act of Lord Dunmore unwarranted by British law. 7. The practice of our Revolutionary fathers on this subject is instructive. Their conduct throughout the great struggle for independence was equally marked by respect for civil law, and jealousy of martial law. [§] Though Washington was clothed with almost dictatorial powers, he did not presume to override the civil law, or disregard the orders of the courts, except by express authority of Congress or the States. In his file of general orders, covering a period of five years, there are but four instances in which civilians appear to have been tried by a military court, and all these trials were expressly authorized by resolutions of Congress. In the autumn of 1777, the gloomiest period of the war, a powerful hostile army landed at Chesapeake Bay, for the purpose of invading Maryland and Pennsylvania. It was feared that the disloyal inhabitants along his line of march would give such aid and information to the British commander as to imperil the safety of our cause. Congress resolved That the executive authorities of Pennsylvania and Maryland be requested to cause all persons within their respective States, notoriously disaffected, to be forthwith apprehended, disarmed, and secured till such time as the respective States think they can be released without injury to the common cause. The governor authorized the arrests, and many disloyal citizens were taken into custody by Washington's officers, who refused to answer the writ of habeas corpus which a civil court issued for the release of the prisoners. Very soon afterwards the Pennsylvania legislature passed a law indemnifying the governor and the military authorities, and allowing a similar course to be pursued thereafter on recommendation of Congress or the commanding officer of the army. But this law gave authority only to arrest and hold — not to try; and the act was to remain in force only till the end of the next session of the General Assembly. So careful were our fathers to recognize the supremacy of civil law, and to resist all pretensions of the authority of martial law! 8. Shay's Rebellion in 1787. That rebellion, which was before the Constitution was adopted, was mentioned by Hamilton in the Federalist as a proof that we needed a strong central government to preserve our liberties. During all that disturbance there was no declaration of martial law, and the habeas corpus was only suspended for a limited time and with very careful restrictions. Governor Bowdoin's order to General Lincoln, on the 19th of January, 1787, was in these words: Consider yourself in all your military offensive operations constantly as under the direction of the civil officer, save where any armed force shall appear to oppose you marching to execute these orders. 9. I refer too to a case under the Constitution, the Rebellion of 1793, in Western Pennsylvania. President Washington did not march with his troops until the judge of the United States District Court had certified that the marshal was unable to execute his warrants. Though the parties were tried for treason, all the arrests were made by the authority of the civil officers. The orders of the Secretary of War stated that the object of the expedition was to assist the marshal of the district to make prisoners. Every movement was made under the direction of the civil authorities. So anxious was Washington on this subject that he issued orders declaring that the army should not consider themselves as judges or executioners of the laws, but only as employed to support the proper authorities in the execution of the laws. 10. I call the attention of the court also to the case of General Jackson, in 1815, at New Orleans. In 1815, at New Orleans, General Jackson took upon himself the command of every person in the city, suspended the functions of all the civil authorities, and made his own will for a time the only rule of conduct. It was believed to be absolutely necessary. Judges, officers of the city corporation, and members of the State legislature insisted on it as the only way to save the citizens and property of the place from the unspeakable outrages committed at Badajos and St. Sebastian by the very same troops then marching to the attack. Jackson used the power thus taken by him moderately, sparingly, benignly, and only for the purpose of preventing mutiny in his camp. A single mutineer was restrained by a short confinement, and another was sent four miles up the river. But after he had saved the city, and the danger was all over, he stood before the court to be tried by the law; his conduct was decided to be illegal, and he paid the penalty without a murmur. The Supreme Court of Louisiana, in Johnson v. Duncan, [] decided that everything done during the siege in pursuance of martial rule, but in conflict with the law of the land, was void and of none effect, without reference to the circumstances which made it necessary. In 1842, a bill was introduced into Congress to reimburse General Jackson for the fine. The debate was able and thorough. Mr. Buchanan, then a member of Congress, spoke in its favor, and no one will doubt his willingness to put the conduct of Jackson on the most favorable ground possible. [] Yet he did not attempt to justify, but only sought to palliate and excuse the conduct of Jackson. All the leading members took the same ground. 11. I may fortify my argument by the authority of two great British jurists, and call attention to the trial of the Rev. John Smith, missionary at Demerara, in British Guiana. In the year 1823, a rebellion broke out in Demerara, extending over some fifty plantations. The governor of the district immediately declared martial law. A number of the insurgents were killed, and the rebellion was crushed. It was alleged that the Rev. John Smith, a missionary, sent out by the London Missionary Society, had been an aider and abettor of the rebellion. A court-martial was appointed, and in order to give it the semblance of civil law, the governor-general appointed the chief justice of the district as a staff officer, and then detailed him as president of the court to try the accused. All the other members of the court were military men, and he was made a military officer for the special occasion. Missionary Smith was tried, found guilty, and sentenced to be hung. The proceedings came to the notice of Parliament, and were made the subject of inquiry and debate. Smith died in prison before the day of execution; but the trial gave rise to one of the ablest debates of the century, in which the principles involved in the cause now before this court were fully discussed. Lord Brougham and Sir James Mackintosh were among the speakers. In the course of his speech Lord Brougham said: No such thing as martial law is recognized in Great Britain, and courts founded on proclamations of martial law are wholly unknown. Suppose I am ready to admit that, on the pressure of a great necessity, such as invasion or rebellion, when there is no time for the slow and cumbrous proceedings of the civil law, a proclamation may justifiably be issued for excluding the ordinary tribunals, and directing that offences should be tried by a military court, such a proceeding might be justified by necessity, but it could rest on that alone. Created by necessity, necessity must limit its continuance. It would be the worst of all conceivable grievances, it would be a calamity unspeakable, if the whole law and constitution of England were suspended one hour longer than the most imperious necessity demanded. I know that the proclamation of martial law renders every man liable to be treated as a soldier. But the instant the necessity ceases, that instant the state of soldiership ought to cease, and the rights, with the relations of civil life, to be restored. Sir James Mackintosh says: [] The only principle on which the law of England tolerates what is called `martial law,' is necessity. Its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity, in which alone it rests, for a single minute, it becomes instantly a mere exercise of lawless violence. When foreign invasion or civil war renders it impossible for courts of law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military, which is the only remaining force in the community. The next paragraph lays down the chief condition that can justify martial law, and also marks the boundary between martial and civil law: While the laws are silenced by the noise of arms, the rulers of the armed force must punish, as equitably as they can, those crimes which threaten their own safety and that of society, but no longer; every moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime. If argument be not enough on this subject — if, indeed, the mere statement be not the evidence of its own truth — I appeal to the highest and most venerable authority known to our law. He proceeds to quote Sir Matthew Hale on Martial Law, and cites the case of the Earl of Lancaster, to which I have already referred, and then declares: No other doctrine has ever been maintained in this country since the solemn parliamentary condemnation of the usurpations of Charles I, which he was himself compelled to sanction in the Petition of Right. In none of the revolutions or rebellions which have since occurred has martial law been exercised, however much, in some of them, the necessity might seem to exist. Even in those most deplorable of all commotions which tore Ireland in pieces in the last years of the eighteenth century, in the midst of ferocious revolt and cruel punishment, at the very moment of legalizing these martial jurisdictions in 1799, the very Irish statute, which was passed for that purpose, did homage to the ancient and fundamental principles of the law in the very act of departing from them. The Irish statute (39 George III, chap. 3), after reciting `that martial law had been successfully exercised to the restoration of peace, so far as to permit the course of the common law partially to take place, but that the rebellion continued to rage in considerable parts of the kingdom, whereby it has become necessary for Parliament to interpose,' goes on to enable the Lord Lieutenant `to punish rebels by courts-martial.' This statute is the most positive declaration, that where the common law can be exercised in some parts of the country, martial law cannot be established in others, though rebellion actually prevails in those others, without an extraordinary interposition of the supreme legislative authority itself. After presenting arguments to show that a declaration of martial law was not necessary, the learned jurist continues: For six weeks, then, before the court-martial was assembled, and for twelve weeks before that court pronounced sentence of death on Mr. Smith, all hostility had ceased, no necessity for their existence can be pretended, and every act which they did was an open and deliberate defiance of the law of England. Where, then, are we to look for any color of law in these proceedings? Do they derive it from the Dutch law? I have diligently examined the Roman law, which is the foundation of that system, and the writings of those most eminent jurists who have contributed so much to the reputation of Holland. I can find in them no trace of any such principle as martial law. Military law, indeed, is clearly defined; and provision is made for the punishment, by military judges, of the purely military offences of soldiers. But to any power of extending military jurisdiction over those who are not soldiers, there is not an allusion. Many more such precedents as I have already cited might be added to the list; but it is unnecessary. They all teach the same lesson. They enable us to trace, from its far-off source, the progress and development of Anglo-Saxon liberty; its conflicts with irresponsible power; its victories, dearly bought, but always won — victories which have crowned with immortal honors the institutions of England, and left their indelible impress upon the Anglo-Saxon mind. These principles our fathers brought with them to the New World, and guarded with vigilance and devotion. During the late Rebellion, the Republic did not forget them. So completely have they been impressed on the minds of American lawyers, so thoroughly ingrained into the fibre of American character, that notwithstanding the citizens of eleven States went off into rebellion, broke their oaths of allegiance to the Constitution, and levied war against their country, yet with all their crimes upon them, there was still in the minds of those men, during all the struggle, so deep an impression on this great subject, that, even during their rebellion, the courts of the Southern States adjudicated causes, like the one now before you, in favor of the civil law, and against courts-martial established under military authority for the trial of citizens. In Texas, Mississippi, Virginia, and other insurgent States, by the order of the rebel President, the writ of habeas corpus was supended, martial law was declared, and provost marshals were appointed to administer military authority. But when civilians, arrested by military authority, petitioned for release by writ of habeas corpus, in every case, save one, the writ was granted, and it was decided that there could be no suspension of the writ or declaration of martial law by the executive, or by any other than the supreme legislative authority. The military commission, under our government, is of recent origin. It was instituted, as has been frequently said, by General Scott, in Mexico, to enable him, in the absence of any civil authority, to punish Mexican and American citizens for offences not provided for in the rules and articles of war. The purpose and character of a military commission may be seen from his celebrated order, No. 20, published at Tampico. It was no tribunal with authority to punish, but merely a committee appointed to examine an offender, and advise the commanding general what punishment to inflict. It is a rude substitute for a court of justice, in the absence of civil law. Even our own military authorities, who have given so much prominence to these commissions, do not claim for them the character of tribunals established by law. In his Digest of Opinions for 1866, [] the Judge Advocate General says: Military commissions have grown out of the necessities of the service, but their powers have not been defined nor their mode of proceeding regulated by any statute law. Again: In a military department the military commission is a substitute for the ordinary State or United States Court, when the latter is closed by the exigencies of war or is without the jurisdiction of the offence committed. The plea set up by the Attorney-General for this military tribunal is that of the necessity of this case. But there was in fact no necessity. From the beginning of the Rebellion to its close, Congress, by its legislation, kept pace with the necessities of the nation. In sixteen carefully considered laws, the national legislature undertook to provide for every contingency, and arm the executive at every point with the solemn sanction of law. Observe how the case of the petitioner was covered by the provisions of law. The first charge against him was conspiracy against the government of the United States. In the act approved July 31st, 1861, that crime was defined, and placed within the jurisdiction of the District and Circuit Courts of the United States. Charge 2. Affording aid and comfort to the rebels against the authority of the United States. In the act approved July 17th, 1862, this crime is set forth in the very words of the charge, and it is provided that on conviction before any court of the United States, having jurisdiction thereof, the offender shall be punished by a fine not exceeding ten thousand dollars, and by imprisonment not less than six months, nor exceeding five years. Charge 3. Inciting insurrection. In Brightly's Digest, [] there is compiled from ten separate acts, a chapter of sixty-four sections on insurrection, setting forth in the fullest manner possible, every mode by which citizens may aid in insurrection, and providing for their trial and punishment by the regularly ordained courts of the United States. Charge 4. Disloyal practices. The meaning of this charge can only be found in the specifications under it, which consists in discouraging enlistments and making preparations to resist a draft designed to increase the army of the United States. These offences are fully defined in the thirty-third section of the act of March 3d, 1863, for enrolling and calling out the national forces, and in the twelfth section of the act of February 24th, 1864, amendatory thereof. The provost marshal is authorized to arrest such offenders, but he must deliver them over for trial to the civil authorities. Their trial and punishment are expressly placed in the jurisdiction of the District and Circuit Courts of the United States. Charge 5. Violation of the laws of war; which, according to the specifications, consisted of an attempt, through a secret organization, to give aid and comfort to rebels. This crime is amply provided for in the laws referred to in relation to the second charge. But Congress did far more than to provide for a case like this. Throughout the eleven rebellious States, it clothed the military department with supreme power and authority. State constitutions and laws, the decrees and edicts of courts, were all superseded by the laws of war. Even in States not in rebellion, but where treason had a foothold, and hostile collisions were likely to occur, Congress authorized the suspension of the writ of habeas corpus, and directed the army to keep the peace. But Congress went further still, and authorized the President, during the Rebellion, whenever, in his judgment, the public safety should require it, to suspend the privilege of the writ in any State or Territory of the United States, and order the arrest of any persons whom he might believe dangerous to the safety of the Republic, and hold them till the civil authorities could examine into the nature of their crimes. But this act of March 3d, 1863, gave no authority to try the person by any military tribunal, and it commanded judges of the Circuit and District Courts of the United States, whenever the grand jury had adjourned its sessions, and found no indictment against such persons, to order their immediate discharge from arrest. All these capacious powers were conferred upon the military department, but there is no law on the statute book, in which the tribunal that tried the petitioner can find the least recognition. What have our Representatives in Congress thought on this subject? Near the close of the Thirty-Eighth Congress, when the miscellaneous appropriation bill, which authorized the disbursement of several millions of dollars for the civil expenditures of the government, was under discussion, the House of Representatives, having observed with alarm the growing tendency to break down the barriers of law, and desiring to protect the rights of citizens as well as to preserve the Union, added to the appropriation bill the following section: And be it further enacted, That no person shall be tried by court-martial or military commission in any State or Territory where the courts of the United States are open, except persons actually mustered or commissioned or appointed in the military or naval service of the United States, or rebel enemies charged with being spies. It was debated at length in the Senate, and almost every Senator acknowledged its justice, yet, as the nation was then in the very midst of the war, it was feared that the Executive might thereby be crippled, and the section was stricken out. The bill came back to the House; conferences were held upon it, and finally, in the last hour of the session, the House deliberately determined that, important as the bill was to the interests of the country, they preferred it should not become a law if that section were stricken out. The bill failed; and the record of its failure is an emphatic declaration that the House of Representatives have never consented to the establishment of any tribunals except those authorized by the Constitution of the United States and the laws of Congress. A point is suggested by the opposing counsel, that if the military tribunal had no jurisdiction, the petitioners may be held as prisoners captured in war, and handed over by the military to the civil authorities, to be tried for their crimes under the acts of Congress and before the courts of the United States. The answer to this is that the petitioners were never enlisted, commissioned, or mustered into the service of the Confederacy; nor had they been within the rebel lines, or within any theatre of active military operations; nor had they been in any way recognized by the rebel authorities as in their service. They could not have been exchanged as prisoners of war; nor, if all the charges against them were true, could they be brought under the legal definition of spies. The suggestion that they should be handed over to the civil authorities for trial is precisely what they petitioned for, and what, according to the laws of Congress, should have been done. Mr. Black, on the same side: Had the commissioners jurisdiction? Were they invested with legal authority to try the petitioner and put him to death for the offence of which he was accused? This is the main question in the controversy, and the main one upon which the court divided. We answer, that they were not; and, therefore, that the whole proceeding from beginning to end was null and void. On the other hand, it is necessary for those who oppose us to assert, and they do assert, that the commissioners had complete legal jurisdiction both of the subject-matter and of the party, so that their judgment upon the law and the facts is absolutely conclusive and binding, not subject to correction nor open to inquiry in any court whatever. Of these two opposite views, the court must adopt one or the other. There is no middle ground on which to stand. The men whose acts we complain of erected themselves, it will be remembered, into a tribunal for the trial and punishment of citizens who were connected in no way whatever with the army or navy. And this they did in the midst of a community whose social and legal organization had never been disturbed by any war or insurrection, where the courts were wide open, where judicial process was executed every day without interruption, and where all the civil authorities, both state and national, were in the full exercise of their functions. It is unimportant whether the petitioner was intended to be charged with treason or conspiracy, or with some offence of which the law takes no notice. Either or any way, the men who undertook to try him had no jurisdiction of the subject-matter. Nor had they jurisdiction of the party. The case, not having been one of impeachment, or a case arising in the land or naval forces, is either nothing at all or else it is a simple crime against the United States, committed by private individuals not in the public service, civil or military. Persons standing in that relation to the government are answerable for the offences which they may commit only to the civil courts of the country. So says the Constitution, as we read it; and the act of Congress of March 3d, 1863, which was passed with reference to persons in the exact situation of this man, declares that they shall be delivered up for trial to the proper civil authorities. There being no jurisdiction of the subject-matter or of the party, you are bound to relieve the petitioner. It is as much the duty of a judge to protect the innocent as it is to punish the guilty. We submit that a person not in the military or naval service cannot be punished at all until he has had a fair, open, public trial before an impartial jury, in an ordained and established court, to which the jurisdiction has been given by law to try him for that specific offence. Our proposition ought to be received as true without any argument to support it; because, if that, or something precisely equivalent to it, be not a part of our law, then the country is not a free country. Nevertheless, we take upon ourselves the burden of showing affirmatively not only that it is true, but that it is immovably fixed in the very framework of the government, so that it is impossible to detach it without destroying the whole political structure under which we live. In the first place, the self-evident truth will not be denied that the trial and punishment of an offender against the government is the exercise of judicial authority. That is a kind of authority which would be lost by being diffused among the masses of the people. A judge would be no judge if everybody else were a judge as well as he. Therefore, in every society, however rude or however perfect its organization, the judicial authority is always committed to the hands of particular persons, who are trusted to use it wisely and well; and their authority is exclusive; they cannot share it with others to whom it has not been committed. Where, then, is the judicial power in this country? Who are the depositaries of it here? The Federal Constitution answers that question in very plain words, by declaring that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. Congress has, from time to time, ordained and established certain inferior courts; and, in them, together with the one Supreme Court to which they are subordinate, is vested all the judicial power, properly so called, which the United States can lawfully exercise. At the time the General Government was created, the States and the people bestowed upon that government a certain portion of the judicial power which otherwise would have remained in their own hands, but they gave it on a solemn trust, and coupled the grant of it with this express condition, that it should never be used in any way but one; that is, by means of ordained and established courts. Any person, therefore, who undertakes to exercise judicial power in any other way, not only violates the law of the land, but he tramples upon the most important part of that Constitution which holds these States together. We all know that it was the intention of the men who founded this Republic to put the life, liberty, and property of every person in it under the protection of a regular and permanent judiciary, separate, apart, distinct, from all other branches of the government, whose sole and exclusive business it should be to distribute justice among the people according to the wants and needs of each individual. It was to consist of courts, always open to the complaint of the injured, and always ready to hear criminal accusations when founded upon probable cause; surrounded with all the machinery necessary for the investigation of truth, and clothed with sufficient power to carry their decrees into execution. In these courts it was expected that judges would sit who would be upright, honest, and sober men, learned in the laws of their country, and lovers of justice from the habitual practice of that virtue; independent, because their salaries could not be reduced, and free from party passion, because their tenure of office was for life. Although this would place them above the clamors of the mere mob and beyond the reach of executive influence, it was not intended that they should be wholly irresponsible. For any wilful or corrupt violation of their duty, they are liable to be impeached; and they cannot escape the control of an enlightened public opinion, for they must sit with open doors, listen to full discussion, and give satisfactory reasons for the judgments they pronounce. In ordinary tranquil times the citizen might feel himself safe under a judicial system so organized. But our wise forefathers knew that tranquillity was not to be always anticipated in a republic; the spirit of a free people is often turbulent. They expected that strife would rise between classes and sections, and even civil war might come, and they supposed, that in such times, judges themselves might not be safely trusted in criminal cases — especially in prosecutions for political offences, where the whole power of the executive is arrayed against the accused party. All history proves that public officers of any government when they are engaged in a severe struggle to retain their places, become bitter and ferocious, and hate those who oppose them, even in the most legitimate way, with a rancor which they never exhibit towards actual crime. This kind of malignity vents itself in prosecutions for political offences, sedition, conspiracy, libel, and treason, and the charges are generally founded upon the information of spies and delators, who make merchandise of their oaths, and trade in the blood of their fellow men. During the civil commotions in England, which lasted from the beginning of the reign of Charles I to the Revolution of 1688, the best men, and the purest patriots that ever lived, fell by the hand of the public executioner. Judges were made the instruments for inflicting the most merciless sentences on men, the latchet of whose shoes the ministers that prosecuted them were not worthy to stoop down and unloose. Nothing has occurred, indeed, in the history of this country to justify the doubt of judicial integrity which our forefathers seem to have felt. On the contrary, the highest compliment that has ever been paid to the American bench, is embodied in this simple fact, that if the executive officers of this government have ever desired to take away the life or the liberty of a citizen contrary to law, they have not come into the courts to get it done, they have gone outside of the courts, and stepped over the Constitution, and created their own tribunals. But the framers of the Constitution could act only upon the experience of that country whose history they knew most about, and there they saw the ferocity of Jeffreys and Scroggs, the timidity of Guilford, and the venality of such men as Saunders and Wright. It seems necessary, therefore, not only to make the judiciary as perfect as possible, but to give the citizen yet another shield against his government. To that end they could think of no better provision than a public trial before an impartial jury. We do not assert that the jury trial is an infallible mode of ascertaining truth. Like everything human, it has its imperfections. We only say that it is the best protection for innocence and the surest mode of punishing guilt that has yet been discovered. It has borne the test of a longer experience, and borne it better than any other legal institution that ever existed among men. England owes more of her freedom, her grandeur, and her prosperity to that, than to all other causes put together. It has had the approbation not only of those who lived under it, but of great thinkers who looked at it calmly from a distance, and judged it impartially: Montesquieu and De Tocqueville speak of it with an admiration as rapturous as Coke and Blackstone. Within the present century, the most enlightened states of continental Europe have transplanted it into their countries; and no people ever adopted it once and were afterwards willing to part with it. It was only in 1830 that an interference with it in Belgium provoked a successful insurrection which permanently divided one kingdom into two. In the same year, the Revolution of the Barricades gave the right of trial by jury to every Frenchman. Those colonists of this country who came from the British Islands brought this institution with them, and they regarded it as the most precious part of their inheritance. The immigrants from other places where trial by jury did not exist became equally attached to it as soon as they understood what it was. There was no subject upon which all the inhabitants of the country were more perfectly unanimous than they were in their determination to maintain this great right unimpaired. An attempt was made to set it aside and substitute military trials in its place, by Lord Dunmore, in Virginia, and General Gage, in Massachusetts, accompanied with the excuse which has been repeated so often in late days, namely, that rebellion had made it necessary; but it excited intense popular anger, and every colony, from New Hampshire to Georgia, made common cause with the two whose rights had been especially invaded. Subsequently the Continental Congress thundered it into the ear of the world, as an unendurable outrage, sufficient to justify universal insurrection against the authority of the government which had allowed it to be done. If the men who fought out our Revolutionary contest, when they came to frame a government for themselves and their posterity, had failed to insert a provision making the trial by jury perpetual and universal, they would have proved themselves recreant to the principles of that liberty of which they professed to be the special champions. But they were guilty of no such thing. They not only took care of the trial by jury, but they regulated every step to be taken in a criminal trial. They knew very well that no people could be free under a government which had the power to punish without restraint. Hamilton expressed, in the Federalist, the universal sentiment of his time, when he said, that the arbitrary power of conviction and punishment for pretended offences, had been the great engine of despotism in all ages and all countries. The existence of such a power is incompatible with freedom. But our fathers were not absurd enough to put unlimited power in the hands of the ruler and take away the protection of law from the rights of individuals. It was not thus that they meant to secure the blessings of liberty to themselves and their posterity. They determined that not one drop of the blood which had been shed on the other side of the Atlantic, during seven centuries of contest with arbitrary power, should sink into the ground; but the fruits of every popular victory should be garnered up in this new government. Of all the great rights already won they threw not an atom away. They went over Magna Charta, the Petition of Right, the Bill of Rights, and the rules of the common law, and whatever was found there to favor individual liberty they carefully inserted in their own system, improved by clearer expression, strengthened by heavier sanctions, and extended by a more universal application. They put all those provisions into the organic law, so that neither tyranny in the executive, nor party rage in the legislature, could change them without destroying the government itself. Look at the particulars and see how carefully everything connected with the administration of punitive justice is guarded. 1. No ex post facto law shall be passed. No man shall be answerable criminally for any act which was not defined and made punishable as a crime by some law in force at the time when the act was done. 2. For an act which is criminal he cannot be arrested without a judicial warrant founded on proof of probable cause. He shall not be kidnapped and shut up on the mere report of some base spy who gathers the materials of a false accusation by crawling into his house and listening at the keyhole of his chamber door. 3. He shall not be compelled to testify against himself. He may be examined before he is committed, and tell his own story if he pleases; but the rack shall be put out of sight, and even his conscience shall not be tortured; nor shall his unpublished papers be used against him, as was done most wrongfully in the case of Algernon Sydney. 4. He shall be entitled to a speedy trial; not kept in prison for an indefinite time without the opportunity of vindicating his innocence. 5. He shall be informed of the accusation, its nature, and grounds. The public accuser must put the charge into the form of a legal indictment, so that the party can meet it full in the face. 6. Even to the indictment he need not answer unless a grand jury, after hearing the evidence, shall say upon their oaths that they believe it to be true. 7. Then comes the trial, and it must be before a regular court, of competent jurisdiction, ordained and established for the State and district in which the crime was committed; and this shall not be evaded by a legislative change in the district after the crime is alleged to be done. 8. His guilt or innocence shall be determined by an impartial jury. These English words are to be understood in their English sense, and they mean that the jurors shall be fairly selected by a sworn officer from among the peers of the party, residing within the local jurisdiction of the court. When they are called into the box he can purge the panel of all dishonesty, prejudice, personal enmity, and ignorance, by a certain number of peremptory challenges, and as many more challenges as he can sustain by showing reasonable cause. 9. The trial shall be public and open, that no underhand advantage may be taken. The party shall be confronted with the witnesses against him, have compulsory process for his own witnesses, and be entitled to the assistance of counsel in his defence. 10. After the evidence is heard and discussed, unless the jury shall, upon their oaths, unanimously agree to surrender him up into the hands of the court as a guilty man, not a hair of his head can be touched by way of punishment. 11. After a verdict of guilty he is still protected. No cruel or unusual punishment shall be inflicted, nor any punishment at all, except what is annexed by the law to his offence. It cannot be doubted for a moment that if a person convicted of an offence not capital were to be hung on the order of a judge, such judge would be guilty of murder as plainly as if he should come down from the bench, turn up the sleeves of his gown, and let out the prisoner's blood with his own hand. 12. After all is over, the law continues to spread its guardianship around him. Whether he is acquitted or condemned he shall never again be molested for that offence. No man shall be twice put in jeopardy of life or limb for the same cause. These rules apply to all criminal prosecutions. But in addition to these, certain special regulations were required for treason, — the one great political charge under which more innocent men have fallen than any other. A tyrannical government calls everybody a traitor who shows the least unwillingness to be a slave. In the absence of a constitutional provision it was justly feared that statutes might be passed which would put the lives of the most patriotic citizens at the mercy of minions that skulk about under the pay of an executive. Therefore a definition of treason was given in the fundamental law, and the legislative authority could not enlarge it to serve the purpose of partisan malice. The nature and amount of evidence required to prove the crime was also prescribed, so that prejudice and enmity might have no share in the conviction. And lastly, the punishment was so limited that the property of the party could not be confiscated and used to reward the agents of his prosecutors, or strip his family of their subsistence. If these provisions exist in full force, unchangeable and irrepealable, then we are not hereditary bondsmen. Every citizen may safely pursue his lawful calling in the open day; and at night, if he is conscious of innocence, he may lie down in security, and sleep the sound sleep of a freeman. They are in force, and they will remain in force. We have not surrendered them, and we never will. The great race to which we belong has not degenerated. But how am I to prove the existence of these rights? I do not propose to do it by a long chain of legal argumentation, nor by the production of numerous books with the leaves turned down and the pages marked. If it depended upon judicial precedents, I think I could produce as many as might be necessary. If I claimed this freedom, under any kind of prescription, I could prove a good long possession in ourselves and those under whom we claim it. I might begin with Tacitus, and show how the contest arose in the forests of Germany more than two thousand years ago; how the rough virtues and sound common sense of that people established the right of trial by jury, and thus started on a career which has made their posterity the foremost race that ever lived in all the tide of time. The Saxons carried it to England, and were ever ready to defend it with their blood. It was crushed out by the Danish invasion; and all that they suffered of tyranny and oppression, during the period of their subjugation, resulted from the want of trial by jury. If that had been conceded to them, the reaction would not have taken place which drove back the Danes to their frozen homes in the North. But those ruffian seakings could not understand that, and the reaction came. Alfred, the greatest of revolutionary heroes and the wisest monarch that ever sat on a throne, made the first use of his power, after the Saxons restored it, to re-establish their ancient laws. He had promised them that he would, and he was true to them because they had been true to him. But it was not easily done; the courts were opposed to it, for it limited their power — a kind of power that everybody covets — the power to punish without regard to law. He was obliged to hang forty-four judges in one year for refusing to give his subjects a trial by jury. When the historian says that he hung them, it is not meant that he put them to death without a trial. He had them impeached before the grand council of the nation, the Wittenagemote, the Parliament of that time. During the subsequent period of Saxon domination, no man on English soil was powerful enough to refuse a legal trial to the meanest peasant. If any minister or any king, in war or in peace, had dared to punish a freeman by a tribunal of his own appointment, he would have roused the wrath of the whole population; all orders of society would have resisted it; lord and vassal, knight and squire, priest and penitent, bocman and socman, master and thrall, copyholder and villein, would have risen in one mass and burnt the offender to death in his castle, or followed him in his flight and torn him to atoms. It was again trampled down by the Norman conquerors; but the evils resulting from the want of it united all classes in the effort which compelled King John to restore it by the Great Charter. Everybody is familiar with the struggles which the English people, during many generations, made for their rights with the Plantagenets, the Tudors, and the Stuarts, and which ended finally in the Revolution of 1688, when the liberties of England were placed upon an impregnable basis by the Bill of Rights. Many times the attempt was made to stretch the royal authority far enough to justify military trials; but it never had more than temporary success. Five hundred years ago Edward II closed up a great rebellion by taking the life of its leader, the Earl of Lancaster, after trying him before a military court. Eight years later that same king, together with his lords and commons in Parliament assembled, acknowledged with shame and sorrow that the execution of Lancaster was a mere murder, because the courts were open, and he might have had a legal trial. Queen Elizabeth, for sundry reasons affecting the safety of the state, ordered that certain offenders not of her army should be tried according to the law martial. But she heard the storm of popular vengeance rising, and, haughty, imperious, self-willed as she was, she yielded the point; for she knew that upon that subject the English people would never consent to be trifled with. Strafford, as Lord Lieutenant of Ireland, tried the Viscount Stormont before a military commission, and executed him. When impeached, he pleaded in vain that Ireland was in a state of insurrection, that Stormont was a traitor, and the army would be undone if it could not defend itself without appealing to the civil courts. The Parliament was deaf; the king himself could not save him; he was condemned to suffer death as a traitor and a murderer. Charles I issued commissions to divers officers for the trial of his enemies according to the course of military law. If rebellion ever was an excuse for such an act, he could surely have pleaded it; for there was scarcely a spot in his kingdom, from sea to sea, where the royal authority was not disputed by somebody. Yet the Parliament demanded, in their petition of right, and the king was obliged to concede, that all his commissions were illegal. James II claimed the right to suspend the operation of the penal laws — a power which the courts denied — but the experience of his predecessors taught him that he could not suspend any man's right to a trial. He could easily have convicted the seven bishops of any offence he saw fit to charge them with, if he could have selected their judges from among the mercenary creatures to whom he had given commands in his army. But this he dared not do. He was obliged to send the bishops to a jury, and endure the mortification of seeing them acquitted. He, too, might have had rebellion for an excuse, if rebellion be an excuse. The conspiracy was already ripe which, a few months afterwards, made him an exile and an outcast; he had reason to believe that the Prince of Orange was making his preparations, on the other side of the Channel, to invade the kingdom, where thousands burned to join him; nay, he pronounced the bishops guilty of rebellion by the very act for which he arrested them. He had raised an army to meet the rebellion, and he was on Hounslow Heath reviewing the troops organized for that purpose, when he heard the great shout of joy that went up from Westminster Hall, was echoed back from Temple Bar, spread down the city and over the Thames, and rose from every vessel on the river — the simultaneous shout of two hundred thousand men for the triumph of justice and law. The truth is, that no authority exists anywhere in the world for the doctrine of the Attorney-General. No judge or jurist, no statesman or parliamentary orator, on this or the other side of the water, sustains him. Every elementary writer is against him. All military authors who profess to know the duties of their profession admit themselves to be under, not above the laws. No book can be found in any library to justify the assertion that military tribunals may try a citizen at a place where the courts are open. When I say no book, I mean, of course, no book of acknowledged authority. I do not deny that hireling clergymen have often been found to dishonor the pulpit by trying to prove the divine right of kings and other rulers to govern as they please. Court sycophants and party hacks have many times written pamphlets, and perhaps large volumes, to show that those whom they serve should be allowed to work out their bloody will upon the people. No abuse of power is too flagrant to find its defenders. But this case does not depend on authority. It is rather a question of fact than of law. I prove my right to a trial by jury just as I would prove my title to an estate, if I held in my hand a solemn deed conveying it to me, coupled with undeniable evidence of long and undisturbed possession under and according to the deed. There is the charter by which we claim to hold it. It is called the Constitution of the United States. It is signed with the sacred name of George Washington, and with thirty-nine other names, only less illustrious than his. They represented every independent State then upon this continent, and each State afterwards ratified their work by a separate convention of its own people. Every State that subsequently came in acknowledged that this was the great standard by which their rights were to be measured. Every man that has ever held office in the country, from that time to this, has taken an oath that he would support and sustain it through good report and through evil. The Attorney-General himself became a party to the instrument when he laid his hand upon the holy gospels, and swore that he would give to me and every other citizen the full benefit of all it contains. What does it contain? This among other things: The trial of all crimes except in cases of impeachment shall be by jury. Again: No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. This is not all; another article declares that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for the witnesses in his favor; and to have the assistance of counsel for his defence. Is there any ambiguity there? If that does not signify that a jury trial shall be the exclusive and only means of ascertaining guilt in criminal cases, then I demand to know what words, or what collocation of words in the English language would have that effect? Does this mean that a fair, open, speedy, public trial by an impartial jury shall be given only to those persons against whom no special grudge is felt by the Attorney-General, or the judge-advocate, or the head of a department? Shall this inestimable privilege be extended only to men whom the administration does not care to convict? Is it confined to vulgar criminals, who commit ordinary crimes against society, and shall it be denied to men who are accused of such offences as those for which Sydney and Russell were beheaded, and Alice Lisle was hung, and Elizabeth Gaunt was burnt alive, and John Bunyan was imprisoned fourteen years, and Baxter was whipped at the cart's tail, and Prynn had his ears cut off? No; the words of the Constitution are all-embracing, as broad and general as the casing air. The trial of ALL crimes shall be by jury. ALL persons accused shall enjoy that privilege — and NO person shall be held to answer in any other way. That would be sufficient without more. But there is another consideration which gives it tenfold power. It is a universal rule of construction, that general words in any instrument, though they may be weakened by enumeration, are always strengthened by exceptions. Here is no attempt to enumerate the particular cases in which men charged with criminal offences shall be entitled to a jury trial. It is simply declared that all shall have it. But that is coupled with a statement of two specific exceptions: cases of impeachment; and cases arising in the land or naval forces. These exceptions strengthen the application of the general rule to all other cases. Where the lawgiver himself has declared when and in what circumstances you may depart from the general rule, you shall not presume to leave that onward path for other reasons, and make different exceptions. To exceptions the maxim is always applicable, that expressio unius exclusio est alterius. But we shall be answered that the judgment under consideration was pronounced in time of war, and it is, therefore, at least, morally excusable. There may, or there may not, be something in that. I admit that the merits or demerits of any particular act, whether it involve a violation of the Constitution or not, depend upon the motives that prompted it, the time, the occasion, and all the attending circumstances. When the people of this country come to decide upon the acts of their rulers, they will take all these things into consideration. But that presents the political aspect of the case, with which we have nothing to do here. I would only say, in order to prevent misapprehension, that I think it is precisely in a time of war and civil commotion that we should double the guards upon the Constitution. In peaceable and quiet times, our legal rights are in little danger of being overborne; but when the wave of power lashes itself into violence and rage, and goes surging up against the barriers which were made to confine it, then we need the whole strength of an unbroken Constitution to save us from destruction. There has been and will be another quasi political argument, — necessity. If the law was violated because it could not be obeyed, that might be an excuse. But no absolute compulsion is pretended here. These commissioners acted, at most, under what they regarded as a moral necessity. The choice was left them to obey the law or disobey it. The disobedience was only necessary as means to an end which they thought desirable; and now they assert that though these means are unlawful and wrong, they are made right, because without them the object could not be accomplished; in other words, the end justifies the means. There you have a rule of conduct denounced by all law, human and divine, as being pernicious in policy and false in morals. Nothing that the worst men ever propounded has produced so much oppression, misgovernment, and suffering, as this pretence of state necessity. A great authority calls it the tyrant's plea; and the common honesty of all mankind has branded it with infamy. Of course, it is mere absurdity to say that the petitioner was necessarily deprived of his right to a fair and legal trial. But concede for the argument's sake that a trial by jury was wholly impossible; admit that there was an absolute, overwhelming, imperious necessity operating so as literally to compel every act which the commissioners did, would that give their sentence of death the validity and force of a legal judgment pronounced by an ordained and established court? The question answers itself. This trial was a violation of law, and no necessity could be more than a mere excuse for those who committed it. If the commissioners were on trial for murder or conspiracy to murder, they might plead necessity if the fact were true, just as they would plead insanity or anything else to show that their guilt was not wilful. But we are now considering the legal effect of their decision, and that depends on their legal authority to make it. They had no such authority; they usurped a jurisdiction which the law not only did not give them, but expressly forbade them to exercise, and it follows that their act is void, whatever may have been the real or supposed excuse for it. If these commissioners, instead of aiming at the life and liberty of the petitioner, had attempted to deprive him of his property by a sentence of confiscation, would any court in Christendom declare that such a sentence divested the title? Or would a person claiming under the sentence make his right any better by showing that the illegal assumption of jurisdiction was accompanied by some excuse which might save the commissioners from a criminal prosecution? That a necessity for violating the law is nothing more than a mere excuse to the perpetrator, and does not in any legal sense change the quality of the act itself in its operation upon other parties, is a proposition too plain on original principles to need the aid of authority. I do not see how any man is to stand up and dispute it. But there is decisive authority upon the point. [] The counsel on the other side will not assert that there was war at Indianapolis in 1864, for they have read Coke's Institute, and the opinion of Mr. Justice Grier, in the Prize Cases, and they know it to be a settled rule that war cannot be said to exist where the civil courts are open. They will not set up the plea of necessity, for they are well aware that it would not be true in point of fact. They will hardly take the ground that any kind of necessity could give legal validity to that which the law forbids. This, therefore, must be their position: that although there was no war at the place where this commission sat, and no actual necessity for it, yet if there was a war anywhere else, to which the United States were a party, the technical effect of such war was to take the jurisdiction away from the civil courts and transfer it to army officers. Nothing else is left them. They may not state their proposition precisely as I state it; that is too plain a way of putting it. But, in substance, it is their doctrine. What else can they say? They will admit that the Constitution is not altogether without a meaning; that at a time of universal peace it imposes some kind of obligation upon those who swear to support it. If no war existed they would not deny the exclusive jurisdiction of the civil courts in criminal cases. How then did the military get jurisdiction in Indiana? They must answer the question by saying that military jurisdiction comes from the mere existence of war; and it comes in Indiana only as the legal result of a war which is going on in Mississippi, Tennessee, or South Carolina. The Constitution is repealed, or its operation suspended in one state because there is war in another. The courts are open, the organization of society is intact, the judges are on the bench, and their process is not impeded; but their jurisdiction is gone. Why? For no reason, if not because war exists, and the silent, legal, technical operation of that fact is to deprive all American citizens of their right to a fair trial. That class of jurists and statesmen who hold that the trial by jury is lost to the citizen during the existence of war, must carry out their doctrine theoretically and practically to its ultimate consequences. The right of trial by jury being gone, all other rights are gone with it; therefore a man may be arrested without an accusation and kept in prison during the pleasure of his captors; his papers may be searched without a warrant; his property may be confiscated behind his back, and he has no earthly means of redress. Nay, an attempt to get a just remedy is construed as a new crime. He dare not even complain, for the right of free speech is gone with the rest of his rights. If you sanction that doctrine, what is to be the consequence? I do not speak of what is past and gone; but in case of a future war what results will follow from your decision indorsing the Attorney-General's views? They are very obvious. At the instant when the war begins, our whole system of legal government will tumble into ruin, and if we are left in the enjoyment of any privileges at all we will owe it not to the Constitution and laws, but to the mercy or policy of those persons who may then happen to control the organized physical force of the country. This puts us in a most precarious condition; we must have war often, do what we may to avoid it. The President or the Congress can provoke it, and they can keep it going even after the actual conflict of arms is over. They could make war a chronic condition of the country, and the slavery of the people perpetual. Nay, we are at the mercy of any foreign potentate who may envy us the possession of those liberties which we boast of so much; he can shatter our Constitution without striking a single blow or bringing a gun to bear upon us. A simple declaration of hostilities is more terrible to us than an army with banners. To me the argument set up by the other side seems a delusion simply. In a time of war, more than at any other time, Public Liberty is in the hands of the public officers. And she is there in double trust; first, as they are citizens, and therefore bound to defend her, by the common obligation of all citizens; and next, as they are her special guardians. The opposing argument, when turned into its true sense, means this, and this only: that when the Constitution is attacked upon one side, its official guardians may assail it upon the other; when rebellion strikes it in the face, they may take advantage of the blindness produced by the blow, to stab it in the back. The Convention when it framed the Constitution, and the people when they adopted it, could have had no thought like that. If they had supposed that it would operate only while perfect peace continued, they certainly would have given us some other rule to go by in time of war; they would not have left us to wander about in a wilderness of anarchy, without a lamp to our feet, or a guide to our path. Another thing proves their actual intent still more strikingly. They required that every man in any kind of public employment, state or national, civil or military, should swear, without reserve or qualification, that he would support the Constitution. Surely our ancestors had too much regard for the moral and religious welfare of their posterity, to impose upon them an oath like that, if they intended and expected it to be broken half the time. These statesmen who settled our institutions, had no such notions in their minds. Washington deserved the lofty praise bestowed upon him by the president of Congress when he resigned his commission, — that he had always regarded the rights of the civil authority through all changes and through all disasters. When his duty as President afterwards required him to arm the public force to suppress a rebellion in Western Pennsylvania, he never thought that the Constitution was abolished, by virtue of that fact, in New Jersey, or Maryland, or Virginia. Opposite counsel must be conscious that when they deny the binding obligation of the Constitution they must put some other system of law in its place. They do so; and argue that, while the Constitution, and the acts of Congress, and Magna Charta, and the common law, and all the rules of natural justice remain under foot, they will try American citizens according to what they call the laws of war. But what do they mean by this? Do they mean that code of public law which defines the duties of two belligerent parties to one another, and regulates the intercourse of neutrals with both? If yes, then it is simply a recurrence to the law of nations, which has nothing to do with the subject. Do they mean that portion of our municipal code which defines our duties to the government in war as well as in peace? Then they are speaking of the Constitution and laws, which declare in plain words that the government owes every citizen a fair legal trial, as much as the citizen owes obedience to the government. When they appeal to international law, it is silent; and when they interrogate the law of the land, the answer is a contradiction of their whole theory. The Attorney-General conceives that all persons whom he and his associates choose to denounce for giving aid to the Rebellion, are to be treated as being themselves a part of the Rebellion, — they are public enemies, and therefore they may be punished without being found guilty by a competent court or a jury. This convenient rule would outlaw every citizen the moment he is charged with a political offence. But political offenders are precisely the class of persons who most need the protection of a court and jury, for the prosecutions against them are most likely to be unfounded both in fact and in law. Whether innocent or guilty, to accuse is to convict them before the men who generally sit in military courts. But this court decided in the Prize Cases that all who live in the enemy's territory are public enemies, without regard to their personal sentiments or conduct; and the converse of the proposition is equally true, — that all who reside inside of our own territory are to be treated as under the protection of the law. If they help the enemy they are criminals, but they cannot be punished without legal conviction. You have heard much, and you will hear more, concerning the natural and inherent right of the government to defend itself without regard to law. This is fallacious. In a despotism the autocrat is unrestricted in the means he may use for the defence of his authority against the opposition of his own subjects or others; and that is what makes him a despot. But in a limited monarchy the prince must confine himself to a legal defence of his government. If he goes beyond that, and commits aggressions on the rights of the people, he breaks the social compact, releases his subjects from all their obligations to him, renders himself liable to be dragged to the block or driven into exile. A violation of law on pretence of saving such a government as ours is not self-preservation, but suicide. Salus populi suprema lex. This is true; but it is the safety of the people, not the safety of the ruler, which is the supreme law. The maxim is revolutionary and expresses simply the right to resist tyranny without regard to prescribed forms. It can never be used to stretch the powers of government against the people. But this government of ours has power to defend itself without violating its own laws; it does not carry the seeds of destruction in its own bosom. It is clothed from head to foot in a panoply of defensive armor. What are the perils which may threaten its existence? I am not able at this moment to think of more than these, which I am about to mention: foreign invasion, domestic insurrection, mutiny in the army and navy, corruption in the civil administration, and last, but not least, criminal violations of its laws committed by individuals among the body of the people. Have we not a legal mode of defence against all these? Military force repels invasion and suppresses insurrection; you preserve discipline in the army and navy by means of courts-martial; you preserve the purity of the civil administration by impeaching dishonest magistrates; and crimes are prevented and punished by the regular judicial authorities. You are not compelled to use these weapons against your enemies, merely because they and they only are justified by the law; you ought to use them because they are more efficient than any other, and less liable to be abused. There is another view of the subject which settles all controversy about it. No human being in this country can exercise any kind of public authority which is not conferred by law; and under the United States it must be given by the express words of a written statute. Whatever is not so given is withheld, and the exercise of it is positively prohibited. Courts-martial in the army and navy are authorized; they are legal institutions; their jurisdiction is limited, and their whole code of procedure is regulated by act of Congress. Upon the civil courts all the jurisdiction they have or can have is bestowed by law, and if one of them goes beyond what is written its action is ultra vires and void. But a military commission is not a court-martial, and it is not a civil court. It is not governed by the law which is made for either, and it has no law of its own. Its terrible authority is undefined, and its exercise is without any legal control. Undelegated power is always unlimited. The field that lies outside of the Constitution and laws has no boundary. So these commissions have no legal origin and no legal name by which they are known among the children of men; no law applies to them; and they exercise all power for the paradoxical reason that none belongs to them rightfully. How is a military commission organized? What shall be the number and rank of its members? What offences come within its jurisdiction? What is its code of procedure? How shall witnesses be compelled to attend it? Is it perjury for a witness to swear falsely? What is the function of the judge-advocate? Does he tell the members how they must find, or does he only persuade them to convict? Is he the agent of the government, to command them what evidence they shall admit and what sentence they shall pronounce; or does he always carry his point, right or wrong, by the mere force of eloquence and ingenuity? What is the nature of their punishments? May they confiscate property and levy fines as well as imprison and kill? In addition to strangling their victim, may they also deny him the last consolations of religion, and refuse his family the melancholy privilege of giving him a decent grave? To none of these questions can the Attorney-General or any one make a reply, for there is no law on the subject. The power exercised through these military commissions is not only unregulated by law but it is incapable of being so regulated. It asserts the right of the executive government, without the intervention of the judiciary, to capture, imprison, and kill any person to whom that government or its paid dependents may choose to impute an offence. This, in its very essence, is despotic and lawless. It is never claimed or tolerated except by those governments which deny the restraints of all law. It operates in different ways; the instruments which it uses are not always the same; it hides its hideous features under many disguises; it assumes every variety of form. But in all its mutations of outward appearance it is still identical in principle, object, and origin. It is always the same great engine of despotism which Hamilton described it to be. We cannot help but see that military commissions, if suffered to go on, will be used for pernicious purposes. I have made no allusion to their history in the last five years. But what can be the meaning of an effort to maintain them among us? Certainly not to punish actual guilt. All the ends of true justice are attained by the prompt, speedy, impartial trial which the courts are bound to give. Is there any danger that crime will be winked upon by the judges? Does anybody pretend that courts and juries have less ability to decide upon facts and law than the men who sit in military tribunals? What just purpose, then, can they serve? None. But while they are powerless to do good, they may become omnipotent to trample upon innocence, to gag the truth, to silence patriotism, and crush the liberties of the country. They would be organized to convict, and the conviction would follow the accusation as surely as night follows the day. A government, of course, will accuse none before such a commission except those whom it predetermines to destroy. The accuser can choose the judges, and will select those who are known to be ignorant, unprincipled, and the most ready to do whatever may please the power which gives them pay and promotion. The willing witness could be found as easily as the superserviceable judge. The treacherous spy and the base informer would stock such a market with abundant perjury; for the authorities that employ them will be bound to protect as well as reward them. A corrupt and tyrannical government, with such an engine at its command, would shock the world with the enormity of its crimes. ON THE SIDE OF THE UNITED STATES. REPLY. Mr. Butler: What are the exact facts set forth in the record, and what the exact question raised by it? The facts of the case are all in the relator's petition and the exhibits thereto attached, and must, for the purposes of this hearing, be taken to be indisputably true; at least as against him. He is estopped to deny his own showing. Now, every specification upon which the petitioner was tried by the military commission concludes with this averment: This, on or about, &c., — the different time and place as applied to the different parties — at or near Indianapolis, Indiana, or wherever else it may be, a State within the military lines of the army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy. It may be said that these specifications are only the averments of the government against the relator. But they, in fact, are a part of the exhibits of the relator, upon which he seeks relief; are an integral part of the case presented by him, and cannot be controlled by the pretence set up on the other side, that the court should take judicial notice of the contrary. Judicial cognizance of a fact, by the court, as a matter of public notoriety, or of history, is only a mode of proof of the fact; but no proof can be heard, in behalf of the relator, in contradiction of the record. Therefore, what we at the bar must discuss, and what the court must decide, is, what law is applicable to a theatre of military operations, within the lines of an army, in a State which has been and constantly is threatened with invasion. Yet a large portion of the argument on the other side has proceeded on an assumption which is itself a denial of the facts stated upon the record. The fact that military operations were being carried on in Indiana, at the places where these occurrences are said to have taken place, is a question that opposite counsel desire to argue, and desire farther that the court should take judicial notice that the fact was not as stated by the record. Is the question, then, before this court, one of law or of fact? The matter becomes exceedingly important. We do freely agree, that if at the time of these occurrences there were no military operations in Indiana, if there was no army there, if there was no necessity of armed forces there, if there was no need of a military commission there, if there was nothing there on which the war power of the United States could attach itself, then this commission had no jurisdiction to deal with the relator, and the question proposed may as well at once be answered in the negative. What, then, is the state of facts brought here by the record? For, whatever question may have divided the learned judges in the court below, we here at the bar are divided toto cœlo upon a vital question of fact. If the facts are to be assumed as the record presents them, then much of the argument of the other side has been misapplied. The facts of record should have been questioned, if at all, in the court below. If the fact, stated in the record, of war on the theatre of these events — which in our judgment is a fact conclusive upon the jurisdiction of the military commission — is not admitted, then it is of the greatest importance to the cause that it be ascertained. If that fact was questioned below, some measures should have been taken to ascertain it, before the certificate of division of opinion was sent up. Otherwise the Circuit Court, in defiance of settled practice, and also of the act of 1802, has sent up a case in which material facts are not stated, and there is no jurisdiction under the act to hear. [] Certainly we at the bar seem to be arguing upon different cases; the one side on the assumption that the acts of Milligan and his trial took place in the midst of a community whose social and legal organization had never been disturbed by any war at all, the other on the assumption that they took place in a theatre of military operations, within the lines of the army, in a State which had been and then was threatened with invasion. But the very form of question submitted, whether upon the facts stated in the petition and exhibits, the military commission had jurisdiction to try the several relators in manner and form as set forth; — not upon any other facts of which the court or anybody else will take notice, or which can be brought to the court in any other way than upon the petition and exhibits, — is conclusive as to the facts or case upon which the argument arises. The question, we therefore repeat — and we pray the court to keep it always in mind — is whether upon the facts stated in the petition and exhibit, the commission had jurisdiction; and the great and determining fact stated, and without which we have no standing in court, is that these acts of Milligan and his felonious associates, took place in the theatre of military operations, within the lines of the army, in a State which had been and then was constantly threatened with invasion. Certainly the learned judges in the court below, being on the ground, were bound to take notice of the facts which then existed in Indiana, and if they were not as alleged in the petition and exhibits, ought to have spread them as they truly were upon the record. Then they would have certified the question to be, whether under that state of facts so known by them, and spread upon the record, the military commission had jurisdiction, and not as they have certified, that the question was whether they had jurisdiction on the state of facts set forth in the relator's petition and exhibits. The strength of the opposing argument is, that this court is bound to know that the courts of justice in Indiana were open at the time when these occurrences are alleged to have happened. Where is the proper allegation to this effect upon the record, upon which this court is to judge? If the court takes judicial notice that the courts were open, must it not also take judicial notice how, and by whose protection, and by whose permission they were so open? that they were open because the strong arm of the military upheld them; because by that power these Sons of Liberty and Knights of the American Circle, who would have driven them away, were arrested, staid, and punished. If judicial notice is to be taken of the one fact, judicial notice must be taken of the other also; — of the fact, namely, that if the soldiers of the United States, by their arms, had not held the State from intestine domestic foes within, and the attacks of traitors leagued with such without; had not kept the ten thousand rebel prisoners of war confined in the neighborhood from being released by these knights and men of the Order of the Sons of Liberty; there would have been no courts in Indiana, no place in which the Circuit Judge of the United States could sit in peace to administer the law. If, however, this court will take notice that justice could only be administered in Indiana because of the immediate protection of the bayonet, and therefore by the permission of the commander of her armed forces, to which the safety of the State, its citizens, courts, and homes were committed, then the court will have taken notice of the precise state of facts as to the existence of warlike operations in Indiana, which is spread upon the record, and we are content with the necessary inferences. As respects precedents. I admit that there is a dearth of precedents bearing on the exact point raised here. Why is this? It is because the facts are unprecedented; because the war out of which they grew is unprecedented also; because the clemency that did not at once strike down armed traitors, who in peaceful communities were seeking to overturn all authority, is equally unprecedented; because the necessity which called forth this exertion of the reserved powers of the government is unprecedented, as well as all the rest. Let opposing counsel show the instance in an enlightened age, in a civilized and Christian country, where almost one-half its citizens undertook, without cause, to overthrow the government, and where coward sympathizers, not daring to join them, plotted in the security given by the protecting arms of the other half to aid such rebellion and treason, and we will perhaps show a precedent for hanging such traitors by military commissions. This is the value of this case: whenever we are thrown into a war again; whenever, hereafter, we have to defend the life of the nation from dangers which invade it, we shall have set precedents how a nation may preserve itself from self-destruction. In the conduct of the war, and in dealing with the troubles which preceded it, we have been obliged to learn up to these questions; to approach the result step by step. Opposite counsel (Mr. Black) has admitted that there were dangers which might threaten the life of the nation, and in that case it would be the duty of the nation, and it would be its right, to defend itself. He classed those dangers thus: first, foreign invasion; second, domestic insurrection; third, mutiny in the army and navy; fourth, corruption in civil administration; and last, crimes committed by individuals; and he says further, there were within the Constitution powers sufficient to enable the country to defend itself from each and all these dangers. But there is yet another, a more perilous danger, one from which this country came nearer ruin than it ever came by any or by all others. That danger is imbecility of administration; such an administration as should say that there is no constitutional right in a State to go out of the Union, but that there is no power in the Constitution to coerce a State or her people, if she choose to go out. It is in getting rid of that danger, unenumerated, that we have had to use military power, military orders, martial law, and military commissions. The same counsel was pleased to put certain questions, difficult as he thinks to be answered, as to the method of proceeding before military commissions; but no suggestion is made upon the record or upon the briefs, that all the proceedings were not regular according to the custom and usages of war. They have all the indicia of regularity. There being then nothing alleged why the proceedings are not regular, we are brought back to the main question. A portion of the argument on the other side has proceeded upon the mistake, that a military commission is a court, either under, by virtue of, or without the Constitution. It is not a court, and that question was decided not long ago. A military commission, whatever it may be, derives its power and authority wholly from martial law, and by that law, and by military authority only, are its proceedings to be adjudged and reviewed. In Dynes v. Hoover, [] this was decided by this tribunal in regard to a court-martial. The conclusion was sustained in Ex parte Vallandigham. [†] The last quoted case is like the present. Vallandigham was tried by a military commission, and he invoked the aid of the court to get away from it. Why did not this court then decide, as opposing counsel assert the law to be, that under no possible circumstances can a military commission have any right, power, authority, or jurisdiction? No such decision was made. It was decided that a military commission is not a court within the meaning of the 14th section of the act of 1789: that this court has no power to issue a writ of certiorari, or to review or pronounce any opinion upon the proceedings of a military commission; that affirmative words in the Constitution, giving this court original jurisdiction in certain cases must be construed negatively as to all others. Mr. Justice Wayne, in delivering the opinion of the court, says: In Ex parte Metzger [] it was determined that a writ of certiorari could not be allowed to examine a commitment by a district judge, under the treaty between the United States and France, for the reason that the judge exercised a special authority, and that no provision had been made for the revision of his judgment. So does a court of military commission exercise a special authority. In the case before us, it was urged that the decision in Metzger's case had been made upon the ground that the proceeding of the district judge was not judicial in its character, but that the proceedings of the military commission were so; and further, it was said that the ruling in that case had been overruled by a majority of the judges in Raine's case. There is a misapprehension of the report of the latter case, and as to the judicial character of the proceedings of the military commission, we cite what was said by this court in the case of The United States v. Ferreira. [†] The powers conferred by Congress upon the district judge and the secretary are judicial in their nature, for judgment and discretion must be exercised by both of them; but it is not judicial in either case, in the sense in which judicial power is granted to the courts of the United States. Nor can it be said that the authority to be exercised by a military commission is judicial in that sense. It involves discretion to examine, to decide, and sentence, but there is no original jurisdiction in the Supreme Court to issue a writ of habeas corpus ad subjiciendum, to review or reverse its proceedings, or the writ of certiorari to revise the proceedings of a military commission. Under such language there is an end of this case. We have already stated that military commissions obtain their jurisdiction from martial law. What, then, is martial law? We have also already defined it. [] But our definition has not been observed. Counsel treat it as if we would set up the absolutely unregulated, arbitrary, and unjust caprice of a commanding and despotic officer. Let us restate and analyze it. Martial law is the will of the commanding officer of an armed force or of a geographical military department, expressed in time of war, within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military or supreme executive chief. This definition is substantially taken from the despatches of the Duke of Wellington. When he was called upon to answer a complaint in Parliament for this exercise of military jurisdiction and martial law in Spain, he thus defined it. [†] On another occasion, when speaking of Viscount Torrington's administration as military governor of Ceylon, he said thus: The general who declared martial law, and commanded that it should be carried into execution, was bound to lay down distinctly the rules, and regulations, and limits according to which his will was to be carried out. Now he had, in another country, carried on martial law; that was to say, he had governed a large proportion of the population of a country, by his own will. But, then, what did he do? He declared that the country should be governed according to its own national laws, and he carried into execution that will. He governed the country strictly by the laws of the country; and he governed it with such moderation, he must say, that political servants and judges, who at first had fled or had been expelled, afterwards consented to act under his direction. The judges sat in the courts of law, conducting their judicial business and administering the law under his direction. It is the will of the commanding officer. Being to be exercised upon the instant, it can have no other source. The commanding officer of an armed force, is another element of the definition. Martial law must have another distinguishing quality. It must be the will of the commander, exercised under the limitations mentioned in time of war, and that is a portion of the definition which is fatal to the authorities read by my brother Garfield, as I shall show. When is it to be exercised? When necessity demands and prudence dictates. That is to say, in carrying on war, when in the judgment of him to whom the country has intrusted its welfare — whose single word, as commander of the army, can devote to death thousands of its bravest and best sons — we give to him, when necessity demands, the discretion to govern, outside of the ordinary forms and constitutional limits of law, the wicked and disloyal within the military lines. In time of war, to save the country's life, you send forth your brothers, your sons, and put them under the command, under the arbitrary will of a general to dispose of their persons and lives as he pleases; but if, for the same purpose, he touches a Milligan, a Son of Liberty, the Constitution is invoked in his behalf — and we are told that the fabric of civil government is about to fall! We submit that if he is intrusted with the power, the will, the authority to act in the one case, he ought to have sufficient discretion to deal with the other; and that the country will not be so much endangered from the use of both, as it would be if he used the first and not the last. Martial law is known to our laws; it is constitutional, and was derived from our mother country. De Lolme says: [] In general, it may be laid down as a maxim, that, where the sovereign looks to his army for the security of his person and authority, the same military laws by which this army is kept together, must be extended over the whole nation; not in regard to military duties and exercises, but certainly in regard to all that relates to the respect due to the sovereign and to his orders. The martial law, concerning these tender points, must be universal. The jealous regulations, concerning mutiny and contempt of orders, cannot be severely enforced on that part of the nation which secures the subjection of the rest, and enforced, too, through the whole scale of military subordination, from the soldier to the officer, up to the very head of the military system, while the more numerous and inferior part of the people are left to enjoy an unrestrained freedom; — that secret disposition which prompts mankind to resist and counteract their superiors, cannot be surrounded by such formidable checks on one side, and be left to be indulged to a degree of licentiousness and wantonness on the other. Passing from one of the most learned commentators upon England's Constitution, to one who may be said to have lived our Constitution; who came into life almost as the Constitution came into life; whose father was the second chief executive officer of the nation; conversant with public affairs and executing constitutional law in every department of the government from earliest youth, wielding himself chief executive power, and admitted to be one of the ablest constitutional lawyers of his time — what principles do we find asserted? Mr. John Quincy Adams, speaking of the effect of war upon the municipal institutions of a country, said: [] Slavery was abolished in Columbia, first, by the Spanish General Morillo, and, secondly, by the American General Bolivar. It was abolished by virtue of a military command given at the head of the army, and the abolition continues to be law to this day. It was abolished by the laws of war, and not by municipal enactments; the power was exercised by military commanders, under instructions, of course, from their respective governments. And here I recur again to the examples of General Jackson. What are you now about in Congress? You are about passing a grant to refund to General Jackson the amount of a certain fine imposed upon him by a judge, under the laws of the State of Louisiana. You are going to refund him the money, with interest; and this you are going to do because the imposition of the fine was unjust. Because General Jackson was acting under the laws of war, and because the moment you place a military commander in a district which is the theatre of war, the laws of war apply to that district. ... . I might furnish a thousand proofs to show that the pretensions of gentlemen to the sanctity of their municipal institutions under a state of actual invasion and of actual war, whether servile, civil, or foreign, is wholly unfounded, and that the laws of war do, in all such cases, take the precedence. I lay this down as the law of nations. I say that the military authority takes for the time the place of all municipal institutions, and slavery among the rest; and that, under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States, but the commander of the army has power to order the universal emancipation of the slaves. I have given here more in detail a principle, which I have asserted on this floor before now, and of which I have no more doubt, than that you, sir, occupy that chair. I give it in its development, in order that any gentleman, from any part of the Union, may, if he thinks proper, deny the truth of the position, and may maintain his denial; not by indignation, not by passion and fury, but by sound and sober reasoning from the laws of nations and laws of war. And if my position can be answered and refuted, I shall receive the refutation with pleasure; I shall be glad to listen to reason, aside, as I say, from indignation and passion. And if, by force of reasoning, my understanding can be convinced, I here pledge myself to recant what I have asserted. The case of General Jackson's fine was the test case of martial law in this country. What were the facts? On the 15th of December, 1814, General Jackson declared martial law within his camp, extending four miles above and four miles below the city. The press murmured, but did not speak out until after there came unofficial news of peace. Then it was said that the declaration of peace, ipso facto, dissolved martial law; that the General had no right to maintain martial law any longer; and murmurs loudly increased. But, the General said, that he had not received any official news of the establishment of peace; and, until it came officially, he should not cease his military operations for safety of the city. Thereupon what happened? One Louallier was arrested by the military, for alleged seditious language, and Judge Hall interposed with his writ of habeas corpus. This was on the 5th of March, 1815. The battle of New Orleans, which substantially removed all danger, was fought on the 8th of January. General Jackson sent his aide-de-camp and arrested Judge Hall. The cry then as now was that the necessity for martial law had ceased; why hold Judge Hall, after the news of peace had come? Why not turn him over to the civil authorities? What next took place? Peace was declared in an official manner; the proclamation of martial law was withdrawn; Judge Hall took his seat on the bench, and his first act was to issue an attachment of contempt for General Jackson, who was accordingly brought before him. When General Jackson offered an explanation of his conduct, the Judge refused to receive it, and fined him $1000. The fine was paid in submission to the law. Years afterwards, Congress proceeded not to excuse, not to explain away that act of General Jackson, declaring martial law, but to justify it. I am surprised to hear it said that nobody justified General Jackson. Whether General Jackson was to be excused or to be justified was the whole question at issue between the parties in Congress. A bill was brought in to indemnify Major-General Andrew Jackson for damages sustained in the discharge of his official duty. Some who were in the Senate of that day, said: We will not justify, we will excuse, this action in General Jackson; we move, therefore, to change the title of the bill into a `bill for the relief of General Jackson.' But Mr. R.J. Walker, speaking for General Jackson, made a minority report, in which he put the whole question upon the ground of justification. [] He said: That General Jackson, and those united with him in the defence of New Orleans, fully believed this emergency to exist, is beyond all doubt or controversy. If, then, this was the state of the case, it was the duty of General Jackson to have made the arrest; and the act was not merely excusable but justifiable. It was demanded by a great and overruling necessity... . . This great law of necessity — of defence of self, of home, and of country — never was designed to be abrogated by any statute, or by any constitution. This was the law which justified the arrest and detention of the prisoner; and, however the act may now be assailed, it has long since received the cordial approbation of the American people. That General Jackson never desired to elevate the military above the civil authority is proved by his conduct during the trial, and after the imposition of this fine. The title of the bill is in strict conformity with the facts of the case, and, in the opinion of the undersigned, should be retained. The country demands that his money shall be returned as an act of justice. It was a penalty incurred for saving the country, and the country requires that it shall be restored. The fine was returned with interest. The case of Johnson v. Duncan, in the Supreme Court of Louisiana, and cited on the other side, was decided by judges sitting under the excitement of the collision between the military and the judges. As an authority it is of no value. The case of Luther v. Borden, in which Mr. Justice Woodbury's dissenting opinion, strange to say, has been cited by my brother Garfield against the opinion of the court, decides that martial law did obtain in Rhode Island, and sustains General Jackson. The court say: If the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one, who from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were reasonable grounds for supposing he might be there concealed. We have put in our definition of martial law the words, in time of war, tempore belli. That portion of the definition answers every question, as to when this law may obtain. Now what was the Earl of Lancaster's case, quoted and so much relied on by the other side? The earl raised a rebellion; and was condemned and executed by sentence of a court-martial, after the rebellion had been subdued. Thereupon his brother brought a writ of error, by leave of the king, before the king himself in Parliament, for the purpose of reversing the judgment and obtaining his lands, and among the errors assigned, was this: Yet the said Earl Thomas, &c., was taken in time of peace, and brought before the king himself; and the said our lord and father the king, &c., remembered that the same Thomas was guilty of the seditions and other felonies in the aforesaid contained; without this, that he arraigned him therefor, or put him to answer as is the custom according to the law, &c., and thus, without arraignment and answer, the same Thomas, of error and contrary to the law of the land, was in time of peace adjudged to death, notwithstanding that it is notorious and manifest that the whole time in which the said misdeeds and crimes contained in the said record and proceedings were charged against the said earl, and also the time in which he was taken, and in which our said lord and father the king remembered him to be guilty, &c., and in which he was adjudged to death, was a time of peace, and the more especially as throughout the whole time, aforesaid, the Chancery and other courts of pleas of our lord the king were open, and in which right was done to every man, as it used to be; nor did the same lord the king in that time ever side with standard unfurled; the said lord and father the king, &c., in such time of peace ought not against the same earl, thus to have remembered nor to have adjudged him to death, without arraignment and answer. So that the whole record turned upon the question whether the rebellion being ended, peace having come, the Earl of Lancaster was liable to be adjudged by military commission in time of peace, and it was held that that was against common right. The Petition of Right is referred to; but it was not, as is supposed, because of the ship-money and the trial of Hampden and others, that this great petition was passed. It was because King Charles had quartered in the town of Plymouth, and in the County of Devon, certain soldiers in time of peace, upon the inhabitants thereof; and had issued his commission that those counties should be governed by martial law, while the soldiers, in time of peace, were quartered there, and therefore came the Petition cited; and it was adjudged that military commissions, issued in time of peace, should never have place in the law of England; and all the people to that, even to this day, heartily agree. [] Governor Wall's case shows truly that martial law did not protect him for his action under it; but if there ever was a judicial murder, a case where a man, without cause and without right, was put to death, this was the case. Lord Chief Justice Campbell, speaking of it, says: [†] The prosecution brought great popularity to the Attorney-General and the government of which he was the organ, upon the supposition that it presented a striking display of the stern impartiality of British jurisprudence; but after a calm review of the evidence, I fear it will rather be considered by posterity as an instance of the triumph of vulgar prejudice over humanity and justice. Another case cited is that of the Rev. John Smith, of Demerara, who was tried and convicted by a court-martial, for inciting negroes to mutiny in Demerara, six weeks after a rebellion was wholly quelled, and when there seems to have been no necessity for such proceedings, nor any reason that they should be carried on. The excuse of the governor was, that the planters were so infuriated against Mr. Smith that he thought that trying him by court-martial would secure him better justice. I agree that this was no excuse, that no necessity here existed. Brougham and Mackintosh brought all their eloquence to overturn martial law. Their words have been cited; but the other side forgot to state that upon a division of the House of Commons, Brougham and Mackintosh were in a minority of forty-six. So that after a deliberate argument of many days, the great final tribunal of English justice decided that Mr. John Smith's case was rightly tried under martial law. The case is an authority not for, but against, the side which it is cited to support. It is said that in 1865, Congress refused to pass an act which would throw any discredit on military commissions, or limit their action wherever a rebel or a traitor, secret or open, was to be found upon whom their jurisdiction should operate. If such tribunals for certain purposes were not lawful in the judgment of the House of Representatives; if military commissions had no place in the laws of the land, why the necessity of action by Congress to repeal them? Reference has been made by opposing counsel to what they consider the views of General Washington; and an argument has been attempted to be drawn from this. Now, the first military commission upon this continent of which there is any record sat by command of Washington himself. Its proceedings were published by order of Congress, and are well known. I refer to André's case. That was not a court-martial; there was no order to adjudicate; no finding; no sentence; only a report of facts to General Washington, and then Washington issued the order, in virtue of his authority as commander-in-chief, which condemned André to death. But we do not stop there. This may be said to have been the exceptional case of a spy. To give, then, another illustration of what Washington thought of the rights of military commanders in the field, attention may be directed to the trial of Joshua Hett Smith. Smith was the man at whose house Arnold and Andre met. He was taken and tried by a military court for treasonable practices. The civil courts were open at Tarrytown, at that time; the British Constitution as adopted by our colonial fathers extended over him, but still Washington tried Smith by a military court. In Chandler's Criminal Trials, [] Smith gives an account of his interview, when he was first brought before Washington, which I cite in order that the court may understand how the Father of his Country regarded the extent of his powers as military commander. Smith says: After as much time had elapsed as I supposed was thought necessary to give me rest from my march, I was conducted into a room, where were standing General Washington in the centre, and on each side General Knox and the Marquis de La Fayette, with Washington's two aides-de-camp, Colonels Harrison and Hamilton. Provoked at the usage I received, I addressed General Washington, and demanded to know for what cause I was brought before him in so ignominious a manner? The General answered, sternly, that I stood before him charged with the blackest treason against the citizens of the United States; that he was authorized, from the evidence in his possession, and from the authority vested in him by Congress, to hang me immediately as a traitor, and that nothing could save me but a candid confession who in the army, or among the citizens at large, were my accomplices in the horrid and nefarious designs I had meditated for the last ten days past. What now, may I ask, is to be thought of the argument of my opposing brethren, who assert that in civil courts the Constitution does not allow any pressure to be brought upon a man to make him confess, at the same time that they eulogize the military conduct of Washington? But what redress, it is asked, shall any citizen have if this power — so great, so terrible, and so quick in its effects — is abused? The same and only remedy that he can have whenever power is abused. If that power, under martial law, is used for personal objects of aggrandizement, or revenge; of imprisoning, one hour, any citizen, except when necessity under fair judgment demands, he ought to have an appeal to the courts of the country after peace, for redress of grievance. It has been said that martial law, and its execution by trials by military commission, is fatal to liberty and the pursuit of happiness; but we are only asking for the exercise of military power, when necessity demands and prudence dictates. If the civil law fails to preserve rights, and to insure safety and tranquillity to the country; if there is no intervention of military power to right wrongs and punish crime, an outraged community will improvise some tribunal for themselves, whose execution shall be as swift and whose punishments shall be as terrible as any exhibition of military power; some tribunal wholly unregulated and which is responsible to no one. We are not without such examples on this continent. The proclamation of 24th September, 1862, [] by which the President suspended the privilege of the writ of habeas corpus, and which proclamation was in full force during these proceedings, was within the power of the President, independently of the subsequent act of Congress, to make. Brown v. The United States [†] seems full on this point. It says: When the legislative authority, to whom the right to declare war is confined, has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it into effect. He has a discretion vested in him, as to the manner and extent, but he cannot lawfully transcend the rules of warfare established among civilized nations. He cannot lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims. The sovereignty, as to declaring war and limiting its effects, rests with the legislature. The sovereignty as to its execution rests with the President. However, the subsequent act of Congress [] did ratify what the President did; so that every way the view taken of his powers in the case just quoted stands firm. And the wisdom of this view appears nowhere more than in the present case. The court, of course, can have no knowledge how extensive was this Order of Sons of Liberty; how extensive was the organization of these American Knights in Indiana. It was a secret Order. Its vast extent was not known generally. But the Executive might have known; and if I might step out of the record, I could say that I am aware that he did know, that this Order professed to have one hundred thousand men enrolled in it in the States of Indiana, Ohio, and Illinois, so that no jury could be found to pass upon any case, and that any court-house wherein it had been attempted to try any of the conspirators, would have been destroyed. The President has judged that in this exigency a military tribunal alone could safely act. We have thus far grounded our case on the great law of nations and of war. Has the Constitution any restraining clause on the power thus derived? It is argued that the fourth, fifth, and sixth articles to the amendments to the Constitution are limitations of the war-making power; that they were made for a state of war as well as a state of peace, and aimed at the military authority as well as the civil. We have anticipated and partially answered this argument. [†] As we observed, by the Constitution, as originally adopted, there was no limitation put upon the war-making powers. It only undertook to limit one incident of the war-making power, — the habeas corpus; and if limit it can be called, observe the way in which that writ is guarded. It is provided that the writ of habeas corpus, in time of peace, shall not be suspended; it shall only be suspended when, in case of rebellion or invasion, the public safety requires; that is, in time of war. It seems to have been taken for granted by the Constitution that the writ is to be suspended in time of war because very different rules must then govern. The language of the Constitution is, that it shall not be suspended except, — showing that it was supposed that the war-making power would find it necessary to suspend the habeas corpus; and yet no other guard was thrown around it. By the subsequent amendments there was, as we conceive, but one limitation put upon the war-making power, and that was in regard to the quartering of soldiers in private houses. In no discussion upon these articles of amendment was there, in any State of the Union, a discussion upon the question, what should be their effect in time of war? Yet every one knew, and must have known, that each article would be inoperative in some cases in time of war. If in some cases, why not in all cases where necessity demands it, and where prudence dictates? There is, in truth, no other way of construing constitutional provisions, than by the maxim, Singula singulis reddenda. Each provision of the Constitution must be taken to refer to the proper time, as to peace or war, in which it operates, as well as to the proper subject of its provisions. For instance, the Constitution provides that no person shall be deprived of liberty without due process of law. And yet, as we know, whole generations of people in this land — as many as four millions of them at one time — people described in the Constitution by this same word, persons, have been till lately deprived of liberty ever since the adoption of the Constitution, without any process of law whatever. The Constitution provides, also, that no person's right to bear arms shall be infringed; yet these same people, described elsewhere in the Constitution as persons, have been deprived of their arms whenever they had them. If you are going to stand on that letter of the Constitution which is set up by the opposite side in the matter before us, how are we to explain such features in the Constitution, in various provisions in which slaves are called persons, with nothing in the language used to distinguish them from persons who were free. Mr. Black has said, that the very time when a constitutional provision is wanted, is the time of war, and that in time of war, of civil war especially, and the commotions just before and just after it, the constitutional provisions should be most rigidly enforced. We agree to that; but we assert that, in peace, when there is no commotion, the constitutional provisions should be most rigidly enforced as well. Constitutional provisions, within their application, should be always most rigidly enforced. We do not ask anything outside of or beyond the Constitution. We insist only that the Constitution be interpreted so as to save the nation, and not to let it perish. We quote again the solemnly expressed opinion of Mr. Adams, in 1836, in another of his speeches: In the authority given to Congress by the Constitution of the United States to declare war, all the powers, incident to war, are by necessary implication conferred upon the government of the United States. Now, the powers incidental to war are derived, not from any internal, municipal source, but from the laws and usages of nations. There are, then, in the authority of Congress and the Executive, two classes of powers, altogether different in their nature, and often incompatible with each other, — the war power and the peace power. The peace power is limited by regulation and restraints, by provisions prescribed within the Constitution itself. The war power is limited only by the law and usages of nations. The power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, property, and life. It is much insisted on, that the determining question as to the exercise of martial law, is whether the civil courts are in session; but civil courts were in session in this city during the whole of the Rebellion, and yet this city has been nearly the whole time under the martial law. There was martial law in this city, when, in 1864, the rebel chief, Jubal Early, was assaulting it, and when, if this court had been sitting here, it would have been disturbed by the enemy's cannon. Yet courts — ordinary courts — were in session. It does not follow, because the ordinary police machinery is in motion for the repression of ordinary crimes, because the rights between party and party are determined without the active interference of the military in cases where their safety and rights are not involved, that, therefore, martial law must have lost its power. This exercise of civil power is, however, wholly permissive, and is subordinated to the military power. And whether it is to be exercised or not, is a matter within the discretion of the commander. That is laid down by Wellington, [] and the same thing is to be found in nearly every instance of the exercise of martial law. The commanders of armies, in such exercise, have been glad, if by possibility they could do so, to have the courts carry on the ordinary operations of justice. But they rarely permit to them jurisdiction over crimes affecting the well-being of the army or the safety of the state. The determining test is, in the phrase of the old law-books, that the King's courts are open. But the King's Court, using that phrase for the highest court in the land, should not be open under the permission of martial law. In a constitutional government like ours, the Supreme Court should sit within its own jurisdiction, as one of the three great co-ordinate powers of the government, supreme, untrammelled, uncontrolled, unawed, unswayed, and its decrees should be executed by its own high fiat. The Supreme Court has no superior, and, therefore, it is beneath the office of a judge of that court, inconsistent with the dignity of the tribunal whose robes he wears, that he should sit in any district of country where martial law is the supreme law of the state, and where armed guards protect public tranquillity; where the bayonet has the place of the constable's baton; where the press is restrained by military power, and where a general order construes a statute. On the contrary, we submit that all crimes and misdemeanors, of however high a character, which have occurred during the progress and as a part of the war, however great the criminals, either civil or military, should be tried upon the scene of the offence, and within the theatre of military operations; that justice should be meted out in such cases, by military commissions, through the strong arm of the military law which the offenders have invoked, and to which they have appealed to settle their rights. We do not desire to exalt the martial above the civil law, or to substitute the necessarily despotic rule of the one, for the mild and healthy restraints of the other. Far otherwise. We demand only, that when the law is silent; when justice is overthrown; when the life of the nation is threatened by foreign foes that league, and wait, and watch without, to unite with domestic foes within, who had seized almost half the territory, and more than half the resources of the government, at the beginning; when the capital is imperilled; when the traitor within plots to bring into its peaceful communities the braver rebel who fights without; when the judge is deposed; when the juries are dispersed; when the sheriff, the executive officer of law, is powerless; when the bayonet is called in as the final arbiter; when on its armed forces the government must rely for all it has of power, authority, and dignity; when the citizen has to look to the same source for everything he has of right in the present, or hope in the future, — then we ask that martial law may prevail, so that the civil law may again live, to the end that this may be a government of laws and not of men. At the close of the last term the CHIEF JUSTICE announced the order of the court in this and in two other similar cases (those of Bowles and Horsey) as follows: 1. That on the facts stated in said petition and exhibits a writ of habeas corpus ought to be issued, according to the prayer of the said petitioner. 2. That on the facts stated in the said petition and exhibits the said Milligan ought to be discharged from custody as in said petition is prayed, according to the act of Congress passed March 3d, 1863, entitled, An act relating to habeas corpus and regulating judicial proceedings in certain cases. 3. That on the facts stated in said petition and exhibits, the military commission mentioned therein had no jurisdiction legally to try and sentence said Milligan in the manner and form as in said petition and exhibits are stated.",the merits and main question.
+471,145653,1,1,"(1) Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government's speech-related restrictions differently depending upon the general category of activity. Compare, e. g., Burson v. Freeman, 504 U. S. 191 (1992) (plurality opinion) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980) (commercial speech), and Rust v. Sullivan, 500 U. S. 173 (1991) (government speech). (2) Where the speech of government employees is at issue, the First Amendment offers protection only where the offer of protection itself will not unduly interfere with legitimate governmental interests, such as the interest in efficient administration. That is because the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public's democratically determined will. (3) Consequently, where a government employee speaks as an employee upon matters only of personal interest, the First Amendment does not offer protection. Connick v. Myers, 461 U. S. 138, 147 (1983). Where the employee speaks as a citizen . . . upon matters of public concern, the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968). That test, called, in legal shorthand,  Pickering balancing, requires a judge to balance . . . the interests of the employee in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Ibid. See also Connick, supra, at 142. (4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely, when the government employee both speaks upon a matter of public concern and does so in the course of his ordinary duties as a government employee.",I begin with what I believe is common ground:
+472,110365,1,3,"The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government. Our Constitution promotes that independence specifically by providing: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Art. III, § 1. Hamilton, in The Federalist No. 79, P. 491 (1818) (emphasis deleted), emphasized the importance of protecting judicial compensation: In the general course of human nature, a power over a man's subsistence amounts to a power over his will. The relationship of judges' compensation to their independence was by no means a new idea initiated by the authors of the Constitution. The Act of Settlement in 1701, designed to correct abuses prevalent under the reign of the Stuart Kings, includes a provision that, upon the accession of the successor to then Princess Anne, Judges Commissions be made Quamdiu se bene gesserint [during good behavior], and their Salaries ascertained and established . . . . 12 & 13 Will. III, ch. 2, § III, cl. 7 (1701). This English statute is the earliest legislative acknowledgment that control over the tenure and compensation of judges is incompatible with a truly independent judiciary, free of improper influence from other forces within government. Later, Parliament passed, and the King assented to, a statute implementing the Act of Settlement providing that a judge's salary would not be decreased so long as the Patents and Commissions of them, or any of them respectively, shall continue and remain in force. 1 Geo. III, ch. 23, § III (1760). These two statutes were designed to maintain both the dignity and independence of the judges. 1 W. Blackstone, Commentaries . Originally, these same protections applied to colonial judges as well. In 1761, however, the King converted the tenure of colonial judges to service at his pleasure. [21] The interference this change brought to the administration of justice in the Colonies soon became one of the major objections voiced against the Crown. Indeed, the Declaration of Independence, in listing the grievances against the King, complained: He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. Independence won, the colonists did not forget the reasons that caused them to separate from the Mother Country. Thus, when the Framers met in Philadelphia in 1787 to draft our organic law, they made certain that in the judicial articles both the tenure and the compensation of judges would be protected from one of the evils that had brought on the Revolution and separation. Madison's notes of the Constitutional Convention reveal that the draftsmen first reached a tentative arrangement whereby the Congress could neither increase nor decrease the compensation of judges. Later, Gouverneur Morris succeeded in striking the prohibition on increases; with others, he believed the Congress should be at liberty to raise salaries to meet such contingencies as inflation, a phenomenon known in that day as it is in ours. Madison opposed the change on the ground judges might tend to defer unduly to the Congress when that body was considering pay increases. The concern for the ravages of inflation is revealed in Madison's comment: The variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value. 2 M. Farrand, The Records of the Federal Convention of 1787, p. 45 (1911). Morris criticized the proposal for overlooking changes in the state of the economy; the value of wheat may change, he said, and leave the judges undercompensated. The Convention finally adopted Morris' motion to allow increases by the Congress, thereby accepting a limited risk of external influence in order to accommodate the need to raise judges' salaries when times changed. [22] As Hamilton later explained: It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation [of judges] in the Constitution inadmissible. What might be extravagant to-day might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. The Federalist No. 79, pp. 491-492 (1818). This Court has recognized that the Compensation Clause also serves another, related purpose. As well as promoting judicial independence, it ensures a prospective judge that, in abandoning private practice—more often than not more lucrative than the bench—the compensation of the new post will not diminish. Beyond doubt, such assurance has served to attract able lawyers to the bench and thereby enhances the quality of justice. Evans v. Gore, 253 U. S., at 253; 1 J. Kent, Commentaries on American Law 276 (1826).",The Compensation Clause
+473,110365,2,2,"The statute applying to Year 1 was signed by the President during the business day of October 1, 1976. By that time, the 4.8% increase under the Adjustment Act already had taken effect, since it was operative with the start of the month—and the new fiscal year—at the beginning of the day. The statute became law only upon the President's signing it on October 1; it therefore purported to repeal a salary increase already in force. Thus it diminished the compensation of federal judges. [29] The Government contends that Congress could reduce compensation as long as it did not discriminate against judges, as such, during the process. That the freeze applied to various officials in the Legislative and the Executive Branches, as well as judges, does not save the statute, however. This is quite different from the situation in O'Malley v. Woodrough, 307 U. S. 277 (1939). There the Court held that the Compensation Clause was not offended by an income tax levied on Article III judges as well as on all other taxpayers; there was no discrimination against the plaintiff judge. Federal judges, like all citizens, must share the material burden of the government . . . . Id., at 282. The inclusion in the freeze of other officials who are not protected by the Compensation Clause does not insulate a direct diminution in judges' salaries from the clear mandate of that Clause; the Constitution makes no exceptions for nondiscriminatory reductions. [30] Accordingly, we hold that the statute with respect to Year 1, as applied to compensation of members of the certified class, violates the Compensation Clause of Art. III. Year 2 Unlike the statute for Year 1, the statute for Year 2 was signed by the President before October 1, when the 7.1% raise under the Comparability Act was due to take effect. Year 2 thus confronts us squarely with the question of whether Congress may, before the effective date of a salary increase, rescind such an increase scheduled to take effect at a later date. The District Court held that by including an annual cost-of-living adjustment in the statutory definitions of the salaries of Article III judges, see supra, at 204, and n. 2, Congress made the annual adjustment, from that moment on, a part of judges' compensation for constitutional purposes. Subsequent action reducing those adjustments diminishes compensation within the meaning of the Compensation Clause. Relying on Evans v. Gore, 253 U. S., at 254, the District Court held that such action reduces the amount a judge . . . has been promised, and all amounts thus promised fall within the protection of the Clause. We are unable to agree with the District Court's analysis and result. Our discussion of the Framers' debates over the Compensation Clause, supra, at 219-220, led to a conclusion that the Compensation Clause does not erect an absolute ban on all legislation that conceivably could have an adverse effect on compensation of judges. [31] Rather, that provision embodies a clear rule prohibiting decreases but allowing increases, a practical balancing by the Framers of the need to increase compensation to meet economic changes, such as substantial inflation, against the need for judges to be free from undue congressional influence. The Constitution delegated to Congress the discretion to fix salaries and of necessity placed faith in the integrity and sound judgment of the elected representatives to enact increases when changing conditions demand. Congress enacted the Adjustment Act based on this delegated power to fix and, periodically, increase judicial compensation. It did not thereby alter the compensation of judges; it modified only the formula for determining that compensation. Later, Congress decided to abandon the formula as to the particular years in question. For Year 2, as opposed to Year 1, the statute was passed before the Adjustment Act increases had taken effect—before they had become a part of the compensation due Article III judges. Thus, the departure from the Adjustment Act policy in no sense diminished the compensation Article III judges were receiving; it refused only to apply a previously enacted formula. [32] A paramount—indeed, an indispensable—ingredient of the concept of powers delegated to coequal branches is that each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches. To say that the Congress could not alter a method of calculating salaries before it was executed would mean the Judicial Branch could command Congress to carry out an announced future intent as to a decision the Constitution vests exclusively in the Congress. [33] We therefore conclude that a salary increase vests for purposes of the Compensation Clause only when it takes effect as part of the compensation due and payable to Article III judges. With regard to Year 2, we hold that the Compensation Clause did not prohibit Congress from repealing the planned but not yet effective cost-of-living adjustment of October 1, 1977, when it did so before October 1, the time it first was scheduled to become part of judges' compensation. The statute in Year 2 thus represents a constitutionally valid exercise of legislative authority. Year 3 For our purposes, the legal issues presented by the statute in Year 3 are indistinguishable from those in Year 2. Each statute eliminated—before October 1—the Adjustment Act salary increases contemplated but not yet implemented. Each statute was passed and signed by the President before the Adjustment Act increases took effect, in the case of Year 3, on September 30. For the reasons set forth in our discussion of the issues for Year 2, we hold that the statute in Year 3 did not violate the Compensation Clause. Year 4 Before reaching the constitutional issues implicated in Year 4, we must resolve a problem of statutory construction. On its face, the statute in Year 4 applies in terms to executive employees, which includes Members of Congress. See supra, at 208. It does not expressly mention judges. Appellees contend that even if Congress constitutionally could freeze the salaries of Article III judges, it did not do so in this statute. We are satisfied that Congress' use of the phrase executive employees, in context, was intended to include Article III judges. The full title of the Adjustment Act is the Executive Salary Cost-of-Living Adjustment Act, but it is clear that it was intended to apply to officials in the Legislative and the Judicial Branches as well. [34] The title does not control over the terms of the statute. The statutes in the three preceding years undeniably applied to judges, and we can discern no indication that the Congress chose to single them out for an exemption when it was including Executive and Legislative officials. Most important, both the Conference Report and the Chairman of the House Appropriations Committee, speaking on the floor, made explicit what already was implicit: the limiting statute would apply to judges as well. See H. R. Conf. Rep. No. 96-513, p. 3 (1979); 125 Cong. Rec. 27530, 27532 (1979) (remarks of Rep. Whitten). [35] Having concluded that the statute in Year 4 was intended to apply to judges as well as other high-level federal officials, we are confronted with a situation similar to that in Year 1. Here again, the statute purported to revoke an increase in judges' compensation after those statutes had taken effect. For the reasons governing the statute as to Year 1, we hold that the statute revoking the increase for Year 4 violated the Compensation Clause insofar as it applied to members of the certified class.",Year 1
+474,118050,2,4,"The bill also provides new and more effective penalties where employers fail to meet the funding standards. In the past, an attempt has been made to enforce the relatively weak funding standards existing under present law by providing for immediate vesting of the employees' rights, to the extent funded, under plans which do not meet these standards. This procedure, however, has proved to be defective since it does not directly penalize those responsible for the underfunding. For this reason, the bill places the obligation for funding and the penalty for underfunding on the person on whom it belongs—namely, the employer. H. R. Rep. No. 93-807, p. 28 (1974). Accord, S. Rep. No. 93-383, p. 24 (1973). The Committee Reports also stated that, [s]ince the employer remains liable for the contributions necessary to meet the funding standards even after the payment of the excise taxes, it is anticipated that few, if any, employers will willfully violate these standards. H. R. Rep. No. 93-807, supra, at 28; S. Rep. No. 93-383, supra, at 24-25. Given the patently punitive function of § 4971, we conclude that § 4971 must be treated as imposing a penalty, not authorizing a tax. Accordingly, we hold that the tax under § 4971(a) was not entitled to seventh priority as an excise tax under § 507(a)(7)(E), but instead is, for bankruptcy purposes, a penalty to be dealt with as an ordinary, unsecured claim.",The legislative history reflects the statute's punitive character:
+475,118099,2,1,"Congress enacted the National Voter Registration Act of 1993 (NVRA), 107 Stat. 77, 42 U. S. C. § 1973gg et seq., to take effect for States like Mississippi on January 1, 1995. The NVRA requires States to provide simplified systems for registering to vote in federal elections, i. e., elections for federal officials, such as the President, congressional Representatives, and United States Senators. The States must provide a system for voter registration by mail, § 1973gg—4, a system for voter registration at various state offices (including those that provide public assistance and those that provide services to people with disabilities), § 1973gg—5, and, particularly important, a system for voter registration on a driver's license application, § 1973gg—3. The NVRA specifies various details about how these systems must work, including, for example, the type of information that States can require on a voter registration form. §§ 1973gg—3(c)(2), 1973gg—7(b). It also imposes requirements about just when, and how, States may remove people from the federal voter rolls. §§ 1973gg—6(a)(3), (4). The NVRA adds that it does not supersede, restrict or limit the application of the Voting Rights Act of 1965, and that it does not authoriz[e] or requir[e] conduct that is prohibited by the Voting Rights Act of 1965. § 1973gg—9(d). The Voting Rights Act Section 5 of the Voting Rights Act of 1965 (VRA), among other things, prohibits a State with a specified history of voting discrimination, such as Mississippi, from enact[ing] or seek[ing] to administer any . . . practic[e], or procedure with respect to voting different from that in force or effect on November 1, 1964, unless and until the State obtains preclearance from the United States Attorney General (Attorney General) or the United States District Court for the District of Columbia. § 1973c. Preclearance is, in effect, a determination that the change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. Ibid. In the language of § 5 jurisprudence, this determination involves a determination that the change is not retrogressive. Beer v. United States, 425 U. S. 130, 141 (1976); 28 CFR § 51.54(a) (1996).",The National Voter Registration Act
+476,107969,1,2,"After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong. Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat petitioner Powell and that, since the House of Representatives is not a continuing body [6] and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a case or controversy within the meaning of Art. III: [7] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as punishment a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H. R. Res. No. 2, 91st Cong., 1st Sess., 115 Cong. Rec. H21 (daily ed., January 3, 1969); and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot. [8] Simply stated, a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Judgments 35-37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U. S. 75, 86-94 (1947); 6A J. Moore, Federal Practice  57.13 (2d ed. 1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all prerogatives, privileges and emoluments for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, [9] the Court considered whether the possibility that Alejandrino was entitled to back salary required it to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose. Id., at 533. Characterizing the issue of Alejandrino's salary as a mere incident to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id., at 533-534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot. Respondents believe that Powell's salary claim is also a mere incident to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. [10] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. [11] Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available when Alejandrino was decided. [12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 93; cf. United States v. California, 332 U. S. 19, 25-26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U. S. C. ž 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F. 2d 29 (C. A. 2d Cir. 1958); United States Lines Co. v. Shaughnessy, 195 F. 2d 385 (C. A. 2d Cir. 1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. [13] There is no suggestion that petitioners' averments as to declaratory relief are insufficient and Powell's allegedly unconstitutional deprivation of salary remains unresolved. Respondents further argue that Powell's wholly incidental and subordinate demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the primary and principal relief sought was the seating of petitioner Powell in the 90th Congress rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U. S. 116 (1966), rejects respondents' theory that the mootness of a primary claim requires a conclusion that all secondary claims are moot. At the Bond oral argument it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered the case moot. We replied: The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded. 385 U. S., at 128, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, [14] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated while in this case Powell has been. [15] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot. Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. [16]",mootness.
+477,107969,1,3,"Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, ž 6, [17] is an absolute bar to petitioners' action. This Court has on four prior occasions ÔÇö Dombrowski v. Eastland, 387 U. S. 82 (1967); United States v. Johnson, 383 U. S. 169 (1966); Tenney v. Brandhove, 341 U. S. 367 (1951); and Kilbourn v. Thompson, 103 U. S. 168 (1881)ÔÇöbeen called upon to determine if allegedly unconstitutional action taken by legislators or legislative employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases and tender for decision three distinct issues: (1) whether respondents in participating in the exclusion of petitioner Powell were acting in the sphere of legitimate legislative activity, Tenney v. Brandhove, supra, at 376; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause; [18] and (3) even if this action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues. The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, [19] finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. [20] Drawing upon this history, we concluded in United States v. Johnson, supra, at 181, that the purpose of this clause was to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile judiciary. Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament, [21] we have held that it would be a narrow view to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are things generally done in a session of the House by one of its members in relation to the business before it. Kilbourn v. Thompson, supra, at 204. Furthermore, the clause not only provides a defense on the merits but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 85; see Tenney v. Brandhove, supra, at 377. Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 373, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity: In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence. [22] Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, see Marbury v. Madison, 1 Cranch 137, and expressly in Kilbourn v. Thompson , the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest. The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland [23] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employeesÔÇöthe Sergeant at Arms, the Doorkeeper and the ClerkÔÇöas well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that in Kilbourn the presence of the Sergeant at Arms and in Dombrowski the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions. That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision. Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. [24] Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions. A legislator is no more or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary rather than damages, or because the litigation questions action taken by the employee within rather than without the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. [25] In Kilbourn and Dombrowski we thus dismissed the action against members of Congress but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged congressional action since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell. [26] As was said in Kilbourn, in language which time has not dimmed: Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void. 103 U. S., at 199.",speech or debate clause.
+478,107969,1,4,"The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of CongressÔÇö307 to 116. 113 Cong. Rec. 5037-5038. Article I, ž 5, grants the House authority to expel a member with the Concurrence of two thirds. [27] Respondents assert that the House may expel a member for any reason whatsoever and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below: Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues . . . to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade. 129 U. S. App. D. C., at 383-384, 395 F. 2d, at 606-607. Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. [28] Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended in the sense that it might amount to an expulsion. 113 Cong. Rec. 5020. The Speaker replied that action by a majority vote would be in accordance with the rules. Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted. Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House's own manual of procedure applicable in the 90th Congress states that both Houses have distrusted their power to punish in such cases. Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., 25 (1967); see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congresses. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress: [I]t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, `That has been so frequently decided in the House that it is no longer a matter of dispute.'  H. R. Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). [29] Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion rather than exclusion. [30] Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt: The House voted 202 votes for the previous question [31] leading toward the adoption of the [Select] Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment which ultimately excluded Powell. Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote would have failed, and then members would have been able to apply a lesser penalty. [32] We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.",exclusion or expulsion.
+479,107969,1,5,"As we pointed out in Baker v. Carr, 369 U. S. 186, 198 (1962), there is a significant difference between determining whether a federal court has jurisdiction of the subject matter and determining whether a cause over which a court has subject matter jurisdiction is justiciable. The District Court determined that to decide this case on the merits . . . would constitute a clear violation of the doctrine of separation of powers and then dismissed the complaint for want of jurisdiction of the subject matter. Powell v. McCormack, 266 F. Supp. 354, 359, 360 (D. C. D. C. 1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is justiciable. We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. [33] However, for reasons set forth in Part VI, infra, we disagree with the Court of Appeals' conclusion that this case is not justiciable. In Baker v. Carr, supra , we noted that a federal district court lacks jurisdiction over the subject matter (1) if the cause does not arise under the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a case or controversy within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra , our determination (see Part VI, B (1) infra ) that this cause presents no nonjusticiable political question disposes of respondents' contentions [34] that this cause is not a case or controversy. [35] Respondents first contend that this is not a case arising under the Constitution within the meaning of Art. III. They emphasize that Art. I, ž 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, ž 3, the Senate has the sole power to try all impeachments. Respondents argue that these delegations (to judge, to punish, and to try) to the Legislative Branch are explicit grants of judicial power to the Congress and constitute specific exceptions to the general mandate of Art. III that the judicial power shall be vested in the federal courts. Thus, respondents maintain, the power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed. [36] We reject this contention. Article III, ž 1, provides that the judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish. Further, ž 2 mandates that the judicial Power shall extend to all Cases . . . arising under this Constitution. . . . It has long been held that a suit arises under the Constitution if a petitioner's claim will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another. [37] Bell v. Hood, 327 U. S. 678, 685 (1946). See King County v. Seattle School District No. 1, 263 U. S. 361, 363-364 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one arising under the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law. Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i. e., 28 U. S. C. ž 1331 (a). Section 1331 (a) provides that district courts shall have jurisdiction in all civil actions wherein the matter in controversy . . . arises under the Constitution . . . . Respondents urge that even though a case may arise under the Constitution for purposes of Art. III, it does not necessarily arise under the Constitution for purposes of ž 1331 (a). Although they recognize there is little legislative history concerning the enactment of ž 1331 (a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of federal question jurisdiction. Respondents claim that the passage of the Force Act [38] in 1870 lends support to their interpretation of the intended scope of ž 1331. The Force Act gives the district courts jurisdiction over any civil action to recover possession of any office . . . wherein it appears that the sole question . . . arises out of denial of the right to vote . . . on account of race, color or previous condition of servitude. However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen. We have noted that the grant of jurisdiction in ž 1331 (a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U. S. 241, 246, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e. g., Mishkin, The Federal Question in the District Courts, 53 Col. L. Rev. 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa. L. Rev. 639, 644-645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra ; King County v. Seattle School District No. 1, supra . See, e. g., Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913). As respondents recognize, there is nothing in the wording or legislative history of ž 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that ž 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U. S. C. ž 1344. Further, the Act was passed five years before the original version of ž 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges, [39] there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in ž 1331.",subject matter jurisdiction.
+480,107969,2,1,"In deciding generally whether a claim is justiciable, a court must determine whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. Baker v. Carr, supra, at 198. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded. Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to mold effective relief for resolving this case. Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention. We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U. S. C. ž 2201, provides that a district court may declare the rights . . . of any interested party . . . whether or not further relief is or could be sought. The availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U. S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U. S. 75, 93 (1947); 6A J. Moore, Federal Practice  57.08 [3] (2d ed. 1966); cf. United States v. California, 332 U. S. 19, 25-26 (1947). We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.",General Considerations.
+481,107969,2,2,"
+Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e. g., Coleman v. Miller, 307 U. S. 433 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (1918). In Baker v. Carr, supra , we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U. S., at 217. Respondents' first contention is that this case presents a political question because under Art. I, ž 5, there has been a textually demonstrable constitutional commitment to the House of the adjudicatory power to determine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member. [40] In order to determine whether there has been a textual commitment to a co-ordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, ž 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents maintain that the House has broad power under ž 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution. If examination of ž 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, [41] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are inextricable from the case at bar. [42] Baker v. Carr, supra, at 217. In other words, whether there is a textually demonstrable constitutional commitment of the issue to a co-ordinate political department of government and what is the scope of such commitment are questions we must resolve for the first time in this case. [43] For, as we pointed out in Baker v. Carr, supra , [d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. Id., at 211. In order to determine the scope of any textual commitment under Art. I, ž 5, we necessarily must determine the meaning of the phrase to be the Judge of the Qualifications of its own Members. Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, ž 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally understood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the qualifications expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish standing incapacities, which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House [44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.
+Since our rejection of respondents' interpretation of ž 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents. The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 that Alex. Nowell, being Prebendary [ i. e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House . . . . J. Tanner, Tudor Constitutional Documents: A. D. 1485-1603, p. 596 (2d ed. 1930). This decision, however, was consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. [45] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142-143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. [46] See 1 W. Blackstone's Commentaries . Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedeÔÇöand we agreeÔÇöthat if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, ž 5. The earliest colonial exclusions also fail to support respondents' theory. [47] Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. [48] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled, [49] there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. [50] Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to foraging the Troops, 17 H. C. Jour. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved [t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is, incapable of being elected a Member to serve in this present Parliament . . . . Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. [51] Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. The theory seems to have been that expulsion lasted as long as the parliament . . . . Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries . Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i. e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). [52] Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled. Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th centuryÔÇö the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as  `the tools of despotism and corruption.'  R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. [53] Prior to Wilkes' trial, the House of Commons expelled him for publishing a false, scandalous, and seditious libel. 15 Parl. Hist. Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956). Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament declared him ineligible for membership and ordered that he be expelled this House. 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. [54] Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were subversive of the rights of the whole body of electors of this kingdom. 22 Parl. Hist. Eng. 1411 (1782). With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that the law of the land had regulated the qualifications of members to serve in parliament and those qualifications were not occasional but fixed. 16 Parl. Hist. Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled, [55] it appears that the House of Commons also repudiated any control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications. T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. [56] The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly [57] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. [58] In the course of its report, the Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they reflected dishonor on none but the authors of these violences. Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825). Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes [59] and his pursuit of the right to be seated in Parliament became a cause cÚlebre for the colonists. [T]he cry of `Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes's public career in the colonial press . . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour. 11 Gipson, supra, at 222. [60] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.
+Relying heavily on Charles Warren's analysis [61] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct. The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause  `requiring certain qualifications of landed property & citizenship'  and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions. Id., at 123. [62] Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to landed property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116-117. The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, ž 2. Id., at 213. [63] On August 10, the Convention considered the Committee of Detail's proposal that the Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient. Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. . . . It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction. Id., at 249-250. [64] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. [65] In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the indisputable right [of the people] to return whom they thought proper [66] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and dangerous because it would be much more liable to abuse. Id., at 250. Gouverneur Morris then moved to strike with regard to property from the Committee's proposal. His intention was to leave the Legislature entirely at large. Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body. Ibid. [67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties. Ibid. [68] Shortly thereafter, the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be the judge of the . . . qualifications of its own members. Id., at 254. One other decision made the same day is very important to determining the meaning of Art. I, ž 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum: and in emergencies [one] faction might be dangerously abused. Id., at 254. He therefore moved that with the concurrence of two-thirds be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, ž 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was too important to be exercised by a bare majority, while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. [69] Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, ž 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read: Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Id., at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the deliberations of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the standing incapacities for membership in the House of Commons. See 1 W. Blackstone's Commentaries -176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, [70] had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. [71] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. [72] Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only to revise the stile of and arrange the articles which had been agreed to . . . . 2 Farrand 553. [T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. [73] Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of ž 5. For example, they emphasize Hamilton's reply to the antifederalist charge that the new Constitution favored the wealthy and well-born: The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.  The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.) Madison had expressed similar views in an earlier essay, [74] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue. Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, ž 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to confer on the rich and well-born, all honours. Brutus No. IV, N. Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. [75] The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: [T]he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed. 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). [76] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, ž 2, cl. 2, as it respects the qualifications of the elected: It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state. 3 Elliot's Debates 8.
+As clear as these statements appear, respondents dismiss them as general statements . . . directed to other issues. [77] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution. Congress was first confronted with the issue in 1807, [78] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned: The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules . . . . 17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed: The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded. Id., at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the fundamental principle in a free government, id., at 873, that restrictions upon the people to choose their own representatives must be limited to those absolutely necessary for the safety of the society. Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States ž 414 (1907) (hereinafter cited as Hinds). There was no significant challenge to these principles for the next several decades. [79] They came under heavy attack, however, during the stress of civil war [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. [80] Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds žž 449-451. [81] This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support. Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U. Chi. L. Rev. 151, 157 (1967). [82] From that time until the present, congressional practice has been erratic; [83] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissents. [84] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, pp. 7-8 (1967). Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv. L. Rev. 673, 679 (1968). [85] That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U. S. 52, 175 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.
+Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, that the people should choose whom they please to govern them. 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' own post-Civil War exclusion cases, against vesting an improper & dangerous power in the Legislature. 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote. For these reasons, we have concluded that Art. I, ž 5, is at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the textual commitment formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.
+Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a potentially embarrassing confrontation between coordinate branches of the Federal Government. But, as our interpretation of Art. I, ž 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a lack of the respect due [a] co-ordinate [branch] of government, nor does it involve an initial policy determination of a kind clearly for non-judicial discretion. Baker v. Carr, 369 U. S. 186, at 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. [86] See United States v. Brown, 381 U. S. 437, 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 613-614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting). Nor are any of the other formulations of a political question inextricable from the case at bar. Baker v. Carr, supra, at 217. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the ConstitutionÔÇöa determination for which clearly there are judicially . . . manageable standards. Finally, a judicial resolution of petitioners' claim will not result in multifarious pronouncements by various departments on one question. For, as we noted in Baker v. Carr, supra, at 211, it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.",Political Question Doctrine.
+482,107969,3,1,"Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e. g., Coleman v. Miller, 307 U. S. 433 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (1918). In Baker v. Carr, supra , we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 369 U. S., at 217. Respondents' first contention is that this case presents a political question because under Art. I, ž 5, there has been a textually demonstrable constitutional commitment to the House of the adjudicatory power to determine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member. [40] In order to determine whether there has been a textual commitment to a co-ordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, ž 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents maintain that the House has broad power under ž 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution. If examination of ž 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, [41] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are inextricable from the case at bar. [42] Baker v. Carr, supra, at 217. In other words, whether there is a textually demonstrable constitutional commitment of the issue to a co-ordinate political department of government and what is the scope of such commitment are questions we must resolve for the first time in this case. [43] For, as we pointed out in Baker v. Carr, supra , [d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. Id., at 211. In order to determine the scope of any textual commitment under Art. I, ž 5, we necessarily must determine the meaning of the phrase to be the Judge of the Qualifications of its own Members. Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, ž 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally understood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the qualifications expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish standing incapacities, which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House [44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.
+Since our rejection of respondents' interpretation of ž 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents. The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 that Alex. Nowell, being Prebendary [ i. e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House . . . . J. Tanner, Tudor Constitutional Documents: A. D. 1485-1603, p. 596 (2d ed. 1930). This decision, however, was consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. [45] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142-143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. [46] See 1 W. Blackstone's Commentaries . Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedeÔÇöand we agreeÔÇöthat if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, ž 5. The earliest colonial exclusions also fail to support respondents' theory. [47] Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. [48] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled, [49] there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. [50] Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to foraging the Troops, 17 H. C. Jour. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved [t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is, incapable of being elected a Member to serve in this present Parliament . . . . Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. [51] Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. The theory seems to have been that expulsion lasted as long as the parliament . . . . Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries . Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i. e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). [52] Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled. Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th centuryÔÇö the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as  `the tools of despotism and corruption.'  R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. [53] Prior to Wilkes' trial, the House of Commons expelled him for publishing a false, scandalous, and seditious libel. 15 Parl. Hist. Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956). Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament declared him ineligible for membership and ordered that he be expelled this House. 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. [54] Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were subversive of the rights of the whole body of electors of this kingdom. 22 Parl. Hist. Eng. 1411 (1782). With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that the law of the land had regulated the qualifications of members to serve in parliament and those qualifications were not occasional but fixed. 16 Parl. Hist. Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled, [55] it appears that the House of Commons also repudiated any control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications. T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. [56] The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly [57] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. [58] In the course of its report, the Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they reflected dishonor on none but the authors of these violences. Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825). Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes [59] and his pursuit of the right to be seated in Parliament became a cause cÚlebre for the colonists. [T]he cry of `Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes's public career in the colonial press . . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour. 11 Gipson, supra, at 222. [60] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.
+Relying heavily on Charles Warren's analysis [61] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct. The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause  `requiring certain qualifications of landed property & citizenship'  and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions. Id., at 123. [62] Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to landed property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116-117. The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, ž 2. Id., at 213. [63] On August 10, the Convention considered the Committee of Detail's proposal that the Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient. Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. . . . It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction. Id., at 249-250. [64] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. [65] In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the indisputable right [of the people] to return whom they thought proper [66] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and dangerous because it would be much more liable to abuse. Id., at 250. Gouverneur Morris then moved to strike with regard to property from the Committee's proposal. His intention was to leave the Legislature entirely at large. Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body. Ibid. [67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties. Ibid. [68] Shortly thereafter, the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be the judge of the . . . qualifications of its own members. Id., at 254. One other decision made the same day is very important to determining the meaning of Art. I, ž 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum: and in emergencies [one] faction might be dangerously abused. Id., at 254. He therefore moved that with the concurrence of two-thirds be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, ž 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was too important to be exercised by a bare majority, while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. [69] Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, ž 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read: Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Id., at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the deliberations of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the standing incapacities for membership in the House of Commons. See 1 W. Blackstone's Commentaries -176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, [70] had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. [71] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. [72] Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only to revise the stile of and arrange the articles which had been agreed to . . . . 2 Farrand 553. [T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. [73] Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of ž 5. For example, they emphasize Hamilton's reply to the antifederalist charge that the new Constitution favored the wealthy and well-born: The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.  The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.) Madison had expressed similar views in an earlier essay, [74] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue. Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, ž 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to confer on the rich and well-born, all honours. Brutus No. IV, N. Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. [75] The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: [T]he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed. 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). [76] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, ž 2, cl. 2, as it respects the qualifications of the elected: It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state. 3 Elliot's Debates 8.
+As clear as these statements appear, respondents dismiss them as general statements . . . directed to other issues. [77] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution. Congress was first confronted with the issue in 1807, [78] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned: The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules . . . . 17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed: The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded. Id., at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the fundamental principle in a free government, id., at 873, that restrictions upon the people to choose their own representatives must be limited to those absolutely necessary for the safety of the society. Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States ž 414 (1907) (hereinafter cited as Hinds). There was no significant challenge to these principles for the next several decades. [79] They came under heavy attack, however, during the stress of civil war [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. [80] Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds žž 449-451. [81] This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support. Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U. Chi. L. Rev. 151, 157 (1967). [82] From that time until the present, congressional practice has been erratic; [83] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissents. [84] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, pp. 7-8 (1967). Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv. L. Rev. 673, 679 (1968). [85] That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U. S. 52, 175 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.
+Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, that the people should choose whom they please to govern them. 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' own post-Civil War exclusion cases, against vesting an improper & dangerous power in the Legislature. 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote. For these reasons, we have concluded that Art. I, ž 5, is at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the textual commitment formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.",Textually Demonstrable Constitutional Commitment.
+483,107969,4,1,"Since our rejection of respondents' interpretation of ž 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents. The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 that Alex. Nowell, being Prebendary [ i. e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House . . . . J. Tanner, Tudor Constitutional Documents: A. D. 1485-1603, p. 596 (2d ed. 1930). This decision, however, was consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. [45] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142-143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. [46] See 1 W. Blackstone's Commentaries . Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedeÔÇöand we agreeÔÇöthat if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, ž 5. The earliest colonial exclusions also fail to support respondents' theory. [47] Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. [48] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled, [49] there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. [50] Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to foraging the Troops, 17 H. C. Jour. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved [t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is, incapable of being elected a Member to serve in this present Parliament . . . . Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. [51] Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. The theory seems to have been that expulsion lasted as long as the parliament . . . . Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries . Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i. e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). [52] Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled. Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th centuryÔÇö the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as  `the tools of despotism and corruption.'  R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. [53] Prior to Wilkes' trial, the House of Commons expelled him for publishing a false, scandalous, and seditious libel. 15 Parl. Hist. Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956). Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament declared him ineligible for membership and ordered that he be expelled this House. 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. [54] Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were subversive of the rights of the whole body of electors of this kingdom. 22 Parl. Hist. Eng. 1411 (1782). With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that the law of the land had regulated the qualifications of members to serve in parliament and those qualifications were not occasional but fixed. 16 Parl. Hist. Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled, [55] it appears that the House of Commons also repudiated any control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications. T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. [56] The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly [57] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. [58] In the course of its report, the Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they reflected dishonor on none but the authors of these violences. Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825). Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes [59] and his pursuit of the right to be seated in Parliament became a cause cÚlebre for the colonists. [T]he cry of `Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes's public career in the colonial press . . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour. 11 Gipson, supra, at 222. [60] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.",The Pre-Convention Precedents.
+484,107969,4,2,"Relying heavily on Charles Warren's analysis [61] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct. The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause  `requiring certain qualifications of landed property & citizenship'  and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions. Id., at 123. [62] Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to landed property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116-117. The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, ž 2. Id., at 213. [63] On August 10, the Convention considered the Committee of Detail's proposal that the Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient. Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. . . . It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction. Id., at 249-250. [64] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. [65] In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the indisputable right [of the people] to return whom they thought proper [66] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and dangerous because it would be much more liable to abuse. Id., at 250. Gouverneur Morris then moved to strike with regard to property from the Committee's proposal. His intention was to leave the Legislature entirely at large. Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body. Ibid. [67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties. Ibid. [68] Shortly thereafter, the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be the judge of the . . . qualifications of its own members. Id., at 254. One other decision made the same day is very important to determining the meaning of Art. I, ž 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum: and in emergencies [one] faction might be dangerously abused. Id., at 254. He therefore moved that with the concurrence of two-thirds be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, ž 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was too important to be exercised by a bare majority, while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. [69] Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, ž 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read: Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen. Id., at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the deliberations of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the standing incapacities for membership in the House of Commons. See 1 W. Blackstone's Commentaries -176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, [70] had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. [71] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. [72] Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only to revise the stile of and arrange the articles which had been agreed to . . . . 2 Farrand 553. [T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. [73] Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of ž 5. For example, they emphasize Hamilton's reply to the antifederalist charge that the new Constitution favored the wealthy and well-born: The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.  The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.) Madison had expressed similar views in an earlier essay, [74] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue. Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, ž 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to confer on the rich and well-born, all honours. Brutus No. IV, N. Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. [75] The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: [T]he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed. 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). [76] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, ž 2, cl. 2, as it respects the qualifications of the elected: It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state. 3 Elliot's Debates 8.",Convention Debates.
+485,107969,4,3,"As clear as these statements appear, respondents dismiss them as general statements . . . directed to other issues. [77] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution. Congress was first confronted with the issue in 1807, [78] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned: The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules . . . . 17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed: The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded. Id., at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the fundamental principle in a free government, id., at 873, that restrictions upon the people to choose their own representatives must be limited to those absolutely necessary for the safety of the society. Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States ž 414 (1907) (hereinafter cited as Hinds). There was no significant challenge to these principles for the next several decades. [79] They came under heavy attack, however, during the stress of civil war [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. [80] Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds žž 449-451. [81] This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support. Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U. Chi. L. Rev. 151, 157 (1967). [82] From that time until the present, congressional practice has been erratic; [83] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissents. [84] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H. R. Doc. No. 529, 89th Cong., 2d Sess., ž 12, pp. 7-8 (1967). Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv. L. Rev. 673, 679 (1968). [85] That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U. S. 52, 175 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.",Post-Ratification.
+486,107969,3,2,"Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a potentially embarrassing confrontation between coordinate branches of the Federal Government. But, as our interpretation of Art. I, ž 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a lack of the respect due [a] co-ordinate [branch] of government, nor does it involve an initial policy determination of a kind clearly for non-judicial discretion. Baker v. Carr, 369 U. S. 186, at 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. [86] See United States v. Brown, 381 U. S. 437, 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 613-614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U. S. 52, 293 (1926) (Brandeis, J., dissenting). Nor are any of the other formulations of a political question inextricable from the case at bar. Baker v. Carr, supra, at 217. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the ConstitutionÔÇöa determination for which clearly there are judicially . . . manageable standards. Finally, a judicial resolution of petitioners' claim will not result in multifarious pronouncements by various departments on one question. For, as we noted in Baker v. Carr, supra, at 211, it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.",Other Considerations.
+487,112480,1,2,"The Special Master's two reports concern, as he listed them, (1) a small unnamed island upstream, or west, of Pennyworth Island, (2) an unnamed island east of Pennyworth, referred to as Tidegate, (3) the Barnwell Islands, that is, Rabbit Island, Hog Island, Long Island, and Barnwell No. 3, (4) Southeastern Denwill, (5) Jones Island, (6) Horseshoe Shoal and Oyster Bed Island, (7) the mouth of the river, and (8) the lateral seaward boundary. The Special Master himself, [f]or the convenience of the Court and counsel, described the major legal issues covered by his First Report in this way: 1. Did the Treaty of 1787, in reserving all islands in the Savannah River to Georgia, intend to include not only the then existing islands, but also all islands thereafter emerging by natural processes on the South Carolina side of the river? If the answer is in the affirmative, how can the 1922 decision of this Court be reconciled? 2. Is the Special Master correct in determining that the right-angle principle should be invoked by the demarcator in drawing the boundary line around islands on the South Carolina side of the `thread' of the Savannah River, because of the `special circumstances' existing by reason of the preclusive effect of the 1922 Supreme Court decision as it interpreted the Treaty of 1787? 3. Has the Special Master correctly ruled that Rabbit Island accreted to the State of South Carolina, and whether the `Island Rule' is applicable? 4. Has the Special Master correctly decided that Hog Island and Long Island have been acquired by the State of South Carolina under the doctrine of prescription and acquiescence? The Special Master notes that, even though Hog Island (in existence in 1787) was acquired by South Carolina under the doctrine of prescription and acquiescence, there remained at that time a creek separating Hog Island from the mainland and it was not until the spoilage had been dumped by avulsive processes that Hog Island became a part of the South Carolina mainland. 5. Has the Special Master correctly ruled that the area known as Southeastern Denwill, if it presently encroaches on the southern side of the mid-point of the Savannah River as it existed in 1787, now belongs to Georgia? 6. Has the Special Master correctly ruled that Jones Island, at all pertinent times, was in the State of South Carolina? 7. Did the Special Master err in diverting from the doctrine of medium filum acquae as established by the 1922 decision of this Court, in proceeding eastwardly after leaving the southern tip of Turtle Island? 1 Rep. 112-113. Georgia's exceptions to both reports are directed to the Special Master's recommendations concerning (a) the Barnwell Islands (other than Rabbit Island, as to which Georgia does not now except), (b) Oyster Bed Island and the mouth of the Savannah River, (c) the use of a right-angle line to connect the boundary in stream around an island in the Savannah River with the boundary in the mainstream of the river, see Ga. Exceptions ii, (d) the Master's ruling that islands of natural formation emerging after the Treaty of Beaufort are not in Georgia if they emerged on the South Carolina side of the river, ibid., and (e) the Master's use of the navigation channel, rather than the geographic middle of the mouth of the Savannah River, as the starting point for his delineation of the lateral seaward boundary. Georgia's exceptions, so far as the First Report is concerned, thus are directed only to the first, second, fourth, and seventh of the issues listed by the Master. Some of the claims Georgia pressed before the Master, e. g., the one relating to Jones Island, are not presented for review here; we treat those claims as now abandoned. South Carolina takes exception to the Master's recommendations concerning (a) the lateral seaward boundary, (b) two narrow strips of land well downstream from the City of Savannah, (c) the downstream area known as Horseshoe Shoal, and (d) the line which resulted from the placement of Horseshoe Shoal in Georgia. See S. C. Exceptions 2. So far as the First Report is concerned, these exceptions thus are directed only to the first, fifth, and seventh of the issues listed by the Master. Before we consider these several exceptions specifically, we note that Georgia's reaction to the First Report is straightforward. It asserts that under the 1787 Treaty all islands in the Savannah River are in Georgia; that, despite this treaty provision, the Master would place certain islands in South Carolina; and that his First Report reflects his fundamental dissatisfaction with the boundary line as established by the framers of the Treaty of Beaufort and as construed by this Court in 1922. Ga. Exceptions 7. This has led the Master to diverge, at virtually every opportunity, from the boundary which has been established since 1787, in order to place his recommended boundary in or near the mainstream or the navigation channel of the river. Id., at 8. South Carolina, of course, disavows this characterization of the Special Master's decision. We turn to the exceptions in an order we select.",The Special Master's Reports and the Exceptions
+488,112480,1,3,"These islands were four in number and were named by the Barnwell family, in downstream order, Rabbit Island, Hog Island (referred to as Barnwell Island on some older United States Coast Survey maps), Long Island (referred to as Barnwell Island No. 2 on some maps), and Barnwell Island No. 3 (actually the fourth island and not present when the family named the others). As has been noted, Georgia takes no exception to the Special Master's recommendation that Rabbit Island, although in the Savannah River in 1787, now be adjudged to be in South Carolina. This leaves us with Hog Island, Long Island, and Barnwell Island No. 3. Georgia states that the Barnwell Islands remained as islands in the Savannah River and discernible as such well into the 20th century, when, because of the activity of the United States Army Corps of Engineers, they became affixed to the South Carolina shore. Ga. Exceptions 13. South Carolina opines that the Barnwell Islands area is the most valuable land in the present dispute. It consists of at least 450 acres of high ground only a short distance downstream from the city of Savannah. It is clearly capable of future economic development. Response for South Carolina 1-2. Georgia's argument is essentially this: Long acquiescence in the practical location of an interstate boundary, and possession in accordance therewith, often has been used as an aid in resolving boundary disputes. See, e. g., Rhode Island v. Massachusetts, 4 How. 591, 638-639 (1846); Louisiana v. Mississippi, 202 U. S. 1, 53 (1906). Possession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence. Virginia v. Tennessee, 148 U. S. 503, 524 (1893). The duration of any purported dominion by South Carolina was judicially terminated by the above-cited Fifth Circuit decision in 1955. In line with that decision, and at all times since, Georgia has exercised dominion, sovereignty, and ownership of the Barnwell Islands. The Corps of Engineers has possessed and occupied Barnwell pursuant to a deed granted by Georgia for a spoilage easement. The doctrine of prescription and acquiescence may not be used aggressively to acquire territory; it may be used only to confirm the current status. In any event, proof adduced by South Carolina falls short of what is required to change the boundary solemnly accepted by the two States in 1787. Georgia further maintains that the State asserting the claim must make a showing of acquiescence by the neighboring State. New Jersey v. Delaware, 291 U. S. 361, 376, 377 (1934). Inaction, in and of itself, is of no great importance; what is legally significant is silence in the face of circumstances that warrant a response. Here, it is said, there is little evidence either of prescription by South Carolina or of actual or constructive notice to Georgia sufficient to imply acquiescence by Georgia. Except for the activity by the Corps of Engineers, the islands received scant attention from anyone except members of the Barnwell family. And, apart from some rice planting, there is little evidence of activity on the islands other than illegal whiskey production and the raising of hogs fed with the mash. The fact that moonshining could be carried on successfully shows how little attention was paid to the islands by Georgia authorities and the public generally. Except for the placement of a battery on the islands by Confederate forces during the War Between the States, there never was any resident on the islands and no schools, roads, or other public improvements. Georgia acknowledges two grants by South Carolina, one in 1795 and the other in 1813. The grants and accompanying plats, however, identify the property only as islands. These, says Georgia, were invalid because the 1787 Treaty reserved all islands in the river to Georgia. Thus, South Carolina cannot build its case on those grants. To be sure, there were 1868 deeds describing the property as in South Carolina, but these were intrafamily conveyances by the Barnwells and, in any event, provided no notice to anyone until they were recorded in 1930. There also were a marriage settlement in 1832 and a mortgage in 1871 but these, too, were intrafamily transactions. Anyway, their descriptions were insufficient to constitute notice of claim by South Carolina. The same is true of a deed in 1896 whereby the Barnwell brothers conveyed their interests in the islands and other family property to their sisters. A sheriff's deed in 1940 was insufficient to convey title, because of inadequate description of the property, and did not constitute notice to Georgia of any South Carolina claim of jurisdiction. The same is true of a 1942 deed from the Forfeited Land Commission of South Carolina to E. B. Pinckney. There were taxes paid to Beaufort County, S. C., by the Barnwell family and later by Pinckney, but the tax records contain no information identifying the property, and even after 1930 there was no correlation between the acreage reported for taxes and the acreage conveyed by the deeds. The claim of South Carolina prescription and Georgia acquiescence is contradicted by considerable evidence that Georgia and United States officials understood the islands to be in Georgia. Ga. Exceptions 34. There was a Georgia grant in 1760. In 1825, 1830, and 1831, taxes were paid to Chatham County, Ga. Many maps show the Barnwell Islands (other than Rabbit) to be on the Georgia side of the boundary line between the two States. Thus, the short duration of actual possession, the limited South Carolina official Acts, and the paucity of published or recorded documents referring to the islands as in South Carolina fall far short, Georgia claims, of establishing the open and continuous possession required to confirm a boundary by prescription. This is especially so since the islands remained as islands in the river until well into the 20th century, and since South Carolina continued to recognize officially the Treaty of Beaufort with its provision that all islands in the river are in Georgia. This is not a situation where Georgia can be held to have acquiesced. South Carolina, in its turn, first takes the position that the 1955 Fifth Circuit case has no effect whatsoever, directly or indirectly, on the present litigation. South Carolina was not a party in that case, and the case did not fix the boundary between the States. It further argues that Georgia asserted no act of dominion or control over the Barnwell Islands from 1787 until the 1950's, and acquiesced in South Carolina's jurisdiction through long inaction in the face of the latter's continuing and obvious exercise of dominion since 1795. With all this before us, and recognizing that each side advances some facts favorable to its position, we decide this issue in favor of South Carolina. We agree that the 1955 case in the Fifth Circuit cannot be regarded as fixing the boundary between the States. Although some South Carolinians were served with process, they were local officials and a person whose name appeared in the chain of title. South Carolina itself was never served and made no appearance. See Martin v. Wilks, 490 U. S. 755, 761-762 (1989). In any event, this Court, not a Court of Appeals, is the place where an interstate boundary dispute usually is to be resolved. See Durfee v. Duke, 375 U. S. 106, 115-116 (1963). The judgment in the 1955 case, therefore, does not control the issue of South Carolina's sovereignty. Nor do the incidental effects of that case transform the judgment into one that binds South Carolina. This conclusion needs no additional fortification, but, if it did, we would note that South Carolina twice, in 1955 and again in 1957, asked this Court to have the Barnwell area boundary question resolved. Georgia opposed those applications, and leave to file was denied each time by this Court. South Carolina attempted to get the issue here, but until the present litigation was instituted and allowed to proceed, this aspect of the boundary issue was not before this Court. [4] We need not here repeat in detail the extensive record evidence and the tax and conveyancing documents relied upon by the Special Master in reaching his conclusion. It suffices to say that the entire area in the late 18th and early 19th centuries was low marshy ground. The islands were separated from Georgia by the wide and deep waters of the Savannah River, but were separated from South Carolina only by streams so shallow that they were described as sometimes dry. Record, S. C. Exh. B-8. See Handly's Lessee v. Anthony, 5 Wheat. 374, 381 (1820). The South Carolina grant in 1813, the almost-uniform taxation of the property, the South Carolina seizure and subsequent sale for unpaid taxes, policing and prosecutorial activities by South Carolina authorities, patrolling by South Carolina wildlife officers, and other factors, all support the Special Master's conclusion that, in any event, South Carolina established sovereignty by prescription and acquiescence. Georgia seeks to avoid the effect of this evidence on the ground that it had no reasonable notice of South Carolina's actions and therefore cannot be said to have acquiesced in them. But inaction alone may constitute acquiescence when it continues for a sufficiently long period. See Rhode Island v. Massachusetts, 15 Pet. 233, 274 (1841); Vermont v. New Hampshire, 289 U. S. 593; 616 (1933). And there is more than mere inaction on the part of Georgia. The record contains substantial evidence of events that put Georgia on notice of South Carolina's exercise of sovereignty. Parts of the islands were cultivated, as the Master found, for more than 30 years prior to 1880. This was readily discernible, for rice cultivation requires dikes, and the presence of dikes on the islands appeared on maps of the area as early as 1855. Ga. Exh. 156, App. B to 1 Rep. Georgia was chargeable with knowledge that the Treaty of Beaufort placed all the Savannah River islands in Georgia. Yet Georgia authorities could have discovered there was no record of taxation or other sovereign action over these lands by Georgia except, possibly, for three isolated instances in the early part of the 19th century. Some documents recorded in Georgia, because they also involved Georgia property, describe the islands as in South Carolina. There is evidence, too, that Savannah residents were aware of cultivation on the islands. It is conclusively settled in England, that open and notorious adverse possession is evidence of notice; not of the adverse holding only, but of the title under which the possession is held. . . . And in the United States we deem it to be equally settled. Landes v. Brant, 10 How. 348, 375 (1851). South Carolina must prevail as to the Barnwell Islands issue, and we overrule Georgia's exception with respect thereto.",The Barnwell Islands
+489,112480,1,4,"The unnamed island west of Pennyworth, the island east of Pennyworth called Tidegate, and Oyster Bed Island all emerged after the Treaty of Beaufort was signed in 1787. [5] Georgia claims these islands and argues that, by the terms of the Treaty, the boundary in the vicinity of each island runs between that island and the South Carolina shore. The first Article of the Treaty, see n. 1, supra, provides: The most northern branch or stream of the river Savannah from the sea or mouth of such stream to the fork or confluence of the rivers now called Tugoloo and Keowee, . . . reserving all the islands in the said rivers Savannah and Tugoloo to Georgia . . . shall forever hereafter form the separation limit and boundary between the States of South Carolina and Georgia. This Court considered this provision in 1922 in Georgia v. South Carolina, 257 U. S. 516. Both States agreed that the presence of an island on the South Carolina side of the river altered the boundary so as to bring the island within the jurisdiction of Georgia. In its decision on the merits, the Court resolved two contested issues relevant here. First it held, ruling in Georgia's favor, that where, in any of the boundary rivers here involved, there are no islands the location of the boundary line between the two States is the thread of the river — the middle line of the stream — regardless of the channel of navigation . . . . Id., at 521. It rejected South Carolina's alternative position, which would have placed the boundary at the low water mark on the Georgia side of the river: The express reservation of the islands to Georgia and the placing of the boundary line in the most northerly branch of the Savannah and then of the Tugaloo river up to the `northern boundary of South Carolina,' makes it clear that where there are islands in the river the line must be between them and the South Carolina shore, for otherwise the Georgia islands would be within the State of South Carolina. Id., at 520-521. Because the northern branch or stream clause by definition would bring the boundary north of the low water mark on the Georgia side, the Court thought it unlikely that the parties intended the low water mark to be the benchmark where no islands were present. The more logical reading of the Treaty was that each State would take to the middle of the stream. Id., at 521. Second, the Court held that, where there was an island in the river, the boundary would be midway between the island and the South Carolina shore. This conclusion followed from the determination that the northern branch or stream of the river, where an island was present in the northern half of the river, would be the branch or stream that ran between the island and the northern shore, and from the Court's first holding that the midpoint of the relevant body of water was the appropriate place to draw the boundary. Two principles established by the 1922 decision are pertinent here. First, although it is by no means self-evident on the face of the Treaty that the northern branch or stream refers to the stream that each island — however small and however close to the northern shore — creates between itself and the shore to the north of it, that was the construction of the Treaty agreed upon by the parties in 1922 and adopted by this Court. Apparently it was thought that a contrary rule, whereby the northern branch or stream referred only to a branch or stream that made a major departure from the main body of the river, would create an unmanageable boundary, because then the Treaty's additional reservation of the islands to Georgia would create pockets of Georgia territory within South Carolina wherever islands existed on the South Carolina side of the northern branch or stream defined in this larger sense. Second, under the principle that each island in the river created a new northern branch or stream, each island was not only reserved to Georgia under the reservation clause of Article I, but also formed a point of reference, by which the boundary would be drawn. The Court, in its 1922 decision, did not expressly determine the treatment to be given islands that emerged after the Treaty of Beaufort was signed, so that decision is not controlling on this issue. The Special Master found, and South Carolina agrees, that the better reading of the Treaty in light of the 1922 decision is that the clause reserving all islands. . . to Georgia refers only to islands in existence in 1787 and that the most northern branch or stream, as applied to a branch or stream going to the north of an island, similarly refers only to islands in existence when the Treaty was signed. The Treaty's establishment of the boundary forever hereafter would thus be unaffected by after-emerging islands. Georgia argues that the provision of Article I reserving all islands . . . to Georgia includes such after-emerging islands and that, accordingly, the reference in the Treaty to the most northern branch or stream of the river Savannah means the stream flowing to the north of any island currently in the river. We think South Carolina and the Special Master have the better argument. Georgia's solution, whereby each emerging island not only is newly reserv[ed] . . . to Georgia but also creates a new northern branch or stream by which the boundary between the States must be drawn, would create a regime of continually shifting jurisdiction. Even the smallest emerging island, no matter how near the South Carolina shore, would cause the entire boundary between the States to shift northward, depriving South Carolina not only of the land that constitutes the island but also any riverbed between the island and the center line that previously formed the boundary. We doubt that the parties, in drafting the Treaty, meant to create a boundary that shifted so radically each time a new island emerged in the river. To the contrary, Article I of the Treaty purports to fix the boundary forever hereafter, a goal that would be frustrated were the boundary to jump northward each time a new island appeared on the South Carolina side of the river. A construction of the Treaty that avoids sudden changes in the boundary would be more consistent with this language, and also comports with the principles of simplicity and finality that animated the Court's reading of the Treaty in 1922, and with the respect for settled expectations that generally attends the drawing of interstate boundaries. Cf. Virginia v. Tennessee, 148 U. S. 503, 522-525 (1893). We recognize, of course, that the normal rules relating to accretion and erosion may cause the boundary line between the States to shift over time, so that the line will not necessarily be fixed as of any particular point. But it is one thing to say that the parties meant that gradual shifts in the path of the river would shift the boundary gradually, to the extent of the accretion; this rule is consistent with settled expectations and with the parties' interest in maintaining their riparian rights. See Nebraska v. Iowa, 143 U. S. 359 (1892). It is quite another thing to infer that the parties meant that each new island, however formed, would alter the boundary line to a degree that could be dramatically out of proportion to the physical change brought about by the formation of the island itself. Finally, Georgia points to the statement in the 1922 decree that all islands formed by nature in the Chattooga River, like the islands in the Savannah and the Tugaloo, were reserved by the Treaty to Georgia. Georgia v. South Carolina, 259 U. S., at 572. This reference, Georgia contends, necessarily implies that the reservation clause in the Treaty includes after-emerging islands, since man-made islands did not exist in the river in 1787. There is no indication, however, that the Court knew of this fact in 1922. No issue of after-emerging islands was even before the Court, and the decree simply described the river as it then was. In light of the foregoing, we agree with the Special Master that islands that emerged after 1787 do not affect the boundary line between the two States. Georgia's exception with respect to that issue is overruled.",Islands Emerging After the Treaty of Beaufort
+490,112480,1,5,"Oyster Bed Island, which was not in existence in 1787 and which emerged in the 1870's or 1880's, is one of the most easterly or downstream islands in the Savannah River. It lies north of Cockspur Island and southeast of Turtle Island. Both Turtle Island and its westerly neighbor, Jones Island, are now conceded by the parties to be in South Carolina. Georgia accepts the Special Master's location of the boundary between the two States immediately upstream and west of Oyster Bed as midway between Jones Island and certain Georgia islands in the river. Ga. Exceptions 38-39. Georgia complains, however, that west of Oyster Bed, opposite the southern point of Turtle Island, the Special Master's recommended boundary departs from the middle of the stream and, going east, makes an abrupt jog [to the southeast] to reach the navigation channel of the river. Id., at 38. The result is that Oyster Bed Island is placed in South Carolina, a consequence, Georgia says, that is contrary to this Court's 1922 ruling in Georgia v. South Carolina, supra . Georgia fortifies this argument by asserting that in the 1870's a major navigation channel of the river flowed north of Oyster Bed, but that the Corps of Engineers blocked this northern channel by a training wall and later by deposit of hydraulic fill in order to force the water into the channel south of Oyster Bed. It stresses that only Georgia has exercised dominion and control over Oyster Bed and, indeed, ceded it to the United States in 1820. It seems to us that this portion of the controversy between the two States centers on the determination of the mouth of the Savannah River and encounters no inconsistency with what this Court said in Georgia v. South Carolina. The Savannah River's mouth was not defined in the Treaty of Beaufort. Georgia argues that the mouth, as referred to in the Treaty, must be located in the vicinity of Tybee Island, rather than somewhat upstream. Tybee lies south and east of Cockspur. We accept that submission and regard Tybee as forming the south side of the river's mouth. Usually, there are two opposing headlands marking and constituting the mouth of a river. See Knight v. United States Land Assn., 142 U. S. 161, 207 (1891) (Field, J., concurring). This is the headland-to-headland principle used in defining the limits of bays and rivers. 2 A. Shalowitz, Shore and Sea Boundaries § 141, p. 367 (1964). It is not always that simple, however. Sometimes the mouth of a river is difficult to delineate. See S. Jones, Boundary-Making: A Handbook 130 (1945). Because of the absence of a reasonably close headland to the north, Georgia is driven to argue that the boundary at the mouth of the Savannah River must be the geographical middle between Tybee and the closest points of land in South Carolina, that is, Daufuskie Island, lying north and northeastward of Turtle Island, and Hilton Head Island, almost six miles north of Tybee. We conclude that this is not a realistic determination of the Savannah River's mouth, and we agree with the Special Master in rejecting the argument. The difficulty lies in the fact that Tybee Island, the most seaward point of land on the southern side of the river, has no counterpart of high land on the northern side. The geographical feature taking the place of the customarily present opposing headland is, instead, a shoal, long recognized as confining the river. It is true, of course, that the Corps of Engineers affected the flow by its training wall and hydraulic fill. But the shoal which directed that flow has been recognized for many years. Furthermore, Hilton Head Island and Daufuskie Island are so far distant that it is impossible to say that they even touch the Savannah River. Given this somewhat uncommon type of river mouth, the Special Master's conclusion that the northern side of the Savannah's mouth is the underwater shoal is not unreasonable. To accept Georgia's proposition here would result in having Georgia waters lie directly seaward of South Carolina's coast and waters. Georgia's exception with respect to Oyster Bed Island and the mouth of the Savannah River is overruled.",Oyster Bed Island and the Mouth of the River
+491,112480,1,6,"This Court in its 1922 decision in Georgia v. South Carolina ruled that (1) at any point where there is no island in the Savannah River, the boundary is on the water midway between the main banks of the river when the water is at ordinary stage, and (2) where there is an island the boundary is midway between the island bank and the South Carolina shore when the water is at ordinary stage. 257 U. S., at 523. This seemingly simple and routine resolution, however, results in a problem, not decided in the 1922 case, when the midline of the stream encounters an island and must move northward to qualify as the line midway between the island bank and the South Carolina shore. Where and how does this boundary movement to the north take place? Is it when the midline touches the island, if it does touch it at all, and does it then move at right angles until it reaches a point midway between the island bank and the South Carolina shore? Does it then proceed accordingly until the island is bypassed and the midline of the stream is to be met and followed, and is a right angle to be applied there as well? A line midway between the banks of a river, known as the medium filum acquae, Shalowitz, supra, at 374, is easily established, for every point of the midline is equidistant from the nearest points on the opposite shores. See New Hampshire v. Maine, 426 U. S. 363, 371 (1976) (WHITE, J., dissenting). But, as noted, the ease of ascertainment disappears when an island and the Treaty of Beaufort are encountered. Such is the case here, particularly with respect to the Special Master's treatment of the line around Pennyworth Island north of the city of Savannah. This issue clearly was not determined, and perhaps was not even contemplated, by the framers of the Treaty. What the Special Master did in the absence of authority—and we have found none — was to use the line midway between an island and the South Carolina shore (as the parties agree is proper) until the island ended and ceased to lie opposite the shore. There the boundary was to revert to the middle of the river. The Master then used a right-angle line connecting the island-to-bank center line with the bank-to-bank center line by the shortest distance. South Carolina urges that this is the most reasonable approach to this unique problem and that the Master's recommended device should be adopted. Georgia's position, also apparently unsupported by decisional authority, but see S. Boggs, International Boundaries: A Study of Boundary Functions and Problems 183 (1966), is that the use of the right angle is simply wrong. Instead, Georgia argues, that, with an island's presence, the boundary is to be marked by the use of a point which is tri-equidistant from the South Carolina shore, the island shore, and the Georgia shore. The boundary then would pass through this point and otherwise be equidistant from the South Carolina shore and the Georgia shore, or island, as the case may be. See Ga. Exceptions 50-51. We think that Georgia has the better of this argument. Its submission, it seems to us, is sensible, is less artificial than other lines, is fair to both States, and is generally in line with what was said in Georgia v. South Carolina. Georgia's exception to the right-angle principle used by the Special Master is therefore sustained, and Georgia's approach, not that of the right angle, is to be utilized wherever this fact situation is encountered in the stretch of the Savannah River under consideration.",The Right-Angle Principle
+492,112480,1,7,"Elba Island is downstream from the city of Savannah and upstream from Jones and Oyster Bed Islands. Denwill is a plantation on the South Carolina side of the river; it is opposite Elba but extends eastward beyond that island. Horseshoe Shoal is slightly downstream from there. See App. D of 2 Rep. Prior to the performance of work in the area by the Army Corps of Engineers, the navigation channel north of Elba was a broad expanse which, in the Corps' estimation, was excessively wide. In the 1880's, the Corps undertook to improve the navigation channel by restricting the river's width. This was effected by the construction of a training wall north of Elba Island during 1891-1895, by sedimentation that took place, and by deposits of dredge material behind the wall. Land in the area of southeastern Denwill formed initially as marsh islands adjacent to the wall and then grew to be connected to the South Carolina shore. Similar changes took place at Horseshoe Shoal, an area that now connects Jones Island and Oyster Bed Island. The Special Master recommended that the additions to Denwill and Horseshoe Shoal be awarded to Georgia. South Carolina takes exception to this. Referring to App. D of 2 Rep., South Carolina asserts: Approximately 1 mile of riverfront land on the South Carolina side of the river would be placed in Georgia. S. C. Exceptions 6. It emphasizes that the additions to Denwill took more than 40 years to form, that is, between the time the first diversion wing-dam structures were built, and 1924 when the old bed appeared above water. Id., at 7. The training wall, two miles long, was permeable, and permitted sedimentation behind it before the dredging and filling occurred. South Carolina observes that the Special Master nowhere specifically states that the process in fact was avulsive, but it asserts, pointing to several references by the Master to avulsive procedures, that it is clear that he considered the process to be avulsive. Id., at 9. South Carolina also notes that all those activities worked to the benefit of the city of Savannah, and that Georgia's port was the only beneficiary of the dredging. Brief in Rebuttal for South Carolina 5. Georgia, in its turn, notes the Corps' relocation of the northern bank of the river at southeastern Denwill over a half mile south of its original location. See App. C of 1 Rep. It asserts that the land in dispute did not form as gradual accretion from the South Carolina shore toward the river but, instead, rose in the river immediately behind the training wall and was the result of the construction of the wall and the deposit of dredge spoil behind it. South Carolina's exception as to Horseshoe Shoal is like its Denwill exception. It asserts that, as was the case with Denwill, training works and dredging by the Corps led to sedimentation and filling. As a result, the Shoal is now a long isthmus of high ground connecting Jones Island and Oyster Bed Island. It was formed in the same way, and over a comparable period, as the additional land on Denwill. S. C. Exceptions 13-14. The major training work in this area, too, was between 1890 and 1894. Wing dams were placed and then hydraulic fill. But even before large-scale dredging and filling began, the area was close to becoming a dry elevation solely as a result of the 30 years of sedimentation caused by training works. Id., at 14-15. General rules concerning the formation of riparian land are well developed and are simply expressed and well accepted. When the bed is changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream. But if the stream leaves its old bed and forms a new one by the process known as avulsion, the result works no change of boundary. Arkansas v. Tennessee, 246 U. S. 158, 173 (1918). Sometimes, the problem is to distinguish between the two. Here we have a situation where interference in the river's flow was not caused by either of the adjoining States, but by the United States Army Corps of Engineers. It is generally held, of course, that one cannot extend one's own property into the water by landfilling or purposefully causing accretion. See, e. g., Seacoast Real Estate Co. v. American Timber Co., 92 N. J. Eq. 219, 221, 113 A. 489, 490 (1920). We conclude, not without some difficulty, that Georgia has the better of the argument as to these two areas. It is true, of course, that avulsive action ordinarily calls to mind something somewhat sudden or, at least, of short duration, whereas accretion has as its essence the gradual deposit of material over a period by action of water flow. This is so even though it may have been caused partly or wholly by placed obstructions. See County of St. Clair v. Lovingston, 23 Wall. 46 (1874). Some of the changes here were caused gradually by the deposit of sediment by river waters. Others were caused by the deposit of fill through the use of a hydraulic-pipeline dredge employed by the Corps pursuant to the paramount right of the United States Government to improve navigation. See South Carolina v. Georgia, 93 U. S. 4 (1876). The rapidity of some aspects of the dredging and other processes led the Special Master to conclude that the changes in the Savannah River were primarily avulsive in nature. Although the question is close, on balance, we think this particular record as to this particular river supports the recommendation made by the Master. We therefore overrule South Carolina's exceptions as to southeastern Denwill and Horseshoe Shoal.",Southeastern Denwill and Horseshoe Shoal
+493,112480,1,8,"Bird Island, as described by South Carolina, is now part of an elongated island several miles long, in the middle of the river across from Jones Island. S. C. Exceptions 16. It has merged with Long Island. See Apps. C and D of 2 Rep. South Carolina initially took exception to the Special Master's conclusion that a sliver of land on Bird Island was in Georgia rather than in South Carolina. The latter State's position was that, in line with its accretion argument with respect to Denwill and Horseshoe Shoal, the boundary for like reasons should run through part of Bird Island. S. C. Exceptions 17. The Special Master's Second Report, on Georgia's motion, clarified any confusion that may have existed with respect to Bird Island. His recommended boundary line is now carefully described as passing north of the island, so that Bird Island in its entirety would be in Georgia. See App. D of 2 Rep., modifying App. F of 1 Rep. And South Carolina responded by essentially agreeing. 2 Rep. 19. This serves to eliminate the dispute over the island, and South Carolina's exception, initially made, is overruled.",Addition to Bird Island
+494,112480,1,9,"Each side has noted an exception to the Special Master's recommendation concerning the lateral seaward boundary between the States. What the Master has done here begins with his resolution of the issue concerning the river's mouth, a recommendation we have approved in Part V hereof. He accepted, as do we, that Tybee Island is to be regarded as the headland for the south side of the mouth of the Savannah River, and that the long-existing shoal forms the north side of the mouth. A seemingly complicating factor is that the Georgia coast and the South Carolina coast, where they meet at the river, do not run at exactly the same angle from due north. While each extends southwest-northeast, Georgia's coast is roughly 20 degrees from north-south and South Carolina's roughly 47 degrees. Thus, lines drawn perpendicularly from each coast overlap off the coast, and overlap more as the distance from the shoreline increases. This wedge-shaped overlap is the primary focus of the two States' respective exceptions. The Master's recommended line continues down the river's mouth until it intersects a line, from Tybee Island's most northern point to Hilton Head Island's most southern point, where it then proceeds out to sea perpendicularly to that line. South Carolina claims that the described overlap is the only area reasonably in dispute, but that the Master's line runs at an angle about six degrees north of the most favorable line Georgia could expect to receive, i. e., a line perpendicular to Georgia's coast. Thus, says South Carolina, the Master's line is wholly outside the area of overlap. South Carolina urges that the area of overlap be split more or less equally. S. C. Exceptions 22. Georgia's exception relates only to the starting point of the proposed lateral seaward boundary. Reply Brief for Georgia 17. It submits that the geographic middle of the mouth of the Savannah River should be used as the starting point of the maritime boundary, ibid., but that if this argument fails, the boundary as recommended by the Master should be upheld. The Master observed that neither Georgia's Charter of 1732 nor the 1787 Treaty of Beaufort made any reference to the lateral seaward boundary between the States. 2 Rep. 1. He noted that in 1969 the States reached a tentative agreement upon a boundary projecting due east from the mouth of the river, but that this agreement was not ratified by Congress and never was effective. Id., at 2. The two States have entered into a stipulation, approved by the Solicitor General of the United States, whereby they agree that no interest of the United States is affected by this Court's ultimate determination as to the location of the lateral seaward boundary between the States. The Master accordingly concluded that the Federal Government was not a necessary party. Id., at 3. He then proceeded to apply principles of international law, citing Wisconsin v. Michigan, 295 U. S. 455 (1935), and Texas v. Louisiana, 426 U. S. 465 (1976). The Master reviewed the States' respective contentions. He noted that Georgia cited the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958 [1964] 15 U. S. T. 1607, T. I. A. S. No. 5639, and particularly the first paragraph of Article 12 thereof, id., at 1610, which recites that neither of two adjacent States is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines. The Baseline Committee, operating in the 1970s', drew its line between Hilton Head Island and Tybee Island. The Master noted that he had determined the mouth of the river to be only approximately a mile north of the southern end of the baseline at Tybee Island. Nevertheless, in drawing the lateral seaward boundary the Master felt controlled by international law. [T]herefore, it does not follow that the starting point of the lateral seaward boundary must merely be an extension of the land boundary between the states, although such a factor must be considered as highly persuasive. 2 Rep. 5. Georgia's claimed starting point for the lateral seaward boundary was at a point halfway between Hilton Head Island and Tybee Island, and thus about two miles north of where the land boundary met the baseline. The Special Master noted that South Carolina contended that the boundary line must start at the point where the inland boundary, if extended, intersected the baseline. This would result in the boundary's being delimited seaward in a southeasterly direction running substantially parallel to the channel providing the entrance to the river. The Master then turned to the equidistant principle referred to in Texas v. Louisiana, supra . He observed, however, that while the equidistant principle may be a slightly preferred method of delimitation, it does not reach the stature of a rule of law. 2 Rep. 16. Instead, it is the principles of equity which should guide the conclusion in each particular case. Ibid. The Special Master recommended that the lateral seaward boundary between the two States be along a line drawn at right angles to the baseline beginning at a point marked X on App. A to 2 Rep. until that line reached the outer limit of the territorial sea as that outer limit existed on December 27, 1988. [6] He felt that this was a proper utilization of equitable principles. 2 Rep. 18. He further recommended that Georgia and South Carolina be required to suitably mark the lateral seaward boundary in the water area at the joint expense of the two states. Ibid. We adopt the recommendation of the Special Master as to the lateral seaward boundary between South Carolina and Georgia. We conclude that it gives equitable balance and recoguition to the so-called equidistant principle and to the inland boundary between the two States, and does so with the least possible offense to any claimed parallel between offshore territory and the coast itself. The States' respective exceptions as to the lateral seaward boundary are overruled.",The Lateral Seaward Boundary
+495,112480,1,10,"
+2. Georgia's exception to the Special Master's use of the right-angle principle, discussed in Part VI hereof, is sustained. 3. Each other exception advanced by Georgia is overruled. 4. Each recommendation made by the Special Master in his two reports, and as to which no exception has been taken, is adopted (subject to the reservation expressed in n. 7, infra ). 5. Each recommendation made by the Special Master, and as to which an exception has been advanced but overruled, is adopted. [7] The parties are directed promptly to prepare an appropriate proposed decree in line with these conclusions. Because the Special Master has been discharged, see 493 U. S. 1053 (1990), the proposed decree shall be submitted directly to this Court for its review and consideration. The Court assumes that the parties will be able to agree upon the form of the decree. If they are unable to agree, each State shall submit to the Court its own formulation with any supportive comment deemed necessary. The Court will then draft the decree and enter it. No costs are allowed. The Court retains jurisdiction to entertain such further proceedings as from time to time may be necessary or advisable to effectuate the forthcoming decree and the rights of the respective parties. It is so ordered.",In summary:
+496,118310,1,2,"(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: . . . . . (3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties. 28 U. S. C. § 1442 (1994 ed. and Supp. III). [3] It is the general rule that an action may be removed from state court to federal court only if a federal district court would have original jurisdiction over the claim in suit. See 28 U. S. C. § 1441(a). To remove a case as one falling within federal-question jurisdiction, the federal question ordinarily must appear on the face of a properly pleaded complaint; an anticipated or actual federal defense generally does not qualify a case for removal. See Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). Suits against federal officers are exceptional in this regard. Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law. To qualify for removal, an officer of the federal courts must both raise a colorable federal defense, see Mesa v. California, 489 U. S. 121, 139 (1989), and establish that the suit is  for a[n] act under color of office, 28 U. S. C. § 1442(a)(3) (emphasis added). To satisfy the latter requirement, the officer must show a nexus, a `causal connection' between the charged conduct and asserted official authority. Willingham v. Morgan, 395 U. S. 402, 409 (1969) (quoting Maryland v. Soper (No. 1), 270 U. S. 9, 33 (1926)). In construing the colorable federal defense requirement, we have rejected a narrow, grudging interpretation of the statute, recognizing that one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court. 395 U. S., at 407. We therefore do not require the officer virtually to win his case before he can have it removed. Ibid. Here, the judges argued, and the Eleventh Circuit held, that Jefferson County's tax falls on the performance of federal judicial duties in Jefferson County and risk[s] interfering with the operation of the federal judiciary in violation of the intergovernmental tax immunity doctrine; that argument, although we ultimately reject it, see infra, at 435-443, presents a colorable federal defense. Jefferson County, 92 F. 3d, at 1572. There is no dispute on this point. See post, at 448 (Scalia, J., concurring in part and dissenting in part). We next consider whether the judges have shown that the county's tax collection suits are  for a[n] act under color of office. 28 U. S. C. § 1442(a)(3) (emphasis added). The essence of the judges' colorable defense is that Jefferson County's Ordinance expressly declares it unlawful for them to engage in [their] occupation without paying the tax, Ordinance No. 1120, § 2, and thus subjects them to an impermissible licensing scheme. The judges accordingly see Jefferson County's enforcement actions as suits for their having engage[d] in [their] occupation. The Solicitor General, in contrast, argues that there is no causal connection between the suits and the judges' official acts because [t]he tax . . . was imposed only upon [the judges] personally and not upon the United States or upon any instrumentality of the United States. Brief for United States as Amicus Curiae 20. To choose between those readings of the Ordinance is to decide the merits of this case. Just as requiring a clearly sustainable defense rather than a colorable defense would defeat the purpose of the removal statute, Willingham, 395 U. S., at 407, so would demanding an airtight case on the merits in order to show the required causal connection. Accordingly, we credit the judges' theory of the case for purposes of both elements of our jurisdictional inquiry and conclude that the judges have made an adequate threshold showing that the suit is for a[n] act under color of office. 28 U. S. C. § 1442(a)(3). Justice Scalia maintains that the county's lawsuit was not grandly for the judges' performance of their official duties, but narrowly for their having refused to pay the tax. The judges' resistance to payment of the tax, he states, was neither required by the responsibilities of their offices nor undertaken in the course of job performance. See post, at 447. The county's lawsuit, however, was not simply for a refusal; it was for payment of a tax. The county asserted that the judges had failed to comply with the Ordinance; read literally, as the judges urge and as we accept solely for purposes of this jurisdictional inquiry, that measure required the judges to pay a license fee before engag[ing] in [their] occupation. Ordinance No. 1120, § 2. The circumstances that gave rise to the tax liability, not just the taxpayers' refusal to pay, constitute the basis for the tax collection lawsuits at issue. See Willingham, 395 U. S., at 409 ( It is enough that [petitioners'] acts or [their] presence at the place in performance of [their] official duty constitute the basis . . .of the state prosecution. (internal quotation marks omitted)). Here, those circumstances encompass holding court in the county and receiving income for that activity. In this light, we are satisfied that the judges have shown the essential nexus between their activity under color of office and the county's demand, in the collection suits, for payment of the local tax.",The federal officer removal provision at issue states:
+497,118310,1,3,"The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U. S. C. § 1341. This statutory text is to be enforced according to its terms and should be interpreted to advance its purpose of confin[ing] federal-court intervention in state government. Arkansas v. Farm Credit Servs. of Central Ark., 520 U. S. 821, 826-827 (1997). By its terms, the Act bars anticipatory relief, suits to stop (enjoin, suspend or restrain) the collection of taxes. Recognizing that there is little practical difference between an injunction and anticipatory relief in the form of a declaratory judgment, the Court has held that declaratory relief falls within the Act's compass. California v. Grace Brethren Church, 457 U. S. 393, 408 (1982). But a suit to collect a tax is surely not brought to restrain state action, and therefore does not fit the Act's description of suits barred from federal district court adjudication. See Louisiana Land & Exploration Co. v. Pilot Petroleum Corp., 900 F. 2d 816, 818 (CA5 1990) (The Tax Injunction Act does not bar federal court jurisdiction [of a] suit . .. to collect a state tax.). Nevertheless, in Keleher v. New England Telephone & Telegraph Co., 947 F. 2d 547 (CA2 1991), the Court of Appeals concluded: [I]n removing the federal courts' power to `enjoin, suspend or restrain' state and local taxes, [Congress] necessarily intended for federal courts to abstain from hearing tax enforcement actions in which the validity of a state or local tax might reasonably be raised as a defense. Id., at 551. [4] We do not agree that the Act's purpose requires us to disregard the text formulation Congress adopted. Congress modeled the Tax Injunction Act, which passed in 1937, upon previously enacted federal statutes of similar import, measures that parallel state laws barring actions in State courts to enjoin the collection of State and county taxes. S. Rep. No. 1035, 75th Cong., 1st Sess., 1 (1937). The federal statute Congress had in plain view was an 1867 measure depriving courts of jurisdiction over suits brought for the purpose of restraining the assessment or collection of any federal tax. Act of Mar. 2, 1867, ch. 169, § 10, 14 Stat. 475, now codified at 26 U. S. C. § 7421(a) (1994 ed., Supp. III). The 1867 provision, of course, does not bar federal-court adjudication of suits initiated by the United States to collect federal taxes; it precludes only suits brought by taxpayers to restrain the United States from assessing or collecting such taxes. Similarly, the state laws to which Congress referred surely do not preclude the States from enforcing their taxes in court. The Tax Injunction Act was thus shaped by state and federal provisions barring anticipatory actions by taxpayers to stop the tax collector from initiating collection proceedings. It was not the design of these provisions to prohibit taxpayers from defending suits brought by a government to obtain collection of a tax. Congress, it appears, sought particularly to stop out-of-state corporations from using diversity jurisdiction to gain injunctive relief against a state tax in federal court, an advantage unavailable to in-state taxpayers denied anticipatory relief under state law. See S. Rep. No. 1035, supra, at 2. In sum, we hold that the Tax Injunction Act, as indicated by its terms and purpose, does not bar collection suits, nor does it prevent taxpayers from urging defenses in such suits that the tax for which collection is sought is invalid. [5]",The Tax Injunction Act provides:
+498,111858,1,2,"protect . . . participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. § 2, as set forth in 29 U. S. C. § 1001(b). ERISA comprehensively regulates, among other things, employee welfare benefit plans that, through the purchase of insurance or otherwise, provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. § 3(1), 29 U. S. C. § 1002(1). Congress capped off the massive undertaking of ERISA with three provisions relating to the pre-emptive effect of the federal legislation: Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . . § 514(a), as set forth in 29 U. S. C. § 1144(a) (pre-emption clause). Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities. § 514(b)(2)(A), as set forth in 29 U. S. C. § 1144(b)(2)(A) (saving clause). Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies. § 514(b)(2)(B), 29 U. S. C. § 1144(b) (2)(B) (deemer clause). To summarize the pure mechanics of the provisions quoted above: If a state law relate[s] to . . . employee benefit plan[s], it is pre-empted. § 514(a). The saving clause excepts from the pre-emption clause laws that regulat[e] insurance. § 514(b)(2)(A). The deemer clause makes clear that a state law that purport[s] to regulate insurance cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B). [T]he question whether a certain state action is preempted by federal law is one of congressional intent. ` The purpose of Congress is the ultimate touchstone. '  Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (1985), quoting Malone v. White Motor Corp., 435 U. S. 497, 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). We have observed in the past that the express pre-emption provisions of ERISA are deliberately expansive, and designed to establish pension plan regulation as exclusively a federal concern. Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 523 (1981). As we explained in Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 98 (1983): The bill that became ERISA originally contained a limited pre-emption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's pre-emptive scope was as broad as its language. See H. R. Conf. Rep. No. 93-1280, p. 383 (1974); S. Conf. Rep. No. 93-1090, p. 383 (1974). The House and Senate sponsors emphasized both the breadth and importance of the pre-emption provisions. Representative Dent described the reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans as ERISA's crowning achievement. 120 Cong. Rec. 29197 (1974). Senator Williams said: It should be stressed that with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law. Id., at 29933. See also Shaw v. Delta Air Lines, Inc., supra, at 99-100, n. 20 (describing remarks of Sen. Javits). In Metropolitan Life, this Court, noting that the preemption and saving clauses perhaps are not a model of legislative drafting, 471 U. S., at 739, interpreted these clauses in relation to a Massachusetts statute that required minimum mental health care benefits to be provided Massachusetts residents covered by general health insurance policies. The appellants in Metropolitan Life argued that the state statute, as applied to insurance policies purchased by employee health care plans regulated by ERISA, was pre-empted. The Court concluded, first, that the Massachusetts statute did relate to . . . employee benefit plan[s], thus placing the state statute within the broad sweep of the pre-emption clause, § 514(a). Metropolitan Life, supra, at 739. However, the Court held that, because the state statute was one that regulate[d] insurance, the saving clause prevented the state law from being pre-empted. In determining whether the Massachusetts statute regulated insurance, the Court was guided by case law interpreting the phrase business of insurance in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. § 1011 et seq. Given the statutory complexity of ERISA's three pre-emption provisions, Metropolitan Life, supra, at 740, as well as the wide variety of state statutory and decisional law arguably affected by the federal pre-emption provisions, it is not surprising that we are again called on to interpret these provisions.","In ERISA, Congress set out to"
+499,108017,1,1,"The Virginia Supreme Court of Appeals, both before and after this Court's earlier remand, refused to consider the federal questions presented to it because it found that petitioners had failed to give opposing counsel reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it, in violation of Rule 5:1, § 3 (f), of the local rules of court. [5] The majority here suggests that the State's procedural requirement, though not a novel one fashioned . . . for the first time in this case, nevertheless had not been so consistently applied . . . as to amount to a self-denial of the power to entertain the federal claim. The majority then goes on to conclude that because the State's procedural rule is more properly deemed discretionary than jurisdictional, review should not be barred here. I agree with the majority's conclusion that there is no adequate state ground shown, but I find myself unable to subscribe to the majority's reasoning, which appears to me unclear and confusing. I am not certain what the majority means in its apparent distinction between rules that it deems discretionary and those that it deems jurisdictional. Perhaps the majority wishes to suggest that the dismissals of petitioners' writs of error by the Supreme Court of Appeals were simply ad hoc discretionary refusals to accept plenary review of the lower court's decisions, analogous to this Court's denial of certiorari. If this were all the Virginia Supreme Court of Appeals had done, review of a federal question properly raised below would of course not be barred here. The mere discretionary refusal of the highest state court to grant review of a lower court decision does not provide an adequate state ground. In such circumstances, the decision of the lower court, rather than the order of the highest court refusing review, becomes the judgment of the highest court of a State in which a decision could be had for purposes of 28 U. S. C. § 1257, our jurisdictional statute. [6] But this case clearly does not present this kind of discretionary refusal of a state appellate court to accept review. Although the Virginia Supreme Court of Appeals may well have the discretion to refuse review [7] in a particular case without giving reasons or reconciling its refusal with earlier decisions, the dismissal below was not simply an ad hoc exercise of the power not to review every case presented. Instead the state court dismissed the petitions for review for a stated reason, namely, a lack of jurisdiction to entertain the appeals because of the failure of counsel for the Sullivans and the Freemans to meet the requirements of Rule 5:1, § 3 (f). When a state appellate court's refusal to consider the merits of a case is based on the failure to conform to a state rule of practice, review by this Court is barred unless this Court is able to find that application of the state rule of practice to the case at hand does not constitute an adequate state ground. This is so quite irrespective of whether the state appellate court had the power to refuse review for no reason at all. [8] The majority might have another meaning in mind when it describes the State's procedural rule as discretionary. It may be suggesting that reasonable written notice, and reasonable opportunity to examine are such flexible standards that the Virginia Supreme Court of Appeals has the discretion to decide a close case either of two ways without creating an obvious conflict with earlier decisions. If this is what the majority means by discretionary rule, then I must register my disagreement. This kind of discretion is nothing more than the judicial formulation of law, for a court has an obligation to be reasonably consistent and to explain the decision, including the reason for according different treatment to the instant case. [9] Surely a state ground is no less adequate simply because it involves a standard that requires a judgment of what is reasonable, and because the result may turn on a close analysis of the facts of a particular case in light of competing policy considerations. Although the majority's loose use of the word discretionary may suggest that any decision made pursuant to a broad standard cannot provide an adequate state ground, I think examination of the earlier opinions of the Virginia Supreme Court of Appeals, several of which are cited by the majority, provides the proper foundation for the result reached by the majority, under the principle of NAACP v. Alabama, 357 U. S. 449 (1958). The finding of the Virginia Supreme Court of Appeals of a violation of Rule 5:1, § 3 (f), in this case was in my view based on a standard of reasonableness much stricter than that which could have been fairly extracted from the earlier Virginia cases applying the rule [10] and its predecessor statute. [11] In other words, although Rule 5:1, § 3 (f), itself may not be novel, the standard implicitly governing the rule's application to the facts here was. I think it fair to conclude that in light of these earlier decisions, and the principle set forth in Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S. E. 2d 321, 326 (1958), [12] the petitioners here might have justifiably thought that review in the Supreme Court of Appeals would not be barred by the rule, notwithstanding Snead v. Commonwealth, 200 Va. 850, 108 S. E. 2d 399 (1959), the one case cited below by the Virginia court, relied on here by respondent and yet somehow ignored by the majority. [13] Because [n]ovelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal . . . rights, NAACP v. Alabama, 357 U. S., at 457-458, I conclude that the decision below does not rest on an adequate state ground.",adequacy of the state ground
+500,108017,2,1,"Because the majority opinion is highly elliptical as to (1) the circumstances surrounding Sullivan's expulsion from Little Hunting Park, (2) the relief Sullivan sought in the state court, and (3) the decision of the trial court, it is necessary for me to begin my analysis simply by stating the facts of these aspects of the case. A full examination of the record reveals, first, the necessity for a remand on the majority's own premises. It also makes apparent the majority's failure to provide any guidance as to the legal standards that should govern Sullivan's right to recovery on remand. An awareness of the complexity of the issues relevant to Sullivan's right to redress suggests further, I think, the appropriateness of a discretionary denial of review. 1. The Circumstances of Sullivan's Expulsion. After the Board of Little Hunting Park refused to approve the assignment of a membership share from Sullivan to Freeman, Sullivan attempted to convince the Board to reverse its decision. To this end, Sullivan first met with members of the Board, and protested their actions. He subsequently mobilized a campaign both by other members of the club and by persons in the community as a whole to force the Board to reconsider its decision. The means used in this campaign, as the brief for petitioner Sullivan acknowledges, [25] included phone calls to members of the Board, letters to local clergy, and the circulation among the members of Little Hunting Park of a petition that called for a meeting of the full membership to consider Dr. Freeman's case. On July 8 Sullivan received a letter from the Board which stated that it had determined that there was due cause to warrant a hearing in order to determine whether Sullivan should be expelled from Little Hunting Park, pursuant to its bylaws, for conduct inimicable to the Corporation members. This letter referred to Sullivan's non-acceptance of the Board's decision on the assignment of your membership to your tenant . . . along with the continued harassment of the board members as the basis for the Board's due cause determination. The Board subsequently provided a detailed specification of its charges against Sullivan, [26] and these included, inter alia, allegations that Sullivan had (a) instigated a campaign by which board members were harassed by unfriendly phone calls accusing them of bigotry; (b) used abusive language in a phone call to the president of the Board; (c) written letters to local clergy, including the minister of the church which employed the president of Little Hunting Park, accusing board members of participation in real moral evil; and (d) used violent and abusive language to members of Little Hunting Park who had refused to sign his petition. After the hearing on these charges, the Board expelled Sullivan and tendered to him the current market value of the two membership shares that he held. In response to these actions, Sullivan brought this suit in the Circuit Court of Fairfax County, Virginia, against Little Hunting Park and its Board seeking as relief (1) an order compelling Little Hunting Park to reinstate his membership; (2) monetary damages in the amount of $15,000; and (3) an injunction requiring the Board to approve the assignment to Freeman and forbidding the Board to use race as a factor in considering membership. The trial court, after hearing disputed evidence as to the reasons for Sullivan's expulsion, found for the defendants. It stated that the scope of its review of the Board's actions was limited because Little Hunting Park was a private and social club, and then went on to find that the Board had acted within the powers conferred on it by the By-Laws in expelling Sullivan, and that there was ample evidence to justify [the Board's] conclusion that the complainant's acts were inimicable to the Corporation's members and to the Corporation. 2. With this statement of the record in mind, several observations must be made about the majority's treatment of Sullivan's rights. First, in stating that Sullivan's expulsion [was] for the advocacy of Freeman's cause, the majority surely cannot be taken to have resolved disputed testimony, and decided the facts underlying Sullivan's expulsion. If these facts are relevant to Sullivan's remedial rights, as surely they must be, then a remand for detailed findings seems unavoidable under the majority's own premises. Second, the majority has not explained what legal standard should determine Sullivan's rights under § 1982. The majority simply states that Sullivan has standing to maintain this action under § 1982, without even acknowledging that some standard is essential for this case to be ultimately decided. One can imagine a variety of standards, each based on different legal conclusions as to the rights and duties created by § 1982, and each having very different remedial consequences. For example, does § 1982 give Sullivan a right to relief only for injuries resulting from Little Hunting Park's interference with his statutory duty to Freeman under § 1982? If so, what is Sullivan's duty to Freeman under § 1982? Unless § 1982 is read to impose a duty on Sullivan to protest Freeman's exclusion, he would be entitled to reinstatement under this standard only if the Board had expelled him for the simple act of assigning his share to Freeman. As an alternative, Sullivan might be thought to be entitled to relief from those injuries that flowed from the Board's violation of its duty to Freeman under § 1982. Such a standard might suggest that Sullivan is entitled to damages that resulted from Little Hunting Park's initial refusal to accept the assignment to Freeman but again not to reinstatement. Or does the Court think that § 1982 gives Sullivan a right to relief from injuries that result from his legitimate protest aimed at convincing the Board to accept Freeman? If so, what protest activities were legitimate here? Most extreme would be a standard that would give Sullivan relief from injuries that were the result of any actions he took to protest the Board's initial refusal, irrespective of Sullivan's means of protest. Only this standard would require reinstatement, irrespective of the disputed facts here. But this standard would mean that § 1982 gave Sullivan a right to regain his membership even if the Board has expelled him for using intemperate and abusive threats as a means of protesting Freeman's exclusion. [27]",relief for sullivan
+501,108017,2,2,"Because this case arises from a state court, it presents special problems which the majority overlooks, and which suggests again the undesirability of deciding this case in the context of this ancient statute. In deciding that there is a right to recover damages in this case, the majority overlooks the complications involved by dint of the fact that a state court is being asked to provide a remedy for a federal right bottomed on a federal statute that itself has no remedial provisions. Implied remedies for federal rights are sometimes solely a matter of federal law [28] and other times dependent, either wholly or partially, upon state law. [29] Difficult and complex questions are involved in determining what remedies a state court must [30] or must not [31] provide in cases involving federal rights. [32] It should be noted that the majority's opinion, though perhaps deciding very little [33] only adds to the confusion already existing in this area. Section 1988 of Title 42, which the majority apparently thinks decides this case, is concerned with the remedial powers of federal district courts and it provides that the federal courts shall look to state law to find appropriate remedies when the applicable federal civil rights law is deficient in the provisions necessary to furnish suitable remedies . . . . But the majority turns this provision on its head by suggesting (1) that § 1988 creates a federal remedy, apart from state law, when the remedial provisions of a civil rights statute, like § 1982, are deficient; and (2) that § 1988 itself somehow imposes this federal remedy on the States. If § 1988 says anything at all relevant for this case, it suggests that in those cases where it is appropriate to cure remedial deficiencies of a federal civil rights statute by implication, this is to be done by looking to state law to see what remedies, consistent with federal policies, would be available there. By reason of these considerations, many of which could hardly have been foreseen at the time certiorari was granted, I would dismiss the writ in this case as improvidently granted.",state court remedies for federal rights
+502,118239,3,1,"(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and (B) was the most recent signatory operator to employ the coal industry retiree in the coal industry for at least 2 years. (2) Second, if the retiree is not assigned under paragraph (1), to the signatory operator which— (A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and (B) was the most recent signatory operator to employ the coal industry retiree in the coal industry. (3) Third, if the retiree is not assigned under paragraph (1) or (2), to the signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agreement. § 9706(a). It is the application of the third prong of the allocation formula, § 9706(a)(3), to Eastern that we review in this case. [3]","First, to the signatory operator which"
+503,118239,1,1,"[N]or shall private property be taken for public use, without just compensation. U. S. Const., Amdt. 5. The provision is known as the Takings Clause. The concept of a taking under the Clause has become a term of art, and my discussion begins here. Our cases do not support the plurality's conclusion that the Coal Act takes property. The Coal Act imposes a staggering financial burden on the petitioner, Eastern Enterprises, but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest. The Coal Act does not appropriate, transfer, or encumber an estate in land ( e. g., a lien on a particular piece of property), a valuable interest in an intangible ( e. g., intellectual property), or even a bank account or accrued interest. The law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so. To the extent it affects property interests, it does so in a manner similar to many laws; but until today, none were thought to constitute takings. To call this sort of governmental action a taking as a matter of constitutional interpretation is both imprecise and, with all due respect, unwise. As the role of Government expanded, our experience taught that a strict line between a taking and a regulation is difficult to discern or to maintain. This led the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), to try to span the two concepts when specific property was subjected to what the owner alleged to be excessive regulation. The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Id., at 415. The quoted sentence is, of course, the genesis of the so-called regulatory takings doctrine. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (Prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon , it was generally thought that the Takings Clause reached only a `direct appropriation' of property or the functional equivalent of a `practical ouster of [the owner's] possession'  (citations omitted)). Without denigrating the importance the regulatory takings concept has assumed in our law, it is fair to say it has proved difficult to explain in theory and to implement in practice. Cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law. See Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123 (1978) (The question of what constitutes a `taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty); Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979) (the regulatory taking question requires an essentially ad hoc, factual inquir[y]). Until today, however, one constant limitation has been that in all of the cases where the regulatory taking analysis has been employed, a specific property right or interest has been at stake. After the decision in Pennsylvania Coal Co. v. Mahon, supra , we confronted cases where specific and identified properties or property rights were alleged to come within the regulatory takings prohibition: air rights for high-rise buildings, Penn Central, supra ; zoning on parcels of real property, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986); Agins v. City of Tiburon, 447 U. S. 255 (1980); trade secrets, Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984); right of access to property, e. g., PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980); Kaiser Aetna, supra ; right to affix on structures, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); right to transfer property by devise or intestacy, e. g., Hodel v. Irving, 481 U. S. 704 (1987); creation of an easement, Dolan v. City of Tigard, 512 U. S. 374 (1994); Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987); right to build or improve, Lucas, supra ; liens on real property, Armstrong v. United States, 364 U. S. 40 (1960); right to mine coal, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 (1987); right to sell personal property, Andrus v. Allard, 444 U. S. 51 (1979); and the right to extract mineral deposits, Goldblatt v. Hempstead, 369 U. S. 590 (1962); United States v. Central Eureka Mining Co., 357 U. S. 155 (1958). The regulations in the cited cases were challenged as being so excessive as to destroy, or take, a specific property interest. The plurality's opinion disregards this requirement and, by removing this constant characteristic from takings analysis, would expand an already difficult and uncertain rule to a vast category of cases not deemed, in our law, to implicate the Takings Clause. The difficulties in determining whether there is a taking or a regulation even where a property right or interest is identified ought to counsel against extending the regulatory takings doctrine to cases lacking this specificity. The existence of at least this outer boundary for application of the regulatory takings rule provides some necessary predictability for governmental entities. Our definition of a taking, after all, is binding on all of the States as well as the Federal Government. The plurality opinion would throw one of the most difficult and litigated areas of the law into confusion, subjecting States and municipalities to the potential of new and unforeseen claims in vast amounts. The existing category of cases involving specific property interests ought not to be obliterated by extending regulatory takings analysis to the amorphous class of cases embraced by the plurality's opinion today. True, the burden imposed by the Coal Act may be just as great if the Government had appropriated one of Eastern's plants, but the mechanism by which the Government injures Eastern is so unlike the act of taking specific property that it is incongruous to call the Coal Act a taking, even as that concept has been expanded by the regulatory takings principle. In the terminology of our regulatory takings analysis, the character of the governmental action renders the Coal Act not a taking of property. While the usual taking occurs when the government physically acquires property for itself, e. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), our regulatory takings analysis recognizes a taking may occur when property is not appropriated by the government or is transferred to other private parties. See, e. g., United States v. Security Industrial Bank, 459 U. S. 70, 78 (1982) ([O]ur cases show that takings analysis is not necessarily limited to outright acquisitions by the government for itself); Loretto, supra (transfer of physical space from landlords to cable companies). As the range of governmental conduct subjected to takings analysis has expanded, however, we have been careful not to lose sight of the importance of identifying the property allegedly taken, lest all governmental action be subjected to examination under the constitutional prohibition against taking without just compensation, with the attendant potential for money damages. We have asked how the challenged governmental action is implemented with particular emphasis on the extent to which a specific property right is affected. See id., at 432 (physical invasion is a government action of such a unique character that it is a taking without regard to other factors); Hodel, supra, at 715-716 (declaring a law, which otherwise would not be a taking because of its insignificant economic impact, a taking because the character of the governmental action destroyed the right to pass property to one's heirs, a right which has been part of the Anglo-American legal system since feudal times); Penn Central, supra, at 124 (A `taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good (citation omitted)). The Coal Act neither targets a specific property interest nor depends upon any particular property for the operation of its statutory mechanisms. The liability imposed on Eastern no doubt will reduce its net worth and its total value, but this can be said of any law which has an adverse economic effect. The circumstance that the statute does not take money for the Government but instead makes it payable to third persons is not a factor I rely upon to show the lack of a taking. While there are instances where the Government's selfenrichment may make it all the more evident a taking has occurred, e. g., Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 (1980); United States v. Causby, 328 U. S. 256 (1946), the Government ought not to have the capacity to give itself immunity from a takings claim by the device of requiring the transfer of property from one private owner directly to another. Cf. Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984). At the same time, the Government's imposition of an obligation between private parties, or destruction of an existing obligation, must relate to a specific property interest to implicate the Takings Clause. For example, in United States v. Security Industrial Bank , we confronted a statute which was alleged to destroy an existing creditor's lien in certain chattels to the benefit of the debtor. We acknowledged that, given the nature of the property interest at stake, which resembled a contractual obligation, the takings challenge fits but awkwardly into the analytic framework of our regulatory takings analysis. 459 U. S., at 75. We decided the analysis could apply because the property interest was a traditional property interes[t], though in the end the statute was found inapplicable to the lien at issue. In so holding, we relied on Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 (1935), which invalidated the Frazier-Lemke Farm-Mortgage Act, because it interfered with mortgages on farms and thus worked a `taking of substantive rights in specific property acquired by the Bank prior to'  the Act. 459 U. S., at 77 (quoting Radford, supra, at 590, 601). Unlike the statutes at issue in Security Industrial Bank and Radford, the Coal Act does not affect an obligation relating to a specific property interest. If the plurality is adopting its novel and expansive concept of a taking in order to avoid making a normative judgment about the Coal Act, it fails in the attempt; for it must make the normative judgment in all events. See, e. g., ante, at 537 ([T]he governmental action implicates fundamental principles of fairness). The imprecision of our regulatory takings doctrine does open the door to normative considerations about the wisdom of government decisions. See, e. g., Agins v. City of Tiburon, 447 U. S., at 260 (zoning constitutes a taking if it does not substantially advance legitimate state interests). This sort of analysis is in uneasy tension with our basic understanding of the Takings Clause, which has not been understood to be a substantive or absolute limit on the government's power to act. The Clause operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge. The Clause presupposes what the government intends to do is otherwise constitutional: As its language indicates, and as the Court has frequently noted, [the Takings Clause] does not prohibit the taking of private property, but instead places a condition on the exercise of that power. This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314-315 (1987) (emphasis and citations omitted). Given that the constitutionality of the Coal Act appears to turn on the legitimacy of Congress' judgment rather than on the availability of compensation, see ante, at 521 ([I]n a case such as this one, it cannot be said that monetary relief against the Government is an available remedy), the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause. It should be acknowledged that there are passages in some of our cases on the imposition of retroactive liability for an employer's withdrawal from a pension plan which might give some support to the plurality's discussion of the Takings Clause. See Connolly v. Pension Benefit Guaranty Corpo- ration, 475 U. S. 211, 223 (1986); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 641 (1993). In Connolly, the Court said the definition of a taking was not controlled by any set formula, but was dependent on ad hoc, factual inquiries into the circumstances of each particular case. 475 U. S., at 224. The Court then applied the three-factor regulatory takings analysis set forth in Penn Central, which examines the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 475 U. S., at 225. This analysis did not result in a finding of a taking. The Court, moreover, prefaced the entire takings discussion with the admonition it would be surprising to discover that there had been a taking in the instance where a due process attack had been rejected. See id., at 223; see also Concrete Pipe, supra, at 641 (Given that [the] due process arguments are unavailing, `it would be surprising indeed to discover' the challenged statute nonetheless violating the Takings Clause) (quoting Connolly, supra, at 223). At best, Connolly is equivocal on the question whether we should apply the regulatory takings analysis to instances like the one now before us. My reading of Connolly, and Concrete Pipe, is that we should proceed first to general due process principles, reserving takings analysis for cases where the governmental action is otherwise permissible. See Connolly, supra, at 224 ([H]ere, the United States has taken nothing for its own use, and only has nullified a contractual provision limiting liability by imposing an additional obligation that is otherwise within the power of Congress to impose); see also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 94, n. 39 (1978) (upholding on due process grounds the Price-Anderson Act, 42 U. S. C. § 2210 (1970 ed., Supp. V), which placed a cap on civil liability for nuclear accidents, but declining to address petitioner's request that the Act be declared a taking because compensation would be available under the Tucker Act, 28 U. S. C. § 1491(a)(1) (1976 ed.)). These authorities confirm my view that the case is controlled not by the Takings Clause but by well-settled due process principles respecting retroactive laws. Given my view that the takings analysis is inapplicable in this case, it is unnecessary to comment upon the plurality's effort to resolve a jurisdictional question despite little briefing by the parties on a point which has divided the Courts of Appeals.",The final Clause of the Fifth Amendment states:
+504,111833,1,1,"Respondent's ranch of 198 acres is encircled by a perimeter fence. The residence and its outbuildings are located in a clearing surrounded by woods, one-half mile from a road, down a chained, locked driveway. Neither the farmhouse nor its outbuildings are visible from the public road or from the fence that encircles the entire property. Once inside this perimeter fence, it is necessary to cross at least one more substantial fence before approaching Dunn's farmhouse or either of his two barns. United States v. Dunn, 674 F. 2d 1093, 1100 (CA5 1982). The front of the barn involved here is enclosed by a wooden fence. Its back and sides were composed of brick, metal siding, and large metal sliding doors and were completely enclosed. The front of the barn was partially composed of a wooden wall with windows. The remainder was enclosed by waist-high wood slatting and wooden gates. At the time of [the] agent['s] visits . . . , the top half of the front of the barn was covered by a fishnet type material from the ceiling down to the top of the locked wooden gates. To see inside the barn it was necessary to stand immediately next to the netting [under the barn's overhang]. From as little as a few feet distant, visibility into the barn was obscured by the netting and slatting. 766 F. 2d 880, 883 (CA5 1985). The issues are whether the barn was within the protected curtilage of the house, and whether the conduct of the Drug Enforcement Agency (DEA) agents — circling the large barn, being unable to see inside through the back or sides, climbing a wooden fence at its front, entering its overhang and going into the immediate proximity of the fishnet and wooden gate front enclosure — infringed upon Dunn's reasonable expectation of privacy in the barn or its contents. Id., at 884.",I briefly recount the relevant facts.
+505,106531,1,3,"It is said that the Kansas Supreme Court did not rest its decision on a state ground (the abrogation, by virtue of the Commission's orders, of Northern's take or pay obligations under the Republic contract), but decided the federal questions. Whatever may have prompted the state court to this course—perhaps a desire to obtain from this Court a broad decision on the federal question or a mistaken belief as to the irrelevancy of the contract question to the existence of the state power now questioned—this surely does not constrict the grounds of our adjudication of the case. It is familiar practice for this Court to refuse to reach federal constitutional questions on which the state courts have predicated decision. It is enough to refer to the landmark concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346-348, enumerating principles designed to avoid the unnecessary adjudication of constitutional questions—a tenet of adjudication to which this Court has always strictly adhered. A remand, it is also said, would be a highly irregular step for the further reasons that the effect of the State Commission's orders on the Republic A contract was not drawn in question in this suit and the Republic Company itself was not a party to the litigation. However, in light of what has already been said the germaneness of that contract issue to the question of the validity of state power in the premises is apparent. And apart from the presumed availability of state procedures for the vouching into the case of the Republic Company, we are informed by the Federal Power Commission that there is now pending in the state courts another case against Northern, to which Republic is a party, that involves the continuing validity of the take or pay provisions of the A contract. [11] Hence, if necessary, the Kansas Supreme Court could on remand of the present case hold its hand pending resolution of the contract issue in the other litigation. In short, I cannot understand why this Court should not remand for determination of a state law issue that may dispose of this case, as the Court has done in other comparable instances. See, e. g., Leiter Minerals, Inc., v. United States, 352 U. S. 220, 228-230; Aquilino v. United States, 363 U. S. 509, 515-516. I would vacate the judgments of the Supreme Court of Kansas and remand the case to that court for a determination, in accordance with Kansas procedures, as to the effect of the State Commission's orders on the Northern-Republic A contract.",The Court's remaining arguments against remand are equally unsatisfactory.
+506,117890,2,1,"[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the `Uniform Deceptive Trade Practices Act' . . . in the conduct of any trade or commerce . . . whether any person has in fact been misled, deceived or damaged thereby. Ill. Comp. Stat., ch. 815, § 505/2 (1992) (formerly codified at Ill. Rev. Stat., ch. 121 12, ¶ 262 (1991)). The Act is prescriptive; it controls the primary conduct of those falling within its governance. This Illinois law, in fact, is paradigmatic of the consumer protection legislation underpinning the NAAG guidelines. The NAAG Task Force on the Air Travel Industry, on which the Attorneys General of California, Illinois, Texas, and Washington served, see Morales, 504 U. S., at 392, reported that the guidelines created no new laws or regulations regarding the advertising practices or other business practices of the airline industry. They merely explain in detail how existing state laws apply to air fare advertising and frequent flyer programs. Ibid. The NAAG guidelines highlight the potential for intrusive regulation of airline business practices inherent in state consumer protection legislation typified by the Consumer Fraud Act. For example, the guidelines enforcing the legislation instruct airlines on language appropriate to reserve rights to alter frequent flyer programs, and they include transition rules for the fairinstitution of capacity controls. See Brief for United States as Amicus Curiae 13-14, n. 7. As the NAAG guidelines illustrate, the Consumer Fraud Act serves as a means to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers. In light of the full text of the preemption clause, and of the ADA's purpose to leave largely to the airlines themselves, and not at all to States, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services, [4] we conclude that § 1305(a)(1) preempts plaintiffs' claims under the Consumer Fraud Act.",The Consumer Fraud Act declares unlawful
+507,103227,1,1,"Certain provisions of the Order were found by the District Court to show unconstitutional discrimination against one or more of the defendants. The discriminations of which complaint is made arise from the application to the New York problem of § 8c (5) of the Act relating to milk. A. Uniform Price. — The Jetter Dairy Company, a proprietary handler, urges that as milk cooperatives need not pay producers a uniform price, it is unreasonably discriminatory and violative of the due process clause of the Fifth Amendment to require it to pay this uniform price. In § 8c (5) (F) there is a definition of the type of cooperative permitted to settle with its members in accordance with the membership contract. The general characteristics of cooperatives are well understood. The Capper-Volstead Act defines such cooperatives as associations of producers, corporate or otherwise, with or without capital stock, marketing their product for the mutual benefit of the members as producers with equal voting privileges, restricted dividends on capital employed and dealings limited to 50 percent non-member products. [24] Different treatment has been accorded marketing cooperatives by state and federal legislation alike. [25] Indeed the Secretary is charged by this Act to accord such recognition and encouragement to producer-owned and producer-controlled cooperative associations as will be in harmony with the policy toward cooperative associations set forth in existing Acts of Congress, and as will tend to promote efficient methods of marketing and distribution. [26] These agricultural cooperatives are the means by which farmers and stockmen enter into the processing and distribution of their crops and livestock. The distinctions between such cooperatives and business organizations have repeatedly been held to justify different treatment. [27] Frost v. Corporation Commission [28] in fact recognized the validity of such classification. The Commission was enjoined from issuing a license for the operation of a cooperative cotton gin, under a proviso directing it to do so on petition of 100 citizens and taxpayers without the showing of public necessity required for other ginners. The applicant was organized for profit, though dividends were limited, and its membership was not confined to producers. The court thought the distinctions had no reasonable relation to the subject of the legislation, special opportunities for cooperatives. It was said the Court had no reason to doubt that the classification was valid as applied to true cooperatives. [29] The producer cooperative seeks to return to its members the largest possible portion of the dollar necessarily spent by the consumer for the product with deductions only for modest distribution costs, without profit to the membership cooperative and with limited profit to the stock cooperative. It is organized by producers for their mutual benefit. [30] For that reason, it may be assumed that it will seek to distribute the largest amounts to its patrons. The commodity handled by a cooperative corresponds for some purposes to the capital of a business corporation. Either may cut sale prices below cost, one as long as its members will deliver, the other as long as its assets permit. When proprietary corporations lower sales prices, they naturally seek to lower purchase prices. Their profit depends on spread. On the other hand, the cooperative cannot pass the reduction. All the selling price less expense is available for distribution to its patrons. As its own members bear the burden of price cutting, it was reasonable to exempt it from the payment of the fixed price. The cooperative member measures his return by the market or uniform price the business handler pays. In commodities with the wide market of staple dairy products, quotations are readily available. If distributions do not equal open prices, the cooperators' reactions would parallel those of stockholders of losing businesses. Neither the Act nor the order protects anyone from lawful competition, nor is it essential that they should do so. [31] We do not find an unreasonable discrimination in excepting producers' cooperatives from the requirement to pay a uniform price. B. Unpriced Milk. Another discrimination is said to reside in that part of the Order which limits minimum prices to milk sold in the marketing area or which passes through a plant in the marketing area. Other milk, though from the same production area, is unpriced milk and does not figure in the computation of the uniform price. Where both priced and unpriced milk are dealt in by a handler, he must furnish a statement to the producer showing the percentage of his milk paid for at the uniform price. [32] The defendants handle only milk which is sold in the marketing area. They assert that an unreasonable discrimination results in favor of handlers, such as the League, which market milk both in and outside the marketing area. The basis of the complaint is that large dealers and cooperative handlers with extensive gathering and distributing facilities are permitted to purchase milk throughout the milk shed at any price they please, if the milk does not pass through a plant in the marketing area, and sell it at any price they please, provided the sale is outside the limited New York marketing area. By reason of the fact that milk sells for more in New Jersey than in New York, a greater profit is made by the handler. If he so desires, the handler can use this profit to replace losses on New York area sales and still be in a position to pay the uniform price to producers on pool milk. This is said to create a discrimination against the defendants. It is possible for the handlers with unpriced milk to use their profits from the profitable extra area trade in the way suggested. It was equally possible for them to do so before the Order. It is a competitive situation which the Order did not create and with which it does not deal. We are of the view that there is no discrimination by reason of this situation. The District Court found that handlers of unpriced milk are permitted to blend prices paid or purported to have been paid for such milk sold in other markets, with the uniform price announced by the Administrator for milk sold in the area, thereby reducing the actual price paid by such handlers, for milk sold in the Metropolitan Area, in competition with milk sold by the defendants. If the price figured by the handler for unpriced milk, is lower than its actual market value, the handler, by blending, is thereby permitted to pay producers for all milk at less than the Order price, and less than the actual value thereof. It is erroneous to suppose that by buying some milk at less than the minimum, the actual price paid for milk sold in the marketing area is reduced. The price paid for all milk sold by proprietary handlers in that area is the uniform price. Unpriced milk from the same producer may be bought for less. The average paid the producer may be below the minimum but for the part sold in the marketing area or passing through plants there located the minimum is paid. This is all that justifies the language of the finding that the handler, by blending, is thereby permitted to pay producers for all milk at less than the Order price. . . . C. Nearby Differentials. Provision is made by the Order for special differentials of 20 cents on milk from certain counties located most favorably to the marketing area. [33] This is to enable handlers to pay the producers at these plants. [34] The five cent difference is absorbed by the handlers. The Act authorizes such an arrangement. § 8c (5) (A). This was found discriminatory as between producers by the District Court but there was no finding or conclusion of law as to any discrimination against defendants. The District Court was of the opinion this was unfair to these defendants who have no patrons in these counties. Here the defendants urge further advantages from this arrangement to their competitors who have patrons in these counties because near locations, freight differentials considered, have lower transportation costs. The differential increases milk prices to the producers. This payment tends to stimulate production. Larger production means more benefit from the freight advantage to competitors. The discrimination seems fanciful and remote. It would not justify a court in overturning the Secretary's determination of the propriety of the differentials on evidence found by the lower court to be substantial. Such an administrative determination carries a presumption of the existence of a state of facts justifying the action far too strong to be overturned by such suggestions as are made here. [35]",Terms of the Order.
+508,103227,1,2,"A. Minimum Prices. The Act authorizes and the Order undertakes the fixing of minimum prices for the purchase of milk in the current of interstate or foreign commerce, or which directly burdens, obstructs, or affects, interstate or foreign commerce in milk. [36] There is no challenge to the fact that the milk of all four defendants reaches the marketing area through the channels of interstate commerce. Nor is any question raised as to the power of the Congress to regulate the distribution in the area of the wholly intrastate milk. It is recognized that the federal authority covers the sales of this milk, as its marketing is inextricably intermingled with and directly affects the marketing in the area of the milk which moves across state lines. [37] The challenge is to the regulation of the price to be paid upon the sale by a dairy farmer who delivers his milk to some country plant. It is urged that the sale, a local transaction, is fully completed before any interstate commerce begins and that the attempt to fix the price or other elements of that incident violates the Tenth Amendment. But where commodities are bought for use beyond state lines, the sale is a part of interstate commerce [38] We have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole. [39] Activities conducted within state lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them. [40] Power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the state of production. [41] Where local and foreign milk alike are drawn into a general plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social and sanitary evils of low values, the power of the Congress extends also to the local sales. This power over commerce when it exists is complete and perfect. [42] It has been exercised to fix a wage scale for a limited period, [43] railroad tariffs [44] and fees and charges for live-stock exchanges. [45] The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce. Since Munn v. Illinois , this Court has had occasion repeatedly to give consideration to the action of states in regulating prices. [46] Recently, upon a reexamination of the grounds of state power over prices, that power was phrased by this Court to mean that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells. [47] The power of a state to fix the price of milk has been adjudicated by this Court. [48] The people of great cities depend largely upon an adequate supply of pure fresh milk. So essential is it for health that the consumer has been willing to forego unrestricted competition from low cost territory to be assured of the producer's compliance with sanitary requirements, as enforced by the municipal health authorities. It belongs to that category of commodities that for many years has been subjected to the regulatory power of the state. A thorough exposition of the milk situation in the New York shed was made in the Nebbia case. There is nothing to add to what was there said, save to point out that since that decision, we have held that a state cannot prohibit the sale of imported milk where the extra-state purchase price was below the prescribed minimum [49] and that a Pennsylvania regulatory law, including minimum prices, applied in the absence of federal legislation to milk purchased in Pennsylvania for shipment into the New York marketing area. [50] In Hegeman Farms Corp. v. Baldwin , [51] this Court sustained again the New York Milk Control Statute against the complaint that the price limits were arbitrary. A variation in prices to be charged the consumer between dealers who had and dealers who had not well advertised trade names was upheld. [52] The power enjoyed by the states to regulate the prices for handling and selling commodities within their internal commerce [53] rests with the Congress in the commerce between the states. B. Equalization Pool. — In order to equalize the prices received by producers, handlers are required to clear their purchases through the producer settlement fund. Payments into and withdrawals from this fund depend upon the value of the milk received which is fixed by the Order at different prices governed by the use made by the handler of the purchased milk and upon whether his obligations to producers are greater or less than the uniform price due the producers under the scheme. The result of the use of the device of an equalization pool is that each producer, dealing with a proprietary handler, gets a uniform or weighted average price for his milk, with differentials for quality, location or other usual market variations, irrespective of the manner of its use. The Act, § 8c (5) (B) (ii) and (C) and the Order, Articles IV, VI and VII, authorize such an adjustment. The defendants' objection to the equalization pool, here considered, is not to the disbursements from the fund for expenses of standby or marketing services authorized by Article VII, §§ 5 and 6, concerning which we hold the handler has no standing to complain. It is to the alleged deprivation of liberty and property accomplished by the pooling requirement in taking away from the defendants their right to acquire milk from their patrons at the minimum class price, according to its use, and forcing the handlers to pay their surplus, over the uniform price, to the equalization pool instead of to their patrons. This argument assumes the validity of price regulation, as such, but denies the constitutionality of the pooling arrangement because handlers are not at liberty to pay the producer in accordance with the use of the producer's milk but must distribute the surplus to others whose milk was resold less advantageously. It is urged that to carry this principle of contribution to its logical conclusion would mean that the wages of the employed should be shared with the unemployed; the highly paid, with the underpaid; and the receipts of the able, the fortunate and the diligent, with the incompetent, the unlucky and the drone. No such exaggerated equalization of wealth and opportunity is proposed. The pool is only a device reasonably adapted to allow regulation of the interstate market upon terms which minimize the results of the restrictions. It is ancillary to the price regulation designed, as is the price provision, to foster, protect and encourage interstate commerce by smoothing out the difficulties of the surplus and cut-throat competition which burdened this marketing. In Mulford v. Smith , [54] we made it clear that volume of commodity movement might be controlled or discouraged. As the Congress would have, clearly, the right to permit only limited amounts of milk to move in interstate commerce, we are of the opinion it might permit the movement on terms of pool settlement here provided. Common funds for equalizing risks are not unknown and have not been considered violative of due process. The pooling principle was upheld in workmen's compensation, [55] bank deposit insurance, [56] and distribution of benefits in the Transportation Act. [57] The defendants rely particularly upon Thompson v. Consolidated Gas Utilities Corp., [58] and Railroad Retirement Board v. Alton R. Co. [59] In the Thompson case, the Texas Railroad Commission ordered proration of gas production in the Panhandle. It was assumed that proration to prevent waste and protect correlative rights in a pool was valid but it was held that the proration order in issue was for none of these purposes. It was for the sole purpose . . . to compel those [with market outlets] . . . to purchase gas from potential producers who have no market. This was not deemed to be reasonably related to the conservation of gas or the protection of correlative rights. In the Retirement Board case, the pooling principle was involved but was found to be invalid because the burdens on the roads were not equalized with the benefits. Entry on service was made at different age levels for different roads. Employees seventy or older were required to retire. Some roads had none. Solvent and insolvent roads were liable alike. All carriers were treated as a single employer. It was these provisions, deemed unequal, which led to the conclusion that the manner of pooling of funds denied due process. In this case, the pooling has differentials to cover the variations of quality and location. C. Delegation. — There are three issues of delegation presented: (1) the delegation of authority to the Secretary of Agriculture to establish marketing areas; (2) the delegation of authority to producers to approve a marketing order without an agreement of handlers; and (3) the delegation of authority to cooperatives to cast the votes of producer patrons. From the earliest days the Congress has been compelled to leave to the administrative officers of the government authority to determine facts which were to put legislation into effect and the details of regulations which would implement the more general enactments. It is well settled, therefore, that it is no argument against the constitutionality of an act to say that it delegates broad powers to executives to determine the details of any legislative scheme. This necessary authority has never been denied. [60] In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests the Congress needs specify only so far as is reasonably practicable. [61] The present Act, we believe, satisfies these tests. 1. Delegation to the Secretary of Agriculture. — The purpose of the Act is to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as will establish prices to farmers at a level that will give agricultural commodities a purchasing power with respect to articles that farmers buy, equivalent to the purchasing power of agricultural commodities in the base period. To accomplish this, the Secretary of Agriculture is directed to issue orders, whenever he has reason to believe the issuance of an order will tend to effectuate the declared policy of the act. Unlike the language of the National Industrial Recovery Act condemned in the Schechter case, page 538, the tests here to determine the purpose and the powers dependent upon that conclusion are defined. In the Recovery Act the Declaration of Policy was couched in most general terms. [62] In this Act it is to restore parity prices, § 2. Under the Recovery Act, general welfare might be sought through codes of any industry, formulated to express standards of fair competition for the businesses covered. Here the terms of orders are limited to the specific provisions, minutely set out in § 8c (5) and (7). While considerable flexibility is provided by § 8c (7) (D), it gives opportunity only to include provisions auxiliary to those definitely specified. The Secretary is not permitted freedom of choice as to the commodities which he may attempt to aid by an order. The Act, § 8c (2), limits him to milk, fresh fruits except apples, tobacco, fresh vegetables, soybeans and naval stores. The Act authorizes a marketing agreement and order to be issued for such production or marketing regions or areas as are practicable. A city milkshed seems homogeneous. This standard of practicality is a limit on the power to issue orders. It determines when an order may be promulgated. It is further to be observed that the Order could not be and was not issued until after the hearing and findings as required by § 8c (4). Public hearings were held at Albany, Malone, Syracuse, Elmira, and New York from May 16 to June 7, 1938, with four days' recess. Nearly three thousand pages of testimony were introduced, eighty-eight documentary exhibits and some twenty briefs by interested parties were filed. On July 23, 1938, the Secretary, in the Federal Register, notified the public of his findings and the terms of the Order and again invited comment. Numerous parties again filed briefs. A right by statute is given handlers to object to the Secretary to any provision of an order as not in accordance with law, with the privilege of appeal to the courts. § 8c (15) (A) and (B). Even though procedural safeguards cannot validate an unconstitutional delegation, they do furnish protection against an arbitrary use of properly delegated authority. [63] A further provision of the Act is to be noted as it was employed as a standard to determine the minimum price. This is § 8c (18). Acting under this section, the Secretary fixed a fluctuating minimum price based upon wholesale butter prices in New York. While it is true that the determination of price under this section has a less definite standard than the parity tests of §§ 2 and 8e, we cannot say that it is beyond the power of the Congress to leave this determination to a designated administrator, with the standards named. The Secretary must have first determined the prices in accordance with § 2 and § 8e, that is, the prices that will give the commodity a purchasing power equivalent to that of the base period, considering the price and supply of feed and other pertinent economic conditions affecting the milk market in the area. If he finds the price so determined unreasonable, it is to be fixed at a level which will reflect such factors, provide adequate quantities of wholesome milk and be in the public interest. This price cannot be determined by mathematical formula but the standards give ample indications of the various factors to be considered by the Secretary. 2. Delegation to Producers. — Under § 8c (9) (B) of the Act it is provided that any order shall become effective notwithstanding the failure of 50 percent of the handlers to approve a similar agreement, if the Secretary of Agriculture with the approval of the President determines, among other things, that the issuance of the order is approved by two-thirds of the producers interested or by interested producers of two-thirds of the volume produced for the market of the specified production area. By subsection 19 it is provided that for the purpose of ascertaining whether the issuance of such order is approved the Secretary may conduct a referendum among producers. The objection is made that this is an unlawful delegation to producers of the legislative power to put an order into effect in a market. In considering this question, we must assume that the Congress had the power to put this Order into effect without the approval of anyone. Whether producer approval by election is necessary or not, a question we reserve, a requirement of such approval would not be an invalid delegation. [64] 3. Authorization of Cooperatives to Cast the Votes of Producer Patrons. — This objection, too, falls before the answering argument that inasmuch as Congress could place the Order in effect without any vote, it is permissible for it to provide for approval or disapproval in such way or manner as it may choose. Cooperatives in the Equalization Fund. — The defendant, Central New York Cooperative Association, denies liability under Articles VI, VII and VIII of the Order on the ground that it is not liable to pay its net pool obligation into the administrative fund or to meet the expenses of administration. The asserted reason for its freedom from liability is that it is a cooperative composed of milk producers and distributes the milk of its members and others as agent. The cooperative owns no farms. Its members are dairy farmers. By their contract they agree to deliver . . . all . . . milk produced . . . which said milk is to be marketed and distributed by the [cooperative] . . . The latter agrees to pay . . . for the milk . . . a price . . . based upon the amount received . . . less the expenses . . . Nonmembers' milk is marketed under the same contract. The cooperative leases receiving and distributing facilities from a business corporation. The milk is received by the cooperative at receiving plants and shipped to the city depot. It distributes through other business corporations which are wholly-owned subsidiaries of the cooperative. These distributing subsidiaries use the leased physical facilities under verbal contracts with the cooperative. The cooperative receives the net amount from the sales and distributes to its patrons under license from the Director of the Division of Milk Control of New York permitting the marketing in the manner described. Section 8c (5) (A) authorizes an order to classify milk and fix minimum prices which all handlers shall pay for milk purchased from producers. Section 8c (5) (C) authorizes the equalization pool and the handlers' payment to this settlement fund. It is urged that cooperatives which merely act as agents for their members are not included in handlers purchasing from producers. This is said to be definitely shown by the provisions of § 8c (5) (F) providing that nothing contained in the subsection shall be construed to prevent a Capper-Volstead cooperative from making distribution to its producers in accordance with the contract. The Order defines a handler as including a cooperative association with respect to any milk received from producers at any plant operated by such association or with respect to any milk which it causes to be delivered to other handlers. Under the provisions of the Order, Article VII, §§ 8 and 9, cooperative handlers as other handlers equalize their purchases by payment into the producer settlement fund, even though they are not required to pay the uniform price to their producers by reason of the exception of Article VII, § 1, and the provisions of § 8c (5) (F), as explained at page 561. Cooperative contracts are of two general types, sale and agency. [65] The Central New York Cooperative operates under the agency type. It is obvious that the use of the word purchased in the Act, § 8c (5) (A) and (C), would not exclude the sale type of cooperative. When § 8c (5) (F) was drawn, however, it was made to apply to both the sale and agency type without distinction. This would indicate there had been no intention to distinguish between the two types by (A) and (C). The section which authorizes all orders, § 8c (1), makes no distinction. The orders are to be applicable to processors, associations of producers, and others engaged in the handling of commodities. The reports on the bill show no effort to differentiate. [66] Neither do the debates in Congress. The statutory provisions for equalization of the burdens of surplus would be rendered nugatory by the exception of agency cooperatives. The administrative construction has been to include such organizations as handlers. [67] With this we agree. As here used the word purchased means acquired for marketing. Subsection (A) cannot be construed as freeing agents, cooperative or proprietary, from the requirement to account at the minimum prices for milk handled. As a corollary the contention is made also by Central Cooperative that no cooperative may be required to pay its surplus receipts over uniform prices into the equalization fund. This, too, is based upon a construction of § 8c (5) (F) as permitting a cooperative to make settlement with its members in accordance with the terms of its own contract with them. If the cooperative members were freed of the burden of carrying their proportion of milk going to manufacturing use, the discrimination in their favor would be most strongly marked. Such a construction is not required. Cooperatives are covered by § 8c (1) and (5) (A) and (B), and by the provisions of the Order, except as to the payment of the uniform price. Any payments below the uniform price fall on their members. We are of the view that the administrative construction is correct and that the net proceeds of (F) refer to the result of the cooperative sales in the marketing area after complying with the equalization requirements. The defendant, Central New York Cooperative Association, raises for itself a final point. In determining the net pool obligation of any handler for milk received from producers, [68] the handler is authorized to subtract pro rata out of each class from the milk involved in the pool the quantity of milk received from the handler's own farm. We have determined that this cooperative, though marketing milk under an agency contract with its members, is a handler subject to the Act and Order. The cooperative argues that as its members, farmers, would not need to account to the pool for their personal sales to consumers, the cooperative, being utilized as an agent to market the farmers' milk, is under no obligation to contribute to equalization. As the cooperative does not have its own farm but is itself a handler under the Act, it must pay into the producer settlement fund. Inasmuch as all the defendants in these appeals are handling milk in interstate commerce, the petition for the enforcement of Official Order No. 126, issued under c. 383 of the Laws of 1937 of the State of New York, concerning milk not covered by Order No. 27 of the Secretary of Agriculture, should be dismissed. The order of the District Court in Nos. 771, 827 and 828 is reversed and the causes are remanded to that Court with instructions to enter an order specifically enforcing up to the time of suspension the provisions of Order No. 27, issued by the Secretary of Agriculture August 15, 1938, regulating the handling of milk in the New York marketing area, as to all the defendants and enjoining defendants, their officers, agents and servants, from further violation of the Order. The order of the District Court in dismissing the petition of Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, is affirmed. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur in the judgment and opinion of the Court except insofar as the opinion appears to imply that power of Congress to enact the marketing law depends upon the use and nature of milk. They do not believe that we are called upon in this case to indicate, as they think we do, that there is such a constitutional limitation on the power of Congress to regulate interstate commerce.",Constitutionality of the Act.
+509,109729,1,2,"Public Law 93-526 has two Titles. Title I, the challenged Presidential Recordings and Materials Preservation Act, consists of §§ 101 through 106. Title II, the Public Documents Act, amends Chapter 33 of Title 44, United States Code, to add §§ 3315 through 3324 thereto, and establish the National Study Commission on Records and Documents of Federal Officials. Section 101 (a) of Title I directs that the Administrator of General Services, notwithstanding any other law or agreement or understanding ( e. g., the Nixon-Sampson agreement), shall receive, obtain, or retain, complete possession and control of all original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which— (1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government; (2) were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, District of Columbia; Camp David, Maryland; Key Biscayne, Florida; or San Clemente, California; and (3) were recorded during the period beginning January 20, 1969, and ending August 9, 1974. Section 101 (b) provides that notwithstanding any such agreement or understanding, the Administrator also shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials [as defined by 44 U. S. C. § 2101] of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974. Section 102 (a) prohibits destruction of the tapes or materials except as may be provided by law, and § 102 (b) makes them available (giving priority of access to the Office of the Watergate Special Prosecutor) in response to court subpoena or other legal process, or for use in judicial proceedings. This was made subject, however, to any rights, defenses, or privileges which the Federal Government or any person may invoke . . . . Section 102 (c) affords appellant, or any person designated by him in writing, access to the recordings and materials for any purpose consistent with the Act subsequent and subject to the regulations issued by the Administrator under § 103. See n. 46, infra. Section 102 (d) provides for access according to § 103 regulations by any agency or department in the Executive Branch for lawful Government use. Section 103 requires custody of the tape recordings and materials to be maintained in Washington except as may otherwise be necessary to carry out the Act, and directs that the Administrator promulgate regulations necessary to assure their protection from loss or destruction and to prevent access to them by unauthorized persons. Section 104, in pertinent part, directs the Administrator to promulgate regulations governing public access to the tape recordings and materials. Section 104 (a) requires submission of proposed regulations to each House of Congress, the regulations to take effect under § 104 (b) (1) at the end of 90 legislative days unless either the House or the Senate adopts a resolution disapproving them. The regulations must take into account seven factors specified in § 104 (a), namely: (1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term `Watergate'; (2) the need to make such recordings and materials available for use in judicial proceedings; (3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings to information relating to the Nation's security; (4) the need to protect every individual's right to a fair and impartial trial; (5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials; (6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and (7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance. Section 105 (a) vests the District Court for the District of Columbia with exclusive jurisdiction not only to hear constitutional challenges to the Act, but also to hear challenges to the validity of any regulation, and to decide actions involving questions of title, ownership, custody, possession, or control of any tape or materials, or involving payment of any award of just compensation required by § 105 (c) when a decision of that court holds that any individual has been deprived by the Act of private property without just compensation. Section 105 (b) is a severability provision providing that any decision invalidating a provision of the Act or a regulation shall not affect the validity or enforcement of any other provision or regulation. Section 106 authorizes appropriation of such sums as may be necessary to carry out the provisions of the Title.",The Act
+510,109729,1,3,"The District Court correctly focused on the Act's requirement that the Administrator of General Services administer the tape recordings and materials placed in his custody only under regulations promulgated by him providing for the orderly processing of such materials for the purpose of returning to appellant such of them as are personal and private in nature, and of determining the terms and conditions upon which public access may eventually be had to those remaining in the Government's possession. The District Court also noted that in designing the regulations, the Administrator must consider the need to protect the constitutional rights of appellant and other individuals against infringement by the processing itself or, ultimately, by public access to the materials retained. 408 F. Supp., at 334-340. This construction is plainly required by the wording of §§ 103 and 104. [4] Regulations implementing §§ 102 and 103, which did not require submission to Congress, and which regulate access and screening by Government archivists, have been promulgated, 41 CFR § 105-63 (1976). Public-access regulations that must be submitted to Congress under § 104 (a) have not, however, become effective. The initial set proposed by the Administrator was disapproved pursuant to § 104 (b) (1) by Senate Resolution. S. Res. 244, 94th Cong., 1st Sess. (1975); 121 Cong. Rec. 28609-28614 (1975). The Senate also disapproved seven provisions of a proposed second set, although that set had been withdrawn. S. Res. 428, 94th Cong., 2d Sess. (1976); 122 Cong. Rec. 10159-10160 (1976). The House disapproved six provisions of a third set. H. R. Res. 1505, 94th Cong., 2d Sess. (1976). The Administrator is of the view that regulations cannot become effective except as a package and consequently is preparing a fourth set for submission to Congress. Brief for Federal Appellees 8-9, n. 4. The District Court therefore concluded that as no regulations under § 104 had yet taken effect, and as such regulations once effective were explicitly made subject to judicial review under § 105, the court could consider only the injury to appellant's constitutionally protected interests allegedly worked by the taking of his Presidential materials into custody for screening by Government archivists. 408 F. Supp., at 339-340. Judge McGowan, writing for the District Court, quoted the following from Watson v. Buck, 313 U. S. 387, 402 (1941): No one can foresee the varying applications of these separate provisions which conceivably might be made. A law which is constitutional as applied in one manner may still contravene the Constitution as applied in another. Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications, courts have in the main found it wiser to delay passing upon the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured. Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case. 408 F. Supp., at 336. Only this Term we applied this principle in an analogous situation in declining to adjudicate the constitutionality of regulations of the Administrator of the Environmental Protection Agency that were in process of revision, stating: For [the Court] to review regulations not yet promulgated, the final form of which has been only hinted at, would be wholly novel. EPA v. Brown, 431 U. S. 99, 104 (1977). See also Thorpe v. Housing Authority, 393 U. S. 268, 283-284 (1969); Rosenberg v. Fleuti, 374 U. S. 449, 451 (1963); United States v. Raines, 362 U. S. 17, 20-22 (1960); Harmon v. Brucker, 355 U. S. 579 (1958). We too, therefore, limit our consideration of the merits of appellant's several constitutional claims to those addressing the facial validity of the provisions of the Act requiring the Administrator to take the recordings and materials into the Government's custody subject to screening by Government archivists. The constitutional questions to be decided are, of course, of considerable importance. They touch the relationship between two of the three coordinate branches of the Federal Government, the Executive and the Legislative, and the relationship of appellant to his Government. They arise in a context unique in the history of the Presidency and present issues that this Court has had no occasion heretofore to address. Judge McGowan, speaking for the District Court, comprehensively canvassed all the claims, and in a thorough opinion, concluded that none had merit. Our independent examination of the issues brings us to the same conclusion, although our analysis differs somewhat on some questions.",The Scope of the Inquiry
+511,109729,2,2,"Having concluded that the separation-of-powers principle is not necessarily violated by the Administrator's taking custody of and screening appellant's papers, we next consider appellant's more narrowly defined claim that the Presidential privilege shields these records from archival scrutiny. We start with what was established in United States v. Nixon, supra —that the privilege is a qualified one. [9] Appellant had argued in that case that in camera inspection by the District Court of Presidential documents and materials subpoenaed by the Special Prosecutor would itself violate the privilege without regard to whether the documents were protected from public disclosure. The Court disagreed, stating that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege . . . . [10] 418 U. S., at 706. The Court recognized that the privilege of confidentiality of Presidential communications derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities, [11] but distinguished a President's broad, undifferentiated claim of public interest in the confidentiality of such [communications] from the more particularized and less qualified privilege relating to the need to protect military, diplomatic, or sensitive national security secrets . . . . Ibid. The Court held that in the case of the general privilege of confidentiality of Presidential communications, its importance must be balanced against the inroads of the privilege upon the effective functioning of the Judicial Branch. This balance was struck against the claim of privilege in that case because the Court determined that the intrusion into the confidentiality of Presidential communications resulting from in camera inspection by the District Court, with all the protection that a district court will be obliged to provide, would be minimal and therefore that the claim was outweighed by [t]he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch . . . . Id., at 706-707. Unlike United States v. Nixon , in which appellant asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case initially involves appellant's assertion of a privilege against the very Executive Branch in whose name the privilege is invoked. The nonfederal appellees rely on this apparent anomaly to contend that only an incumbent President can assert the privilege of the Presidency. Acceptance of that proposition would, of course, end this inquiry. The contention draws on United States v. Reynolds, 345 U. S. 1, 7-8 (1953), where it was said that the privilege belongs to the Government and must be asserted by it: it can neither be claimed nor waived by a private party. The District Court believed that this statement was strong support for the contention, but found resolution of the issue unnecessary. 408 F. Supp., at 343-345. It sufficed, said the District Court, that the privilege, if available to a former President, was at least one that carries much less weight than a claim asserted by the incumbent himself. Id., at 345. It is true that only the incumbent is charged with performance of the executive duty under the Constitution. And an incumbent may be inhibited in disclosing confidences of a predecessor when he believes that the effect may be to discourage candid presentation of views by his contemporary advisers. Moreover, to the extent that the privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, see United States v. Nixon, 418 U. S., at 714; cf. Eastland v. United States Servicemen's Fund, 421 U. S. 491, 501-503 (1975); Dombrowski v. Eastland, 387 U. S. 82, 84-85 (1967) ( per curiam ), a former President is in less need of it than an incumbent. In addition, there are obvious political checks against an incumbent's abuse of the privilege. Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it: This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure. Brief for Federal Appellees 33. At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly. The appellant may legitimately assert the Presidential privilege, of course, only as to those materials whose contents fall within the scope of the privilege recognized in United States v. Nixon, supra . In that case the Court held that the privilege is limited to communications in performance of [a President's] responsibilities, 418 U. S., at 711, of his office, id., at 713, and made in the process of shaping policies and making decisions, id., at 708. Of the estimated 42 million pages of documents and 880 tape recordings whose custody is at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar. The appellant bases his claim of Presidential privilege in this case on the assertion that the potential disclosure of communications given to the appellant in confidence would adversely affect the ability of future Presidents to obtain the candid advice necessary for effective decisionmaking. We are called upon to adjudicate that claim, however, only with respect to the process by which the materials will be screened and catalogued by professional archivists. For any eventual public access will be governed by the guidelines of § 104, which direct the Administrator to take into account the need to protect any party's opportunity to assert any . . . constitutionally based right or privilege, § 104 (a) (5), and the need to return purely private materials to the appellant, § 104 (a)(7). In view of these specific directions, there is no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality. An absolute barrier to all outside disclosure is not practically or constitutionally necessary. As the careful research by the District Court clearly demonstrates, there has never been an expectation that the confidences of the Executive Office are absolute and unyielding. All former Presidents from President Hoover to President Johnson have deposited their papers in Presidential libraries (an example appellant has said he intended to follow) for governmental preservation and eventual disclosure. [12] The screening processes for sorting materials for lodgment in these libraries also involved comprehensive review by archivists, often involving materials upon which access restrictions ultimately have been imposed. 408 F. Supp., at 347. The expectation of the confidentiality of executive communications thus has always been limited and subject to erosion over time after an administration leaves office. We are thus left with the bare claim that the mere screening of the materials by the archivists will impermissibly interfere with candid communication of views by Presidential advisers. [13] We agree with the District Court that, thus framed, the question is readily resolved. The screening constitutes a very limited intrusion by personnel in the Executive Branch sensitive to executive concerns. These very personnel have performed the identical task in each of the Presidential libraries without any suggestion that such activity has in any way interfered with executive confidentiality. Indeed, in light of this consistent historical practice, past and present executive officials must be well aware of the possibility that, at some time in the future, their communications may be reviewed on a confidential basis by professional archivists. Appellant has suggested no reason why review under the instant Act, rather than the Presidential Libraries Act, is significantly more likely to impair confidentiality, nor has he called into question the District Court's finding that the archivists' record for discretion in handling confidential material is unblemished. 408 F. Supp., at 347. Moreover, adequate justifications are shown for this limited intrusion into executive confidentiality comparable to those held to justify the in camera inspection of the District Court sustained in United States v. Nixon, supra . Congress' purposes in enacting the Act are exhaustively treated in the opinion of the District Court. The legislative history of the Act clearly reveals that, among other purposes, Congress acted to establish regular procedures to deal with the perceived need to preserve the materials for legitimate historical and governmental purposes. [14] An incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. [15] Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. [16] Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals. Other substantial public interests that led Congress to seek to preserve appellant's materials were the desire to restore public confidence in our political processes by preserving the materials as a source for facilitating a full airing of the events leading to appellant's resignation, and Congress' need to understand how those political processes had in fact operated in order to gauge the necessity for remedial legislation. Thus by preserving these materials, the Act may be thought to aid the legislative process and thus to be within the scope of Congress' broad investigative power, see, e. g., Eastland v. United States Servicemen's Fund, 421 U. S. 491 (1975). And, of course, the Congress repeatedly referred to the importance of the materials to the Judiciary in the event that they shed light upon issues in civil or criminal litigation, a social interest that cannot be doubted. See United States v. Nixon, supra. [17] In light of these objectives, the scheme adopted by Congress for preservation of the appellant's Presidential materials cannot be said to be overbroad. It is true that among the voluminous materials to be screened by archivists are some materials that bear no relationship to any of these objectives (and whose prompt return to appellant is therefore mandated by § 104 (a) (7)). But these materials are commingled with other materials whose preservation the Act requires, for the appellant, like his predecessors, made no systematic attempt to segregate official, personal, and private materials. 408 F. Supp., at 355. Even individual documents and tapes often intermingle communications relating to governmental duties, and of great interest to historians or future policymakers, with private and confidential communications. Ibid. Thus, as in the Presidential libraries, the intermingled state of the materials requires the comprehensive review and classification contemplated by the Act if Congress' important objectives are to be furthered. In the course of that process, the archivists will be required to view the small fraction of the materials that implicate Presidential confidentiality, as well as personal and private materials to be returned to appellant. But given the safeguards built into the Act to prevent disclosure of such materials and the minimal nature of the intrusion into the confidentiality of the Presidency, we believe that the claims of Presidential privilege clearly must yield to the important congressional purposes of preserving the materials and maintaining access to them for lawful governmental and historical purposes. In short, we conclude that the screening process contemplated by the Act will not constitute a more severe intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon, 418 U. S., at 706. We must, of course, presume that the Administrator and the career archivists concerned will carry out the duties assigned to them by the Act. Thus, there is no basis for appellant's claim that the Act reverses the presumption in favor of confidentiality of Presidential papers recognized in United States v. Nixon . Appellant's right to assert the privilege is specifically preserved by the Act. The guideline provisions on their face are as broad as the privilege itself. If the broadly written protections of the Act should nevertheless prove inadequate to safeguard appellant's rights or to prevent usurpation of executive powers, there will be time enough to consider that problem in a specific factual context. For the present, we hold, in agreement with the District Court, that the Act on its face does not violate the Presidential privilege.",Presidential Privilege
+512,109729,1,7,"
+Finally, we address appellant's argument that the Act constitutes a bill of attainder proscribed by Art. I, § 9, of the Constitution. [30] His argument is that Congress acted on the premise that he had engaged in `misconduct,' was an `unreliable custodian' of his own documents, and generally was deserving of a legislative judgment of blameworthiness, Brief for Appellant 132-133. Thus, he argues, the Act is pervaded with the key features of a bill of attainder: a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial. See United States v. Brown, 381 U. S. 437, 445, 447 (1965); United States v. Lovett, 328 U. S. 303, 315-316 (1946); Ex parte Garland, 4 Wall. 333, 377 (1867); Cummings v. Missouri, 4 Wall. 277, 323 (1867). Appellant's argument relies almost entirely upon United States v. Brown, supra , the Court's most recent decision addressing the scope of the Bill of Attainder Clause. It is instructive, therefore, to sketch the broad outline of that case. Brown invalidated § 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. § 504, that made it a crime for a Communist Party member to serve as an officer of a labor union. After detailing the infamous history of bills of attainder, the Court found that the Bill of Attainder Clause was an important ingredient of the doctrine of separation of powers, one of the organizing principles of our system of government. 381 U. S., at 442-443. Just as Art. III confines the Judiciary to the task of adjudicating concrete cases or controversies, so too the Bill of Attainder Clause was found to reflect . . . the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. 381 U. S., at 445. Brown thus held that § 504 worked a bill of attainder by focusing upon easily identifiable members of a class—members of the Communist Party—and imposing on them the sanction of mandatory forfeiture of a job or office, long deemed to be punishment within the contemplation of the Bill of Attainder Clause. See, e. g., United States v. Lovett, supra, at 316; Cummings v. Missouri, supra, at 320. Brown, Lovett, and earlier cases unquestionably gave broad and generous meaning to the constitutional protection against bills of attainder. But appellant's proposed reading is far broader still. In essence, he argues that Brown establishes that the Constitution is offended whenever a law imposes undesired consequences on an individual or on a class that is not defined at a proper level of generality. The Act in question therefore is faulted for singling out appellant, as opposed to all other Presidents or members of the Government, for disfavored treatment. Appellant's characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality. [31] Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment. United States v. Lovett, supra, at 324 (Frankfurter, J., concurring). [32] However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine, [33] invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals. [34] In short, while the Bill of Attainder Clause serves as an important bulwark against tyranny, United States v. Brown, 381 U. S., at 443, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Thus, in the present case, the Act's specificity—the fact that it refers to appellant by name—does not automatically offend the Bill of Attainder Clause. Indeed, viewed in context, the focus of the enactment can be fairly and rationally understood. It is true that Title I deals exclusively with appellant's papers. But Title II casts a wider net by establishing a special commission to study and recommend appropriate legislation regarding the preservation of the records of future Presidents and all other federal officials. In this light, Congress' action to preserve only appellant's records is easily explained by the fact that at the time of the Act's passage, only his materials demanded immediate attention. The Presidential papers of all former Presidents from Hoover to Johnson were already housed in functioning Presidential libraries. Congress had reason for concern solely with the preservation of appellant's materials, for he alone had entered into a depository agreement, the Nixon-Sampson agreement, which by its terms called for the destruction of certain of the materials. Indeed, as the federal appellees argue, appellant's depository agreement . . . created an imminent danger that the tape recordings would be destroyed if appellant, who had contracted phlebitis, were to die. Brief for Federal Appellees 41. In short, appellant constituted a legitimate class of one, and this provides a basis for Congress' decision to proceed with dispatch with respect to his materials while accepting the status of his predecessors' papers and ordering the further consideration of generalized standards to govern his successors. Moreover, even if the specificity element were deemed to be satisfied here, the Bill of Attainder Clause would not automatically be implicated. Forbidden legislative punishment is not involved merely because the Act imposes burdensome consequences. Rather, we must inquire further whether Congress, by lodging appellant's materials in the custody of the General Services Administration pending their screening by Government archivists and the promulgation of further regulations, inflict[ed] punishment within the constitutional proscription against bills of attainder. United States v. Lovett, 328 U. S., at 315; see also United States v. Brown, supra, at 456-460; Cummings v. Missouri, 4 Wall., at 320.
+
+The infamous history of bills of attainder is a useful starting point in the inquiry whether the Act fairly can be characterized as a form of punishment leveled against appellant. For the substantial experience of both England and the United States with such abuses of parliamentary and legislative power offers a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of Art. I, § 9. A statutory enactment that imposes any of those sanctions on named or identifiable individuals would be immediately constitutionally suspect. In England a bill of attainder originally connoted a parliamentary Act sentencing a named individual or identifiable members of a group to death. [35] Article I, § 9, however, also proscribes enactments originally characterized as bills of pains and penalties, that is, legislative Acts inflicting punishment other than execution. United States v. Lovett, supra, at 323-324 (Frankfurter, J., concurring); Cummings v. Missouri, supra, at 323; Z. Chafee, Jr., Three Human Rights in the Constitution of 1787, p. 97 (1956). Generally addressed to persons considered disloyal to the Crown or State, pains and penalties historically consisted of a wide array of punishments: commonly included were imprisonment, [36] banishment, [37] and the punitive confiscation of property by the sovereign. [38] Our country's own experience with bills of attainder resulted in the addition of another sanction to the list of impermissible legislative punishments: a legislative enactment barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively branded as disloyal. See, e. g., Cummings v. Missouri, supra (barring clergymen from ministry in the absence of subscribing to a loyalty oath); United States v. Lovett, supra (barring named individuals from Government employment); United States v. Brown, supra (barring Communist Party members from offices in labor unions). Needless to say, appellant cannot claim to have suffered any of these forbidden deprivations at the hands of the Congress. While it is true that Congress ordered the General Services Administration to retain control over records that appellant claims as his property, [39] § 105 of the Act makes provision for an award by the District Court of just compensation. This undercuts even a colorable contention that the Government has punitively confiscated appellant's property, for the owner [thereby] is to be put in the same position monetarily as he would have occupied if his property had not been taken. United States v. Reynolds, 397 U. S. 14, 16 (1970); accord, United States v. Miller, 317 U. S. 369, 373 (1943). Thus, no feature of the challenged Act falls within the historical meaning of legislative punishment.
+But our inquiry is not ended by the determination that the Act imposes no punishment traditionally judged to be prohibited by the Bill of Attainder Clause. Our treatment of the scope of the Clause has never precluded the possibility that new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee. The Court, therefore, often has looked beyond mere historical experience and has applied a functional test of the existence of punishment, analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes. [40] Cummings v. Missouri, 4 Wall., at 319-320; Hawker v. New York, 170 U. S. 189, 193-194 (1898); Dent v. West Virginia, 129 U. S. 114, 128 (1889); Trop v. Dulles, 356 U. S. 86, 96-97 (1958) (plurality opinion); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers. Application of the functional approach to this case leads to rejection of appellant's argument that the Act rests upon a congressional determination of his blameworthiness and a desire to punish him. For, as noted previously, see supra, at 452-454, legitimate justifications for passage of the Act are readily apparent. First, in the face of the Nixon-Sampson agreement which expressly contemplated the destruction of some of appellant's materials, Congress stressed the need to preserve [i]nformation included in the materials of former President Nixon [that] is needed to complete the prosecutions of Watergate-related crimes. H. R. Rep. No. 93-1507, p. 2 (1974). Second, again referring to the Nixon-Sampson agreement, Congress expressed its desire to safeguard the public interest in gaining appropriate access to materials of the Nixon Presidency which are of general historical significance. The information in these materials will be of great value to the political health and vitality of the United States. Ibid. [41] Indeed, these same objectives are stated in the text of the Act itself, § 104 (a), note following 44 U. S. C. § 2107 (1970 ed., Supp. V), where Congress instructs the General Services Administration to promulgate regulations that further these ends and at the same time protect the constitutional and legal rights of any individual adversely affected by the Administrator's retention of appellant's materials. Evaluated in terms of these asserted purposes, the law plainly must be held to be an act of nonpunitive legislative policymaking. Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress' responsibility to the due process of law in the fair administration of criminal justice, United States v. Nixon, 418 U. S., at 713, and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to the discovery of truth within the bounds set by law. Branzburg v. Hayes, 408 U. S. 665, 688 (1972); Blackmer v. United States, 284 U. S. 421, 438 (1932); Blair v. United States, 250 U. S. 273, 281 (1919). Similarly, Congress' interest in and expansive authority to act in preservation of monuments and records of historical value to our national heritage are fully established. United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896); Roe v. Kansas, 278 U. S. 191 (1929). [42] A legislature thus acts responsibly in seeking to accomplish either of these objectives. Neither supports an implication of a legislative policy designed to inflict punishment on an individual.
+A third recognized test of punishment is strictly a motivational one: inquiring whether the legislative record evinces a congressional intent to punish. See, e. g., United States v. Lovett, 328 U. S., at 308-314; Kennedy v. Mendoza-Martinez, supra, at 169-170. The District Court unequivocally found: There is no evidence presented to us, nor is there any to be found in the legislative record, to indicate that Congress' design was to impose a penalty upon Mr. Nixon . . . as punishment for alleged past wrongdoings. . . . The legislative history leads to only one conclusion, namely, that the Act before us is regulatory and not punitive in character. 408 F. Supp., at 373 (emphasis omitted). We find no cogent reason for disagreeing with this conclusion. First, both Senate and House Committee Reports, in formally explaining their reasons for urging passage of the Act, expressed no interest in punishing or penalizing appellant. Rather, the Reports justified the Act by reference to objectives that fairly and properly lie within Congress' legislative competence: preserving the availability of judicial evidence and of historically relevant materials. Supra, at 476-478. More specifically, it seems clear that the actions of both Houses of Congress were predominantly precipitated by a resolve to undo the recently negotiated Nixon-Sampson agreement, the terms of which departed from the practice of former Presidents in that they expressly contemplated the destruction of certain Presidential materials. [43] Along these lines, H. R. Rep. No. 93-1507, supra, at 2, stated: Despite the overriding public interest in preserving these materials . . . [the] Administrator of General Services entered into an agreement . . . which, if implemented, could seriously limit access to these records and . . . result in the destruction of a substantial portion of them. See also S. Rep. No. 93-1181, p. 4 (1974). The relevant Committee Reports thus cast no aspersions on appellant's personal conduct and contain no condemnation of his behavior as meriting the infliction of punishment. Rather, they focus almost exclusively on the meaning and effect of an agreement recently announced by the General Services Administration which most Members of Congress perceived to be inconsistent with the public interest. Nor do the floor debates on the measure suggest that Congress was intent on encroaching on the judicial function of punishing an individual for blameworthy offenses. When one of the opponents of the legislation, mischaracterizing the safeguards embodied in the bill, [44] stated that it is one which partakes of the characteristics of a bill of attainder . . . , 120 Cong. Rec. 33872 (1974) (Sen. Hruska), a key sponsor of the measure responded by expressly denying any intention of determining appellant's blameworthiness or imposing punitive sanctions: This bill does not contain a word to the effect that Mr. Nixon is guilty of any violation of the law. It does not inflict any punishment on him. So it has no more relation to a bill of attainder . . . . than my style of pulchritude is to be compared to that of the Queen of Sheba. Id., at 33959-33960 (Sen. Ervin). In this respect, the Act stands in marked contrast to that invalidated in United States v. Lovett, 328 U. S., at 312, where a House Report expressly characterized individuals as subversive. . . and . . . unfit . . . to continue in Government employment. H. R. Rep. No. 448, 78th Cong., 1st Sess., 6 (1943). We, of course, do not suggest that such a formal legislative announcement of moral blameworthiness or punishment is necessary to an unlawful bill of attainder. United States v. Lovett, supra, at 316. But the decided absence from the legislative history of any congressional sentiments expressive of this purpose is probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge—or, worse still, lynch mob. Cf. Z. Chafee, supra, at 161. [45] No such legislative overreaching is involved here. We also agree with the District Court that specific aspects of the Act . . . just do not square with the claim that the Act was a punitive measure. 408 F. Supp., at 373. Whereas appellant complains that the Act has for some two years deprived him of control over the materials in question, Brief for Appellant 140, the Congress placed the materials under the auspices of the General Services Administration, § 101, note following 44 U. S. C. § 2107 (1970 ed., Supp. V), the same agency designated in the Nixon-Sampson agreement as depository of the documents for a minimum three-year period, App. 40. Whereas appellant complains that the Act deprives him of ready access to the materials, Brief for Appellant 140, the Act provides that Richard M. Nixon, or any person whom he may designate in writing, shall at all times have access to the tape recordings and other materials. . ., § 102 (c). [46] The District Court correctly construed this as safeguarding appellant's right to inspect, copy, and use the materials in issue, 408 F. Supp., at 375, paralleling the right to make reproductions contained in the Nixon-Sampson agreement, App. 40. And even if we assume that there is merit in appellant's complaint that his property has been confiscated, Brief for Appellant 140, the Act expressly provides for the payment of just compensation under § 105 (c); see supra, at 475. Other features of the Act further belie any punitive interpretation. In promulgating regulations under the Act, the General Services Administration is expressly directed by Congress to protect appellant's or any party's opportunity to assert any legally or constitutionally based right or privilege. . . . § 104 (a) (5). More importantly, the Act preserves for appellant all of the protections that inhere in a judicial proceeding, for § 105 (a) not only assures district court jurisdiction and judicial review over all his legal claims, but commands that any such challenge asserted by appellant shall have priority on the docket of such court over other cases. A leading sponsor of the bill emphasized that this expedited treatment is expressly designed to protect Mr. Nixon's property, or other legal rights . . . . 120 Cong. Rec. 33854 (1974) (Sen. Ervin). Finally, the Congress has ordered the General Services Administration to establish regulations that recognize the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the articulated objectives of the Act, § 104 (a) (7). While appellant obviously is not set at ease by these precautions and safeguards, they confirm the soundness of the opinion given the Senate by the law division of the Congressional Research Service: [B]ecause the proposed bill does not impose criminal penalties or other punishment, it would not appear to violate the Bill of Attainder Clause. 120 Cong. Rec. 33853 (1974). [47] One final consideration should be mentioned in light of the unique posture of this controversy. In determining whether a legislature sought to inflict punishment on an individual, it is often useful to inquire into the existence of less burdensome alternatives by which that legislature (here Congress) could have achieved its legitimate nonpunitive objectives. Today, in framing his challenge to the Act, appellant contends that such an alternative was readily available: If Congress had provided that the Attorney General or the Administrator of General Services could institute a civil suit in an appropriate federal court to enjoin disposition . . . of presidential historical materials . . . by any person who could be shown to be an `unreliable custodian' or who had `engaged in misconduct' or who `would violate a criminal prohibition,' the statute would have left to judicial determination, after a fair proceeding, the factual allegations regarding Mr. Nixon's blameworthiness. Brief for Appellant 137. We have no doubt that Congress might have selected this course. It very well may be, however, that Congress chose not to do so on the view that a full-fledged judicial inquiry into appellant's conduct and reliability would be no less punitive and intrusive than the solution actually adopted. For Congress doubtless was well aware that just three months earlier, appellant had resisted efforts to subject himself and his records to the scrutiny of the Judicial Branch, United States v. Nixon, 418 U. S. 683 (1974), a position apparently maintained to this day. [48] A rational and fairminded Congress, therefore, might well have decided that the carefully tailored law that it enacted would be less objectionable to appellant than the alternative that he today appears to endorse. To be sure, if the record were unambiguously to demonstrate that the Act represents the infliction of legislative punishment, the fact that the judicial alternative poses its own difficulties would be of no constitutional significance. But the record suggests the contrary, and the unique choice that Congress faced buttresses our conclusion that the Act cannot fairly be read to inflict legislative punishment as forbidden by the Constitution. We, of course, are not blind to appellant's plea that we recognize the social and political realities of 1974. It was a period of political turbulence unprecedented in our history. But this Court is not free to invalidate Acts of Congress based upon inferences that we may be asked to draw from our personalized reading of the contemporary scene or recent history. In judging the constitutionality of the Act, we may only look to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect. We are persuaded that none of these factors is suggestive that the Act is a punitive bill of attainder, or otherwise facially unconstitutional. The judgment of the District Court is Affirmed.",Bill of Attainder Clause
+513,109729,1,3,"
+Under Art. I, § 9, cl. 3, as construed and applied by this Court since the time of Mr. Chief Justice Marshall, Title I violates the Bill of Attainder Clause. In contrast to Title II of Pub. L. 93-526, the Public Documents Act, which establishes a National Study Commission to study questions concerning the preservation of records of all federal officials, Title I commands the Administrator to seize all tape recordings involv[ing] former President Richard M. Nixon and all Presidential historical materials of Richard M. Nixon .... §§ 101 (a)(1), (b)(1). By contrast with Title II, which is general legislation, Title I is special legislation singling out one individual as the target. Although the prohibition against bills of attainder has been addressed only infrequently by this Court, it is now settled beyond dispute that a bill of attainder, within the meaning of Art. I, is by no means the same as a bill of attainder at common law. The definition departed from the common-law concept very early in our history, in a most fundamental way. At common law, the bill was a death sentence imposed by legislative Act. Anything less than death was not a bill of attainder, but was, rather, a bill of pains and penalties. This restrictive definition was recognized tangentially in Marbury v. Madison, 1 Cranch 137, 179 (1803), [29] but the Court soon thereafter rejected conclusively any notion that only a legislative death sentence or even incarceration imposed on named individuals fell within the prohibition. Mr. Chief Justice Marshall firmly settled the matter in 1810, holding that legislative punishment in the form of a deprivation of property was prohibited by the Bill of Attainder Clause: A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both. Fletcher v. Peck, 6 Cranch 87, 138. (Emphasis supplied.) The same point was made 17 years later in Ogden v. Saunders, 12 Wheat. 213, 286, where the Court stated: By classing bills of attainder, ex post facto laws, and laws impairing the obligation of contracts together, the general intent becomes very apparent; it is a general provision against arbitrary and tyrannical legislation over existing rights, whether of person or property.  (Emphasis supplied.) More than 100 years ago this Court struck down statutes which had the effect of preventing defined categories of persons from practicing their professions. Cummings v. Missouri, 4 Wall. 277 (1867) (a priest); Ex parte Garland, 4 Wall. 333 (1867) (a lawyer). Those two cases established more broadly that punishment for purposes of bills of attainder is not limited to criminal sanctions; rather, [t]he deprivation of any rights, civil or political, previously enjoyed, may be punishment. . . . Cummings, supra, at 320. Mr. Chief Justice Warren pointed out that the Constitution, in prohibiting bills of attainder, did not envision a narrow, technical (and therefore soon to be outmoded) prohibition. . . . United States v. Brown, 381 U. S. 437, 442 (1965). To the contrary, the evil was a legislatively imposed deprivation of existing rights, including property rights, directed at named individuals. Mr. Justice Black, in United States v. Lovett, 328 U. S. 303, 315-316 (1946), stated: [The cases] stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. (Emphasis supplied.) The only punishment in Lovett, in fact, was the deprivation of Lovett's salary as a Government employee—an indirect punishment for his bad associations. Under our cases, therefore, bills of attainder require two elements: first, a specific designation of persons or groups as subjects of the legislation, and, second, a Garland-Cummings-Lovett-Brown -type arbitrary deprivation, including deprivation of property rights, without notice, trial, or other hearing. [30] No one disputes that Title I suffers from the first infirmity, since it applies only to one former President. The issue that remains is whether there has been a legislatively mandated deprivation of an existing right.
+Since George Washington's Presidency, our constitutional tradition, without a single exception, has treated Presidential papers as the President's personal property. This view has been congressionally and judicially ratified, both as to the ownership of Presidential papers, Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CC Mass. 1841) (Story, J., sitting as Circuit Justice), and, by the practice of Justices as to ownership of their judicial papers. Congress itself has consistently legislated on this assumption. I have noted earlier that appropriation legislation has been enacted on various occasions providing for Congress' purchase of Presidential papers. See Hearing before a Special Subcommittee of the House Committee on Government Operations on H. J. Res. 330, 84th Cong., 1st Sess., 28 (1955). Those hearings led Congress to establish a nonmandatory system of Presidential libraries, again explicitly recognizing that Presidential papers were the personal property of the Chief Executive. In the floor debate on that measure, Congressman John Moss, a supporter of the legislation, stated: Finally, it should be remembered that Presidential papers belong to the President . . . . 101 Cong. Rec. 9935 (1955). Indeed, in 1955 in testimony pertaining to this proposed legislation, the Archivist of the United States confirmed: The papers of the Presidents have always been considered to be their personal property, both during their incumbency and afterward. This has the sanction of law and custom and has never been authoritatively challenged. Hearing on H. J. Res. 330, supra, at 32. Similarly, the GSA Administrator testified: As a matter of ordinary practice, the President has removed his papers from the White House at the end of his term. This has been in keeping with the tradition and the fact that the papers are the personal property of the retiring Presidents. Id., at 14. (Emphasis supplied.) In keeping with this background, it was not surprising that the Attorney General stated in an opinion in September 1974: To conclude that such materials are not the property of former President Nixon would be to reverse what has apparently been the almost unvaried understanding of all three branches of the Government since the beginning of the Republic, and to call into question the practices of our Presidents since the earliest times. 43 Op. Atty. Gen. No. 1, pp. 1-2 (1974). I see no escape, therefore, from the conclusion that, on the basis of more than 180 years' history, the appellant has been deprived of a property right enjoyed by all other Presidents after leaving office, namely, the control of his Presidential papers. Even more starkly, Title I deprives only one former President of the right vested by statute in other former Presidents by the 1955 Act—the right to have a Presidential library at a facility of his own choosing for the deposit of such Presidential papers as he unilaterally selects. Title I did not purport to repeal the Presidential Libraries Act; that statute remains in effect, available to present and future Presidents, and has already been availed of by former President Ford. The operative effect of Title I, therefore, is to exclude, by name, one former President and deprive him of what his predecessors—and his successor—have already been allowed. This invokes what Mr. Justice Black said in Lovett, could not be constitutionally done: Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. 328 U. S., at 317. (Emphasis supplied.) But apart from Presidential papers generally, Title I on its face contemplates that even the former President's purely family and personal papers and tape recordings are likewise to be taken into custody for whatever period of time is required for review. Some items, such as the originals of tape recordings of the former President's conversations, will never be returned to him under the Act. I need not, and do not, inquire into the motives of Congress in imposing this deprivation on only one named person. Our cases plainly hold that retribution and vindictiveness are not requisite elements of a bill of attainder. The Court appears to overlook that Mr. Chief Justice Warren in United States v. Brown, supra , concluded that retributive motives on the part of Congress were irrelevant to bill-of-attainder analysis. To the contrary, he said flatly: It would be archaic to limit the definition of punishment to `retribution.' Indeed, he expressly noted that bills of attainder had historically been enacted for regulatory or preventive purposes: Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes—that is, the legislature made a judgment, undoubtedly based largely on past acts and associations . . . that a given person or group was likely to cause trouble . . . and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event. 381 U. S., at 458-459. Under the long line of our decisions, therefore, the Court has the heavy burden of demonstrating that legislation which singles out one named individual for deprivation—without any procedural safeguards—of what had for nearly 200 years been treated by all three branches of Government as private property, can survive the prohibition of the Bill of Attainder Clause. In deciding this case, the Court provides the basis for a future Congress to enact yet another Title I, directed at some future former President, or a Member of the House or the Senate because the individual has incurred public disfavor and that of the Congress. Cf. Powell v. McCormack, 395 U. S. 486 (1969). As in United States v. Brown , Title I, in contrast to Title II, does not set forth a generally applicable rule, 381 U. S., at 450; it is beyond doubt special legislation doing precisely the evil against which the prohibitions of the bills of attainder, ex post facto laws, and laws impairing the obligation of contracts . . . were aimed. Ogden v. Saunders, 12 Wheat., at 286. The concurring opinions make explicit what is implicit throughout the Court's opinion, i. e., (a) that Title I would be unconstitutional under separation-of-powers principles if it applied to any other President; (b) that the Court's holding rests on appellant's being a legitimate class of one, ante, at 472; and (c) that the Court's holding will not be a precedent. Ante, at 486. Nothing in our cases supports the analysis of MR. JUSTICE STEVENS, ibid. Under his view, appellant's resignation and subsequent acceptance of a pardon set him apart as a `legitimate class of one.' The two events upon which he relies, however, are beside the point. Correct analysis under the Bill of Attainder Clause focuses solely upon the nature of the measure adopted by Congress, not upon the actions of the target of the legislation. Even if this approach were analytically sound, the two events singled out are relevant only to two possible theories: first, that appellant is culpably deserving of punishment by virtue of his resignation and pardon; or second, that appellant's actions were so unique as to justify legislation confiscating his Presidential materials but not those of any other President. The first point can be disposed of quickly, since the Bill of Attainder Clause was, of course, intended to prevent legislatively imposed deprivations of rights upon persons whom the Legislature thought to be culpably deserving of punishment. The remaining question, then, is whether appellant's uniqueness permits individualized legislation of the sort passed here. It does not. The point is not that Congress is powerless to act as to exigencies arising during or in the immediate aftermath of a particular administration; rather, the point is that Congress cannot punish a particular individual on account of his uniqueness. If Congress had declared forfeited appellant's retirement pay to which he otherwise would be entitled, instead of confiscating his Presidential materials, it would not avoid the bill-of-attainder prohibition to say that appellant was guilty of unprecedented actions setting him apart from his predecessors in office. In short, appellant's uniqueness does not justify serious deprivations of existing rights, including the statutory right abrogated by Title I to establish a Presidential library. The novel arguments advanced in the several concurring opinions serve to emphasize how clearly Title I violates the Bill of Attainder Clause; MR. JUSTICE STEVENS although finding no violation of the Clause, admirably states the case which, for me, demonstrates the unconstitutionality of Title I: The statute before the Court does not apply to all Presidents or former Presidents. It singles out one, by name, for special treatment. Unlike all former Presidents in our history, he is denied custody of his own Presidential papers; he is subjected to the burden of prolonged litigation over the administration of the statute; and his most private papers and conversations are to be scrutinized by Government archivists. The statute implicitly condemns him as an unreliable custodian of his papers. Legislation which subjects a named individual to this humiliating treatment must raise serious questions under the Bill of Attainder Clause. Ante, at 484.",Bill of Attainder
+514,87940,2,2,"3. The estate was limited, to take effect in her absolutely, upon the death of her father. 4. That was an event which must unavoidably happen by the efflux of time. 5. Nothing but her death, before the death of her father, would defeat the remainder limited to her. 6. She had a fixed right of property on the death of the devisor. The period of enjoyment only was deferred and uncertain. 7. The time of enjoyment in possession depended upon the death of her mother. The right was in nowise dependent on that event. 8. Upon the death of her father, she surviving him, her estate, before defeasible, became indefeasible and absolute. We are thus brought to the conclusion, upon technical as well as untechnical grounds, that Mary Jane Barr had, at the time of her death, an indefeasible estate of remainder in fee in the premises in controversy. In the view we have taken of this case, the doctrine of shifting uses can have no application; we therefore forbear to advert to the rules of law relating to that subject. IV. Mary Jane Barr having died unmarried and intestate, it remains to inquire to whom her estate passed. The descent cast was governed by the statute of December 30th, 1815. The first section only applies to the subject. The first part of the fourth clause of that section is as follows: 4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives. This gave the property to the brothers and sisters of the testator, or their legal representatives. The language of this clause is plain and unambiguous. There is nothing in the context, rightly considered, which qualifies, or affects it. There is, we think, no room for construction. [] We concur entirely in the views of the eminent counsel, whose professional opinions, long since written, have been submitted to us. We think the point hardly admits of discussion. If there could be any doubt on the subject, it is removed by the act of 1835, which substitutes for the rule of descent here under consideration, the one which we are asked to apply. Were we to adopt the construction claimed by the plaintiff's counsel, instead of adjudicating we should legislate. That we have no power to do. Our function is to execute the law, not to make it. The instructions given by the court to the jury were in accordance with the views we have expressed. We find no error in the record, and the judgment is AFFIRMED.",She was ascertained and certain.
+515,101752,1,2,"(a) In the case of an individual, by the Circuit Court of Appeals for the circuit whereof he is an inhabitant, or if not an inhabitant of any circuit, then by the Court of Appeals of the District of Columbia. (b) In the case of a person (other than an individual), except as provided in subdivision (c), by the Circuit Court of Appeals for the circuit in which is located the office of the collector to whom such person made the return, or in case such person made no return, then by the Court of Appeals of the District of Columbia. (c) In the case of a corporation which had no principal place of business or principal office or agency in the United States, then by the Court of Appeals of the District of Columbia. (d) In the case of an agreement between the Commissioner and the taxpayer, then by the Circuit Court of Appeals for the circuit, or the Court of Appeals of the District of Columbia, as stipulated in such agreement.",VENUE Sec. 1002. Such decision may be reviewed
+516,108713,1,11,"1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 2. The State may define the term physician, as it has been employed in the preceding paragraphs of this Part XI of this opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. In Doe v. Bolton , post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together. [67] This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.",To summarize and to repeat:
+517,118320,1,1,"1. Fiore owned and operated a hazardous waste disposal facility in Pennsylvania. Scarpone was the facility's general manager. Pennsylvania authorities, while conceding that Fiore and Scarpone possessed a permit to operate the facility, claimed that their deliberate alteration of a monitoring pipe to hide a leakage problem went so far beyond the terms of the permit that the operation took place without a permit at all. A jury convicted them both of having operate[d] a hazardous waste storage, treatment or disposal facility without a permit. Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993); see Commonwealth v. Fiore , CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), p. 2, App. 6 (marking date of conviction as Feb. 18, 1986). The trial court upheld the conviction, despite the existence of a permit, for, in its view, the alterations of the . . . pipe represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was `un-permitted' after the alterations were undertaken . . . . Id., at 48, App. 44. 2. Fiore appealed his conviction to the Pennsylvania Superior Court. See 42 Pa. Cons. Stat. § 742 (1998) (granting the Superior Court jurisdiction over all appeals from a final order of a court of common pleas). That court affirmed the conviction on the basis of the opinion of the court below. Commonwealth v. Fiore , No. 00485 PGH 1988 (May 12, 1989), pp. 2-3, App. 99-100. The Pennsylvania Supreme Court denied Fiore leave to appeal on March 13, 1990; shortly thereafter, Fiore's conviction became final. 3. Fiore's codefendant, Scarpone, appealed his conviction to the Pennsylvania Commonwealth Court. See 42 Pa. Cons. Stat. § 762(a)(2)(ii) (1998) (granting the Commonwealth Court jurisdiction over appeals in regulatory criminal cases). That court noted the existence of a valid permit, found the Commonwealth's interpretation of the statute strained at best, and set Scarpone's conviction aside. Scarpone v. Commonwealth, 141 Pa. Commw. 560, 567, 596 A. 2d 892, 895 (1991). The court wrote: The alteration of the monitoring pipe was clearly a violation of the conditions of the permit. But to say that the alteration resulted in the operation of a new facility which had not been permitted is to engage in a semantic exercise which we cannot accept. . . . [W]e will not let [the provision's] language be stretched to include activities which clearly fall in some other subsection. Ibid. The Pennsylvania Supreme Court affirmed the Commonwealth Court's conclusion. It wrote: [T]he Commonwealth did not make out the crime of operating a waste disposal facility without a permit . . . . Simply put, Mr. Scarpone did have a permit. . . . [T]o conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse. . . . The Commonwealth Court was right in reversing Mr. Scarpone's conviction of operating without a permit when the facility clearly had one. Com- monwealth v. Scarpone, 535 Pa., at 279, 634 A. 2d, at 1112. 4. Fiore again asked the Pennsylvania Supreme Court to review his case, once after that court agreed to review Scarpone's case and twice more after it decided Scarpone. See Appellee's Supplemental App. in No. 97-3288 (CA3), pp. 59, 61 (including docket sheets reflecting Fiore's filings on Jan. 30, 1992, Jan. 24, 1994, and Oct. 18, 1994). The court denied those requests. 5. Fiore then sought collateral relief in the state courts. The Court of Common Pleas of Allegheny County, Pa., refused to grant Fiore's petition for collateral relief—despite Scarpone —because at the time of . . . conviction and direct appeals, the interpretation of the law was otherwise, and [t]he petitioner is not entitled to a retroactive application of the interpretation of the law set forth in Scarpone.  Commonwealth v. Fiore , CC No. 8508740 (Aug. 18, 1994), p. 6. On appeal, the Superior Court affirmed, both because Fiore had previously litigated the claim and because Fiore's direct appeal was no longer pending when the Supreme Court made the ruling which [Fiore] now seeks to have applied to his case. Commonwealth v. Fiore, 445 Pa. Super. 401, 416, 665 A. 2d 1185, 1193 (1995). 6. Fiore sought federal habeas corpus relief. As we previously pointed out, supra, at 25, he argued that Pennsylvania had imprisoned him for conduct which was not criminal under the statutory section charged. App. 194. The Federal District Court, acting on a Magistrate's recommendation, granted the petition. The Court of Appeals for the Third Circuit reversed, however, primarily because it believed that state courts are under no constitutional obligation to apply their decisions retroactively. 149 F. 3d 221, 222 (1998). 7. We subsequently granted Fiore's petition for certiorari to consider whether the Fourteenth Amendment's Due Process Clause requires that his conviction be set aside.",The relevant background circumstances include the following:
+518,111731,3,2,"CAB received public comment on the proposed regulations. Several airlines and the Air Transport Association challenged CAB's regulatory jurisdiction over the airlines. In the interim, Executive Order No. 12250, 3 CFR 298 (1981), transferred responsibility for coordinating the administration of various civil rights statutes, including § 504, from the Secretary of Health and Human Services to the Attorney General. After public comment and consultation with the Attorney General, CAB issued final regulations. 14 CFR pt. 382 (1986), 47 Fed. Reg. 25948 et seq. (1982). The regulations have three subparts. Subpart A prohibits discrimination in air transportation against qualified handicapped persons. Subpart B contains specific, detailed requirements that must be followed by all air carriers in providing service to the handicapped. Subpart C sets forth compliance and enforcement mechanisms. As to all three subparts, CAB adhered to its original position that § 504 supported regulatory jurisdiction only over those carriers that receive funds under § 406 or § 419. CAB concluded, however, that the surviving portion of § 404 — the safe and adequate service clause of § 404(a)(1) — did not support imposition of the specific provisions of subparts B and C on nonsubsidized carriers. Thus, those subparts would apply only to the extent authorized by § 504, that is, to carriers receiving subsidies under § 406 or § 419. CAB concluded, however, that it had authority to extend the reach of subpart A to all air carriers by virtue of § 404(a)(1)'s safe and adequate service clause. The Attorney General approved these regulations.",The Final Regulations
+519,111731,2,2,"Respondents Paralyzed Veterans of America and two other organizations representing handicapped individuals (collectively PVA) [8] brought this action in the Court of Appeals for the District of Columbia Circuit. PVA challenged the substance of some of the regulations, as well as CAB's conclusion regarding its rulemaking authority under § 504. Only the latter claim is before us. On that issue, PVA contended that CAB's interpretation of the scope of its rulemaking authority under § 504 was inconsistent with congressional intent and controlling legal precedent. The Court of Appeals agreed with PVA's position. Paralyzed Veterans of America v. CAB, 243 U. S. App. D. C. 237, 752 F. 2d 694 (1985). In the court's view, § 504 gave CAB jurisdiction over all air carriers by virtue of the extensive program of federal financial assistance to airports under the Airport and Airway Development Act of 1970, 49 U. S. C. § 1714, as amended (1976 ed., Supp. V). [9] The Court of Appeals found an additional source of financial assistance to airlines in the form of the air traffic control system in place at all major airports. The court vacated the regulations to the extent that their application was limited to carriers receiving funds under § 406 or § 419. It instructed DOT — CAB's successor agency after CAB was disbanded [10] — to issue new regulations that would apply to all commercial airlines. We granted certiorari to resolve the question of the scope of DOT's regulatory jurisdiction under § 504. 474 U. S. 918 (1985). We now reverse.",The Court of Appeals Decision
+520,109919,2,1,"Although the Attorney General argues that the finding of bad faith does not overcome the State's Eleventh Amendment protection, he does not question the accuracy of the finding made by the District Court and approved by the Court of Appeals. [13] Nor does he question the settled rule that a losing litigant's bad faith may justify an allowance of fees to the prevailing party. [14] He merely argues that the order requiring that the fees be paid from public funds violates the Eleventh Amendment. In the landmark decision in Ex parte Young, 209 U. S. 123, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. And in Edelman v. Jordan, 415 U. S. 651, when the Court held that the Amendment grants the States an immunity from retroactive monetary relief, it reaffirmed the principle that state officers are not immune from prospective injunctive relief. Aware that the difference between retroactive and prospective relief will not in many instances be that between day and night, id., at 667, the Court emphasized in Edelman that the distinction did not immunize the States from their obligation to obey costly federal-court orders. The cost of compliance is ancillary to the prospective order enforcing federal law. Id., at 668. [15] The line between retroactive and prospective relief cannot be so rigid that it defeats the effective enforcement of prospective relief. The present case requires application of that principle. In exercising their prospective powers under Ex parte Young and Edelman v. Jordan , federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court's most effective enforcement weapons involve financial penalties. A criminal contempt prosecution for resistance to [the court's] lawful . . . order may result in a jail term or a fine. 18 U. S. C. § 401 (1976 ed.). Civil contempt proceedings may yield a conditional jail term or fine. United States v. Mine Workers, 330 U. S. 258, 305. Civil contempt may also be punished by a remedial fine, which compensates the party who won the injunction for the effects of his opponent's noncompliance. Id., at 304; Gompers v. Bucks Stove & Range Co., 221 U. S. 418. If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail. [16] The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief. In this case, the award of attorney's fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. It vindicated the District Court's authority over a recalcitrant litigant. Compensation was not the sole motive for the award; in setting the amount of the fee, the court said that it would make no effort to adequately compensate counsel for the work that they have done or for the time that they have spent on the case. 410 F. Supp., at 285. The court did allow a substantial fee, however, because the allowance thereof may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary. Ibid. [17] We see no reason to distinguish this award from any other penalty imposed to enforce a prospective injunction. [18] Hence the substantive protections of the Eleventh Amendment do not prevent an award of attorney's fees against the Department's officers in their official capacities. Instead of assessing the award against the defendants in their official capacities, the District Court directed that the fees are to be paid out of Department of Correction funds. Ibid. Although the Attorney General objects to the form of the order, [19] no useful purpose would be served by requiring that it be recast in different language. We have previously approved directives that were comparable in their actual impact on the State without pausing to attach significance to the language used by the District Court. [20] Even if it might have been better form to omit the reference to the Department of Correction, the use of that language is surely not reversible error.",The District Court Award
+521,109919,2,2,"Petitioners, as the losing litigants in the Court of Appeals, were ordered to pay an additional $2,500 to counsel for the prevailing parties for their services on this appeal. 548 F. 2d, at 743. The order does not expressly direct the Department of Correction to pay the award, but since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds. It is also clear that this order is not supported by any finding of bad faith. It is founded instead on the provisions of the Civil Rights Attorney's Fees Awards Act of 1976. Pub. L. No. 94-559, 90 Stat. 2641, 42 U. S. C. § 1988 (1976 ed.). The Act declares that, in suits under 42 U. S. C. § 1983 and certain other statutes, federal courts may award prevailing parties reasonable attorney's fees as part of the costs. [21] As this Court made clear in Fitzpatrick v. Bitzer, 427 U. S. 445, Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to any action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state action. See, e. g., 42 U. S. C. § 1983. The legislative history is equally plain: [I]t is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party). S. Rep. No. 94-1011, p. 5 (1976) (footnotes omitted). The House Report is in accord: The greater resources available to governments provide an ample base from which fees can be awarded to the prevailing plaintiff in suits against governmental officials or entities. H. R. Rep. No. 94-1558, p. 7 (1976). The Report adds in a footnote that: Of course, the 11th Amendment is not a bar to the awarding of counsel fees against state governments. Fitzpatrick v. Bitzer. Id., at 7 n. 14. Congress' intent was expressed in deeds as well as words. It rejected at least two attempts to amend the Act and immunize state and local governments from awards. [22] The Attorney General does not quarrel with the rule established in Fitzpatrick v. Bitzer, supra . Rather, he argues that these plain indications of legislative intent are not enough. In his view, Congress must enact express statutory language making the States liable if it wishes to abrogate their immunity. [23] The Attorney General points out that this Court has sometimes refused to impose retroactive liability on the States in the absence of an extraordinarily explicit statutory mandate. See Employees v. Missouri Public Health & Welfare Dept., 411 U. S. 279; see also Edelman v. Jordan, 415 U. S. 651. But these cases concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney's fees as part of the costs. Costs have traditionally been awarded without regard for the States' Eleventh Amendment immunity. The practice of awarding costs against the States goes back to 1849 in this Court. See Missouri v. Iowa, 7 How. 660, 681; North Dakota v. Minnesota, 263 U. S. 583 (collecting cases). The Court has never viewed the Eleventh Amendment as barring such awards, even in suits between States and individual litigants. [24] In Fairmont Creamery Co. v. Minnesota, 275 U. S. 70, the State challenged this Court's award of costs, but we squarely rejected the State's claim of immunity. Far from requiring an explicit abrogation of state immunity, we relied on a statutory mandate that was entirely silent on the question of state liability. [25] The power to make the award was supported by the inherent authority of the Court in the orderly administration of justice as between all parties litigant. Id., at 74. A federal court's interest in orderly, expeditious proceedings justifies [it] in treating the state just as any other litigant and in imposing costs upon it when an award is called for. Id., at 77. [26] Just as a federal court may treat a State like any other litigant when it assesses costs, so also may Congress amend its definition of taxable costs and have the amended class of costs apply to the States, as it does to all other litigants, without expressly stating that it intends to abrogate the States' Eleventh Amendment immunity. For it would be absurd to require an express reference to state litigants whenever a filing fee, or a new item, such as an expert witness' fee, is added to the category of taxable costs. [27] There is ample precedent for Congress' decision to authorize an award of attorney's fees as an item of costs. In England, costs as between solicitor and client, Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 167, are routinely taxed today, and have been awarded since 1278. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 n. 18. In America, although fees are not routinely awarded, there are a large number of statutory and common-law situations in which allowable costs include counsel fees. [28] Indeed, the federal statutory definition of costs, which was enacted before the Civil War and which remains in effect today, includes certain fixed attorney's fees as recoverable costs. [29] In Fairmont Creamery itself, the Court awarded these statutory attorney's fees against the State of Minnesota along with other taxable costs, [30] even though the governing statute said nothing about state liability. It is much too late to single out attorney's fees as the one kind of litigation cost whose recovery may not be authorized by Congress without an express statutory waiver of the States' immunity. [31] Finally, the Attorney General argues that, even if attorney's fees may be awarded against a State, they should not be awarded in this case, because neither the State nor the Department is expressly named as a defendant. Although the Eleventh Amendment prevented respondents from suing the State by name, their injunctive suit against prison officials was, for all practical purposes, brought against the State. The actions of the Attorney General himself show that. His office has defended this action since it began. See Holt I, 300 F. Supp., at 826. The State apparently paid earlier fee awards; and it was the State's lawyers who decided to bring this appeal, thereby risking another award. [32] Like the Attorney General, Congress recognized that suits brought against individual officers for injunctive relief are for all practical purposes suits against the State itself. The legislative history makes it clear that in such suits attorney's fee awards should generally be obtained either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party). S. Rep. No. 94-1011, p. 5 (1976). Awards against the official in his individual capacity, in contrast, were not to be affected by the statute; in injunctive suits they would continue to be awarded only under the traditional bad faith standard recognized by the Supreme Court in Alyeska. Id., at 5 n. 7. There is no indication in this case that the named defendants litigated in bad faith before the Court of Appeals. Consequently, the Department of Correction is the entity intended by Congress to bear the burden of the counsel-fees award. The judgment of the Court of Appeals is accordingly affirmed. It is so ordered.",The Court of Appeals Award
+522,112173,1,2,"On December 10, 1987, John M. Mistretta (petitioner) and another were indicted in the United States District Court for the Western District of Missouri on three counts centering in a cocaine sale. See App. to Pet. for Cert. in No. 87-1904, p. 16a. Mistretta moved to have the promulgated Guidelines ruled unconstitutional on the grounds that the Sentencing Commission was constituted in violation of the established doctrine of separation of powers, and that Congress delegated excessive authority to the Commission to structure the Guidelines. As has been noted, the District Court was not persuaded by these contentions. [5] The District Court rejected petitioner's delegation argument on the ground that, despite the language of the statute, the Sentencing Commission should be judicially characterized as having Executive Branch status, 682 F. Supp., at 1035, and that the Guidelines are similar to substantive rules promulgated by other agencies. Id., at 1034-1035. The court also rejected petitioner's claim that the Act is unconstitutional because it requires Article III federal judges to serve on the Commission. Id., at 1035. The court stated, however, that its opinion does not imply that I have no serious doubts about some parts of the Sentencing Guidelines and the legality of their anticipated operation. Ibid. Petitioner had pleaded guilty to the first count of his indictment (conspiracy and agreement to distribute cocaine, in violation of 21 U. S. C. §§ 846 and 841(b)(1)(B)). The Government thereupon moved to dismiss the remaining counts. That motion was granted. App. to Pet. for Cert. in No. 87-1904, p. 33a. Petitioner was sentenced under the Guidelines to 18 months' imprisonment, to be followed by a 3-year term of supervised release. Id., at 30a, 35a, 37a. The court also imposed a $1,000 fine and a $50 special assessment. Id., at 31a, 40a. Petitioner filed a notice of appeal to the Eighth Circuit, but both petitioner and the United States, pursuant to this Court's Rule 18, petitioned for certiorari before judgment. Because of the imperative public importance of the issue, as prescribed by the Rule, and because of the disarray among the Federal District Courts, [6] we granted those petitions. 486 U. S. 1054 (1988).",This Litigation
+523,112173,1,3,"Petitioner argues that in delegating the power to promulgate sentencing guidelines for every federal criminal offense to an independent Sentencing Commission, Congress has granted the Commission excessive legislative discretion in violation of the constitutionally based nondelegation doctrine. We do not agree. The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that [a]ll legislative Powers herein granted shall be vested in a Congress of the United States, U. S. Const., Art. I, § 1, and we long have insisted that the integrity and maintenance of the system of government ordained by the Constitution mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U. S. 649, 692 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928). So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power. Id., at 409. Applying this intelligible principle test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U. S. 126, 145 (1941) (In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy); see also United States v. Robel, 389 U. S. 258, 274 (1967) (opinion concurring in result). The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function. Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935). Accordingly, this Court has deemed it constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). Until 1935, this Court never struck down a challenged statute on delegation grounds. See Synar v. United States, 626 F. Supp. 1374, 1383 (DC) (three-judge court), aff'd sub nom. Bowsher v. Synar, 478 U. S. 714 (1986). After invalidating in 1935 two statutes as excessive delegations, see A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, and Panama Refining Co. v. Ryan, supra , we have upheld, again without deviation, Congress' ability to delegate power under broad standards. [7] See, e. g., Lichter v. United States, 334 U. S. 742, 785-786 (1948) (upholding delegation of authority to determine excessive profits); American Power & Light Co. v. SEC, 329 U. S., at 105 (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders); Yakus v. United States, 321 U. S. 414, 426 (1944) (upholding delegation to Price Administrator to fix commodity prices that would be fair and equitable, and would effectuate purposes of Emergency Price Control Act of 1942); FPC v. Hope Natural Gas Co., 320 U. S. 591, 600 (1944) (upholding delegation to Federal Power Commission to determine just and reasonable rates); National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943) (upholding delegation to Federal Communications Commission to regulate broadcast licensing as public interest, convenience, or necessity require). In light of our approval of these broad delegations, we harbor no doubt that Congress' delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to assure the meeting of the purposes of sentencing as set forth in the Act; to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records . . . while maintaining sufficient flexibility to permit individualized sentences, where appropriate; and to reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process. 28 U. S. C. § 991(b)(1). Congress further specified four purposes of sentencing that the Commission must pursue in carrying out its mandate: to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed . . . correctional treatment. 18 U. S. C. § 3553(a)(2). In addition, Congress prescribed the specific tool — the guidelines system — for the Commission to use in regulating sentencing. More particularly, Congress directed the Commission to develop a system of sentencing ranges applicable for each category of offense involving each category of defendant. 28 U. S. C. § 994(b). [8] Congress instructed the Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code and could not include sentences in excess of the statutory maxima. Congress also required that for sentences of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment. § 994(b)(2). Moreover, Congress directed the Commission to use current average sentences as a starting point for its structuring of the sentencing ranges. § 994(m). To guide the Commission in its formulation of offense categories, Congress directed it to consider seven factors: the grade of the offense; the aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a particular sentence may have on others; and the current incidence of the offense. §§ 994(c)(1)(7). [9] Congress set forth 11 factors for the Commission to consider in establishing categories of defendants. These include the offender's age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a livelihood. § 994(d)(1)-(11). [10] Congress also prohibited the Commission from considering the race, sex, national origin, creed, and socioeconomic status of offenders, § 994(d), and instructed that the guidelines should reflect the general inappropriateness of considering certain other factors, such as current unemployment, that might serve as proxies for forbidden factors, § 994(e). In addition to these overarching constraints, Congress provided even more detailed guidance to the Commission about categories of offenses and offender characteristics. Congress directed that guidelines require a term of confinement at or near the statutory maximum for certain crimes of violence and for drug offenses, particularly when committed by recidivists. § 994(h). Congress further directed that the Commission assure a substantial term of imprisonment for an offense constituting a third felony conviction, for a career felon, for one convicted of a managerial role in a racketeering enterprise, for a crime of violence by an offender on release from a prior felony conviction, and for an offense involving a substantial quantity of narcotics. § 994(i). Congress also instructed that the guidelines reflect . . . the general appropriateness of imposing a term of imprisonment for a crime of violence that resulted in serious bodily injury. On the other hand, Congress directed that guidelines reflect the general inappropriateness of imposing a sentence of imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense. § 994(j). Congress also enumerated various aggravating and mitigating circumstances, such as, respectively, multiple offenses or substantial assistance to the Government, to be reflected in the guidelines. §§ 994 (l) and (n). In other words, although Congress granted the Commission substantial discretion in formulating guidelines, in actuality it legislated a full hierarchy of punishment — from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives — and stipulated the most important offense and offender characteristics to place defendants within these categories. We cannot dispute petitioner's contention that the Commission enjoys significant discretion in formulating guidelines. The Commission does have discretionary authority to determine the relative severity of federal crimes and to assess the relative weight of the offender characteristics that Congress listed for the Commission to consider. See §§ 994(c) and (d) (Commission instructed to consider enumerated factors as it deems them to be relevant). The Commission also has significant discretion to determine which crimes have been punished too leniently, and which too severely. § 994(m). Congress has called upon the Commission to exercise its judgment about which types of crimes and which types of criminals are to be considered similar for the purposes of sentencing. [11] But our cases do not at all suggest that delegations of this type may not carry with them the need to exercise judgment on matters of policy. In Yakus v. United States, 321 U. S. 414 (1944), the Court upheld a delegation to the Price Administrator to fix commodity prices that in his judgment will be generally fair and equitable and will effectuate the purposes of this Act to stabilize prices and avert speculation. See id., at 420. In National Broadcasting Co. v. United States, 319 U. S. 190 (1943), we upheld a delegation to the Federal Communications Commission granting it the authority to promulgate regulations in accordance with its view of the public interest. In Yakus, the Court laid down the applicable principle: It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework. . . . ..... . . . Only if we could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose . . . . 321 U. S., at 425-426. Congress has met that standard here. The Act sets forth more than merely an intelligible principle or minimal standards. One court has aptly put it: The statute outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations. United States v. Chambless, 680 F. Supp. 793, 796 (ED La. 1988). Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models, Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers. Yakus v. United States, 321 U. S., at 425-426. We have no doubt that in the hands of the Commission the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose of the Act. Sunshine Coal Co. v. Adkins, 310 U. S. 381, 398 (1940).",Delegation of Power
+524,112173,2,1,"The Sentencing Commission unquestionably is a peculiar institution within the framework of our Government. Although placed by the Act in the Judicial Branch, it is not a court and does not exercise judicial power. Rather, the Commission is an independent body comprised of seven voting members including at least three federal judges, entrusted by Congress with the primary task of promulgating sentencing guidelines. 28 U. S. C. § 991(a). Our constitutional principles of separated powers are not violated, however, by mere anomaly or innovation. Setting to one side, for the moment, the question whether the composition of the Sentencing Commission violates the separation of powers, we observe that Congress' decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary. According to express provision of Article III, the judicial power of the United States is limited to Cases and Controversies. See Muskrat v. United States, 219 U. S. 346, 356 (1911). In implementing this limited grant of power, we have refused to issue advisory opinions or to resolve disputes that are not justiciable. See, e. g., Flast v. Cohen, 392 U. S. 83 (1968); United States v. Ferreira, 13 How. 40 (1852). These doctrines help to ensure the independence of the Judicial Branch by precluding debilitating entanglements between the Judiciary and the two political Branches, and prevent the Judiciary from encroaching into areas reserved for the other Branches by extending judicial power to matters beyond those disputes traditionally thought to be capable of resolution through the judicial process. Flast v. Cohen, 392 U. S., at 97; see also United States Parole Comm'n v. Geraghty, 445 U. S., at 396. As a general principle, we stated as recently as last Term that  `executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.'  Morrison v. Olson, 487 U. S., at 677, quoting Buckley v. Valeo, 424 U. S., at 123, citing in turn United States v. Ferreira, supra , and Hayburn's Case, 2 Dall. 409 (1792). Nonetheless, we have recognized significant exceptions to this general rule and have approved the assumption of some nonadjudicatory activities by the Judicial Branch. In keeping with Justice Jackson's Youngstown admonition that the separation of powers contemplates the integration of dispersed powers into a workable Government, we have recognized the constitutionality of a twilight area in which the activities of the separate Branches merge. In his dissent in Myers v. United States, 272 U. S. 52 (1926), Justice Brandeis explained that the separation of powers left to each [Branch] power to exercise, in some respects, functions in their nature executive, legislative and judicial. Id., at 291. That judicial rulemaking, at least with respect to some subjects, falls within this twilight area is no longer an issue for dispute. None of our cases indicate that rulemaking per se is a function that may not be performed by an entity within the Judicial Branch, either because rulemaking is inherently nonjudicial or because it is a function exclusively committed to the Executive Branch. [14] On the contrary, we specifically have held that Congress, in some circumstances, may confer rulemaking authority on the Judicial Branch. In Sibbach v. Wilson & Co., 312 U. S. 1 (1941), we upheld a challenge to certain rules promulgated under the Rules Enabling Act of 1934, which conferred upon the Judiciary the power to promulgate federal rules of civil procedure. See 28 U. S. C. § 2072. We observed: Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States. 312 U. S., at 9-10 (footnote omitted). This passage in Sibbach simply echoed what had been our view since Wayman v. Southard, 10 Wheat. 1, 43 (1825), decided more than a century earlier, where Chief Justice Marshall wrote for the Court that rulemaking power pertaining to the Judicial Branch may be conferred on the judicial department. Discussing this delegation of rulemaking power, the Court found Congress authorized to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment. That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer. Id., at 22. See also Hanna v. Plumer, 380 U. S. 460 (1965). Pursuant to this power to delegate rulemaking authority to the Judicial Branch, Congress expressly has authorized this Court to establish rules for the conduct of its own business and to prescribe rules of procedure for lower federal courts in bankruptcy cases, in other civil cases, and in criminal cases, and to revise the Federal Rules of Evidence. See generally J. Weinstein, Reform of Court Rule-Making Procedures (1977). Our approach to other nonadjudicatory activities that Congress has vested either in federal courts or in auxiliary bodies within the Judicial Branch has been identical to our approach to judicial rulemaking: consistent with the separation of powers, Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary. Following this approach, we specifically have upheld not only Congress' power to confer on the Judicial Branch the rulemaking authority contemplated in the various enabling Acts, but also to vest in judicial councils authority to make `all necessary orders for the effective and expeditious administration of the business of the courts.'  Chandler v. Judicial Council, 398 U. S. 74, 86, n. 7 (1970), quoting 28 U. S. C. § 332 (1970 ed.). Though not the subject of constitutional challenge, by established practice we have recognized Congress' power to create the Judicial Conference of the United States, the Rules Advisory Committees that it oversees, and the Administrative Office of the United States Courts whose myriad responsibilities include the administration of the entire probation service. [15] These entities, some of which are comprised of judges, others of judges and nonjudges, still others of nonjudges only, do not exercise judicial power in the constitutional sense of deciding cases and controversies, but they share the common purpose of providing for the fair and efficient fulfillment of responsibilities that are properly the province of the Judiciary. Thus, although the judicial power of the United States is limited by express provision of Article III to Cases and Controversies, we have never held, and have clearly disavowed in practice, that the Constitution prohibits Congress from assigning to courts or auxiliary bodies within the Judicial Branch administrative or rulemaking duties that, in the words of Chief Justice Marshall, are necessary and proper . . . for carrying into execution all the judgments which the judicial department has power to pronounce. Wayman v. Southard, 10 Wheat., at 22. [16] Because of their close relation to the central mission of the Judicial Branch, such extrajudicial activities are consonant with the integrity of the Branch and are not more appropriate for another Branch. In light of this precedent and practice, we can discern no separation-of-powers impediment to the placement of the Sentencing Commission within the Judicial Branch. As we described at the outset, the sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch. See, e. g., United States v. Addonizio, 442 U. S., at 188-189. For more than a century, federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases and have exercised special authority to determine the sentencing factors to be applied in any given case. Indeed, the legislative history of the Act makes clear that Congress' decision to place the Commission within the Judicial Branch reflected Congress' strong feeling that sentencing has been and should remain primarily a judicial function. Report, at 159. That Congress should vest such rulemaking in the Judicial Branch, far from being incongruous or vesting within the Judiciary responsibilities that more appropriately belong to another Branch, simply acknowledges the role that the Judiciary always has played, and continues to play, in sentencing. [17] Given the consistent responsibility of federal judges to pronounce sentence within the statutory range established by Congress, we find that the role of the Commission in promulgating guidelines for the exercise of that judicial function bears considerable similarity to the role of this Court in establishing rules of procedure under the various enabling Acts. Such guidelines, like the Federal Rules of Criminal and Civil Procedure, are court rules — rules, to paraphrase Chief Justice Marshall's language in Wayman, for carrying into execution judgments that the Judiciary has the power to pronounce. Just as the rules of procedure bind judges and courts in the proper management of the cases before them, so the Guidelines bind judges and courts in the exercise of their uncontested responsibility to pass sentence in criminal cases. In other words, the Commission's functions, like this Court's function in promulgating procedural rules, are clearly attendant to a central element of the historically acknowledged mission of the Judicial Branch. Petitioner nonetheless objects that the analogy between the Guidelines and the rules of procedure is flawed: Although the Judicial Branch may participate in rulemaking and administrative work that is procedural in nature, it may not assume, it is said, the substantive authority over sentencing policy that Congress has delegated to the Commission. Such substantive decisionmaking, petitioner contends, entangles the Judicial Branch in essentially political work of the other Branches and unites both judicial and legislative power in the Judicial Branch. We agree with petitioner that the nature of the Commission's rulemaking power is not strictly analogous to this Court's rulemaking power under the enabling Acts. Although we are loath to enter the logical morass of distinguishing between substantive and procedural rules, see Sun Oil Co. v. Wortman, 486 U. S. 717 (1988) (distinction between substance and procedure depends on context), and although we have recognized that the Federal Rules of Civil Procedure regulate matters falling within the uncertain area between substance and procedure, [and] are rationally capable of classification as either, Hanna v. Plumer, 380 U. S., at 472, we recognize that the task of promulgating rules regulating practice and pleading before federal courts does not involve the degree of political judgment integral to the Commission's formulation of sentencing guidelines. [18] To be sure, all rulemaking is nonjudicial in the sense that rules impose standards of general application divorced from the individual fact situation which ordinarily forms the predicate for judicial action. Also, this Court's rulemaking under the enabling Acts has been substantive and political in the sense that the rules of procedure have important effects on the substantive rights of litigants. [19] Nonetheless, the degree of political judgment about crime and criminality exercised by the Commission and the scope of the substantive effects of its work does to some extent set its rulemaking powers apart from prior judicial rulemaking. Cf. Miller v. Florida, 482 U. S. 423 (1987) (state sentencing guidelines not procedural). We do not believe, however, that the significantly political nature of the Commission's work renders unconstitutional its placement within the Judicial Branch. Our separation-of-powers analysis does not turn on the labeling of an activity as substantive as opposed to procedural, or political as opposed to judicial. See Bowsher v. Synar, 478 U. S., at 749 ([G]overnmental power cannot always be readily characterized with only one . . . labe[l]) (opinion concurring in judgment). Rather, our inquiry is focused on the unique aspects of the congressional plan at issue and its practical consequences in light of the larger concerns that underlie Article III. Commodity Futures Trading Comm'n v. Schor, 478 U. S., at 857. In this case, the practical consequences of locating the Commission within the Judicial Branch pose no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts. First, although the Commission is located in the Judicial Branch, its powers are not united with the powers of the Judiciary in a way that has meaning for separation-of-powers analysis. Whatever constitutional problems might arise if the powers of the Commission were vested in a court, the Commission is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch. The Commission, on which members of the Judiciary may be a minority, is an independent agency in every relevant sense. In contrast to a court's exercising judicial power, the Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines as it sees fit either within the 180-day waiting period, see § 235(a)(1)(B)(ii)(III) of the Act, 98 Stat. 2032, or at any time. In contrast to a court, the Commission's members are subject to the President's limited powers of removal. In contrast to a court, its rulemaking is subject to the notice and comment requirements of the Administrative Procedure Act, 28 U. S. C. § 994(x). While we recognize the continuing vitality of Montesquieu's admonition:  `Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul,'  The Federalist No. 47, p. 326 (J. Cooke ed. 1961) (Madison), quoting Montesquieu, because Congress vested the power to promulgate sentencing guidelines in an independent agency, not a court, there can be no serious argument that Congress combined legislative and judicial power within the Judicial Branch. [20] Second, although the Commission wields rulemaking power and not the adjudicatory power exercised by individual judges when passing sentence, the placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority. Prior to the passage of the Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. It was the everyday business of judges, taken collectively, to evaluate and weigh the various aims of sentencing and to apply those aims to the individual cases that came before them. The Sentencing Commission does no more than this, albeit basically through the methodology of sentencing guidelines, rather than entirely individualized sentencing determinations. Accordingly, in placing the Commission in the Judicial Branch, Congress cannot be said to have aggrandized the authority of that Branch or to have deprived the Executive Branch of a power it once possessed. Indeed, because the Guidelines have the effect of promoting sentencing within a narrower range than was previously applied, the power of the Judicial Branch is, if anything, somewhat diminished by the Act. And, since Congress did not unconstitutionally delegate its own authority, the Act does not unconstitutionally diminish Congress' authority. Thus, although Congress has authorized the Commission to exercise a greater degree of political judgment than has been exercised in the past by any one entity within the Judicial Branch, in the unique context of sentencing, this authorization does nothing to upset the balance of power among the Branches. What Mistretta's argument comes down to, then, is not that the substantive responsibilities of the Commission aggrandize the Judicial Branch, but that that Branch is inevitably weakened by its participation in policymaking. We do not believe, however, that the placement within the Judicial Branch of an independent agency charged with the promulgation of sentencing guidelines can possibly be construed as preventing the Judicial Branch from accomplishing its constitutionally assigned functions. Nixon v. Administrator of General Services, 433 U. S., at 443. Despite the substantive nature of its work, the Commission is not incongruous or inappropriate to the Branch. As already noted, sentencing is a field in which the Judicial Branch long has exercised substantive or political judgment. What we said in Morrison when upholding the power of the Special Division to appoint independent counsel applies with even greater force here: This is not a case in which judges are given power . . . in an area in which they have no special knowledge or expertise. 487 U. S., at 676, n. 13. On the contrary, Congress placed the Commission in the Judicial Branch precisely because of the Judiciary's special knowledge and expertise. Nor do the Guidelines, though substantive, involve a degree of political authority inappropriate for a nonpolitical Branch. Although the Guidelines are intended to have substantive effects on public behavior (as do the rules of procedure), they do not bind or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress. Given their limited reach, the special role of the Judicial Branch in the field of sentencing, and the fact that the Guidelines are promulgated by an independent agency and not a court, it follows that as a matter of practical consequences the location of the Sentencing Commission within the Judicial Branch simply leaves with the Judiciary what long has belonged to it. In sum, since substantive judgment in the field of sentencing has been and remains appropriate to the Judicial Branch, and the methodology of rulemaking has been and remains appropriate to that Branch, Congress' considered decision to combine these functions in an independent Sentencing Commission and to locate that Commission within the Judicial Branch does not violate the principle of separation of powers.",Location of the Commission
+525,112173,2,2,"We now turn to petitioner's claim that Congress' decision to require at least three federal judges to serve on the Commission and to require those judges to share their authority with nonjudges undermines the integrity of the Judicial Branch. The Act provides in part: At least three of [the Commission's] members shall be Federal judges selected [by the President] after considering a list of six judges recommended to the President by the Judicial Conference of the United States. 28 U. S. C. § 991(a). Petitioner urges us to strike down the Act on the ground that its requirement of judicial participation on the Commission unconstitutionally conscripts individual federal judges for political service and thereby undermines the essential impartiality of the Judicial Branch. We find Congress' requirement of judicial service somewhat troublesome, but we do not believe that the Act impermissibly interferes with the functioning of the Judiciary. The text of the Constitution contains no prohibition against the service of active federal judges on independent commissions such as that established by the Act. The Constitution does include an Incompatibility Clause applicable to national legislators: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. U. S. Const., Art. I, § 6, cl. 2. No comparable restriction applies to judges, and we find it at least inferentially meaningful that at the Constitutional Convention two prohibitions against plural officeholding by members of the Judiciary were proposed, but did not reach the floor of the Convention for a vote. [21] Our inferential reading that the Constitution does not prohibit Article III judges from undertaking extrajudicial duties finds support in the historical practice of the Founders after ratification. Our early history indicates that the Framers themselves did not read the Constitution as forbidding extrajudicial service by federal judges. The first Chief Justice, John Jay, served simultaneously as Chief Justice and as Ambassador to England, where he negotiated the treaty that bears his name. Oliver Ellsworth served simultaneously as Chief Justice and as Minister to France. While he was Chief Justice, John Marshall served briefly as Secretary of State and was a member of the Sinking Fund Commission with responsibility for refunding the Revolutionary War debt. All these appointments were made by the President with the Advice and Consent of the Senate. Thus, at a minimum, both the Executive and Legislative Branches acquiesced in the assumption of extrajudicial duties by judges. In addition, although the records of Congress contain no reference to the confirmation debate, Charles Warren, in his history of this Court, reports that the Senate specifically rejected by a vote of 18 to 8 a resolution proposed during the debate over Jay's nomination to the effect that such extrajudicial service was contrary to the spirit of the Constitution. 1 C. Warren, The Supreme Court in United States History 119 (rev. ed. 1937). This contemporaneous practice by the Founders themselves is significant evidence that the constitutional principle of separation of powers does not absolutely prohibit extrajudicial service. See Bowsher v. Synar, 478 U. S., at 723-724 (actions by Members of the First Congress provide contemporaneous and weighty evidence about the meaning of the Constitution). [22] Subsequent history, moreover, reveals a frequent and continuing, albeit controversial, practice of extrajudicial service. [23] In 1877, five Justices served on the Election Commission that resolved the hotly contested Presidential election of 1876, where Samuel J. Tilden and Rutherford B. Hayes were the contenders. Justices Nelson, Fuller, Brewer, Hughes, Day, Roberts, and Van Devanter served on various arbitral commissions. Justice Roberts was a member of the commission organized to investigate the attack on Pearl Harbor. Justice Jackson was one of the prosecutors at the Nuremberg trials; and Chief Justice Warren presided over the commission investigating the assassination of President Kennedy. [24] Such service has been no less a practice among lower court federal judges. [25] While these extrajudicial activities spawned spirited discussion and frequent criticism, and although some of the judges who undertook these duties sometimes did so with reservation and may have looked back on their service with regret, traditional ways of conducting government . . . give meaning to the Constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 610 (concurring opinion). Our 200-year tradition of extrajudicial service is additional evidence that the doctrine of separated powers does not prohibit judicial participation in certain extrajudicial activity. [26] Furthermore, although we have not specifically addressed the constitutionality of extrajudicial service, two of our precedents reflect at least an early understanding by this Court that the Constitution does not preclude judges from assuming extrajudicial duties in their individual capacities. In Hayburn's Case, 2 Dall. 409 (1792), the Court considered a request for a writ of mandamus ordering a Circuit Court to execute a statute empowering federal and state courts to set pensions for disabled Revolutionary War veterans. The statute authorized the courts to determine monthly disability payments, but it made those determinations reviewable by the Secretary of War. Because Congress by an amendment of the statute rendered the case moot, the Court did not pass on the constitutional issue. Mr. Dallas, in reporting the case, included in the margin three Circuit Court rulings on the statute. All three concluded that the powers conferred could not be performed by an Article III court. The judicial Power of the United States did not extend to duties more properly performed by the Executive. See Morrison v. Olson, 487 U. S., at 677-678, n. 15 (characterizing Hayburn's Case ). As this Court later observed in United States v. Ferreira, 13 How. 40 (1852), however, the New York Circuit, in 1791, with a bench consisting of Chief Justice Jay, Justice Cushing, and District Judge Duane, believed that individual judges acting not in their judicial capacities but as individual commissioners could exercise the duties conferred upon them by the statute. Neither of the other two courts expressed a definitive view whether judges acting as commissioners could make disability determinations reviewable by the Secretary of War. In Ferreira, however, this Court concluded that although the Circuit Courts were not fully in agreement as to whether the statute could be construed as conferring the duties on the judges as commissioners, if the statute was subject to that construction there seems to have been no doubt, at that time, but that they might constitutionally exercise it, and the Secretary constitutionally revise their decisions. Id., at 50. Ferreira itself concerned a statute authorizing a Federal District Court in Florida to adjudicate claims for losses for which the United States was responsible under the 1819 treaty by which Spain ceded Florida to the United States. As in Hayburn's Case, the court's determination was to be reported to an executive officer, the Secretary of the Treasury, who would exercise final judgment as to whether the claims should be paid. 13 How., at 45-47. This Court recognized that the powers conferred on the District Court were judicial in their nature, in the sense that they called for judgment and discretion. Id., at 48. Nonetheless, we concluded that those powers were not judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States. Ibid. Because the District Court's decision was not an exercise of judicial power, this Court found itself without jurisdiction to hear the appeal. Id., at 51-52. We did not conclude in Ferreira, however, that Congress could not confer on a federal judge the function of resolving administrative claims. On the contrary, we expressed general agreement with the view of some of the judges in Hayburn's Case that while such administrative duties could not be assigned to a court, or to judges acting as part of a court, such duties could be assigned to judges acting individually as commissioners. Although we did not decide the question, we expressed reservation about whether the District Judge in Florida could act legitimately as a commissioner since he was not appointed as such by the President pursuant to his Article II power to appoint officers of the United States. 13 How., at 51. In sum, Ferreira, like Hayburn's Case, suggests that Congress may authorize a federal judge, in an individual capacity, to perform an executive function without violating the separation of powers. Accord, United States v. Yale Todd (1794) (unreported decision discussed in the margin of the opinion in Ferreira, 13 How., at 52-53). In light of the foregoing history and precedent, we conclude that the principle of separation of powers does not absolutely prohibit Article III judges from serving on commissions such as that created by the Act. The judges serve on the Sentencing Commission not pursuant to their status and authority as Article III judges, but solely because of their appointment by the President as the Act directs. Such power as these judges wield as Commissioners is not judicial power; it is administrative power derived from the enabling legislation. Just as the nonjudicial members of the Commission act as administrators, bringing their experience and wisdom to bear on the problems of sentencing disparity, so too the judges, uniquely qualified on the subject of sentencing, assume a wholly administrative role upon entering into the deliberations of the Commission. In other words, the Constitution, at least as a per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time. This is not to suggest, of course, that every kind of extrajudicial service under every circumstance necessarily accords with the Constitution. That the Constitution does not absolutely prohibit a federal judge from assuming extrajudicial duties does not mean that every extrajudicial service would be compatible with, or appropriate to, continuing service on the bench; nor does it mean that Congress may require a federal judge to assume extrajudicial duties as long as the judge is assigned those duties in an individual, not judicial, capacity. The ultimate inquiry remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch. [27] With respect to the Sentencing Commission, we understand petitioner to argue that the service required of at least three judges presents two distinct threats to the integrity of the Judicial Branch. Regardless of constitutionality, this mandatory service, it is said, diminishes the independence of the Judiciary. See Brief for Petitioner 28. It is further claimed that the participation of judges on the Commission improperly lends judicial prestige and an aura of judicial impartiality to the Commission's political work. The involvement of Article III judges in the process of policymaking, petitioner asserts,  `[w]eakens confidence in the disinterestedness of the judicatory functions.'  Ibid., quoting F. Frankfurter, Advisory Opinions, in 1 Encyclopedia of the Social Sciences 475, 478 (1930). In our view, petitioner significantly overstates the mandatory nature of Congress' directive that at least three members of the Commission shall be federal judges, as well as the effect of this service on the practical operation of the Judicial Branch. Service on the Commission by any particular judge is voluntary. The Act does not conscript judges for the Commission. No Commission member to date has been appointed without his consent and we have no reason to believe that the Act confers upon the President any authority to force a judge to serve on the Commission against his will. [28] Accordingly, we simply do not face the question whether Congress may require a particular judge to undertake the extrajudicial duty of serving on the Commission. In Chandler v. Judicial Council, 398 U. S. 74 (1970), we found no constitutional obstacle preventing Congress from vesting in the Circuit Judicial Councils, as administrative bodies, authority to administer  `the business of the courts within [each] circuit.'  Id., at 86, n. 7, quoting 28 U. S. C. § 332 (1970 ed.). [29] Indeed, Congress has created numerous nonadjudicatory bodies, such as the Judicial Conference, that are composed entirely, or in part, of federal judges. See 28 U. S. C. §§ 331, 332; see generally Meador, The Federal Judiciary and Its Future Administration, 65 Va. L. Rev. 1031 (1979). Accordingly, absent a more specific threat to judicial independence, the fact that Congress has included federal judges on the Commission does not itself threaten the integrity of the Judicial Branch. Moreover, we cannot see how the service of federal judges on the Commission will have a constitutionally significant practical effect on the operation of the Judicial Branch. We see no reason why service on the Commission should result in widespread judicial recusals. That federal judges participate in the promulgation of guidelines does not affect their or other judges' ability impartially to adjudicate sentencing issues. Cf. Mississippi Publishing Corp. v. Murphree, 326 U. S. 438 (1946) (that this Court promulgated the Federal Rules of Civil Procedure did not foreclose its consideration of challenges to their validity). While in the abstract a proliferation of commissions with congressionally mandated judiciary participation might threaten judicial independence by exhausting the resources of the Judicial Branch, that danger is far too remote for consideration here. We are somewhat more troubled by petitioner's argument that the Judiciary's entanglement in the political work of the Commission undermines public confidence in the disinterestedness of the Judicial Branch. While the problem of individual bias is usually cured through recusal, no such mechanism can overcome the appearance of institutional partiality that may arise from judiciary involvement in the making of policy. The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action. Although it is a judgment that is not without difficulty, we conclude that the participation of federal judges on the Sentencing Commission does not threaten, either in fact or in appearance, the impartiality of the Judicial Branch. We are drawn to this conclusion by one paramount consideration: that the Sentencing Commission is devoted exclusively to the development of rules to rationalize a process that has been and will continue to be performed exclusively by the Judicial Branch. In our view, this is an essentially neutral endeavor and one in which judicial participation is peculiarly appropriate. Judicial contribution to the enterprise of creating rules to limit the discretion of sentencing judges does not enlist the resources or reputation of the Judicial Branch in either the legislative business of determining what conduct should be criminalized or the executive business of enforcing the law. Rather, judicial participation on the Commission ensures that judicial experience and expertise will inform the promulgation of rules for the exercise of the Judicial Branch's own business — that of passing sentence on every criminal defendant. To this end, Congress has provided, not inappropriately, for a significant judicial voice on the Commission. Justice Jackson underscored in Youngstown that the Constitution anticipates reciprocity among the Branches. 343 U. S., at 635. As part of that reciprocity and as part of the integration of dispersed powers into a workable government, Congress may enlist the assistance of judges in the creation of rules to govern the Judicial Branch. Our principle of separation of powers anticipates that the coordinate Branches will converse with each other on matters of vital common interest. While we have some reservation that Congress required such a dialogue in this case, the Constitution does not prohibit Congress from enlisting federal judges to present a uniquely judicial view on the uniquely judicial subject of sentencing. In this case, at least, where the subject lies so close to the heart of the judicial function and where purposes of the Commission are not inherently partisan, such enlistment is not coercion or co-optation, but merely assurance of judicial participation. Finally, we reject petitioner's argument that the mixed nature of the Commission violates the Constitution by requiring Article III judges to share judicial power with nonjudges. As noted earlier, the Commission is not a court and exercises no judicial power. Thus, the Act does not vest Article III power in nonjudges or require Article III judges to share their power with nonjudges.",Composition of the Commission
+526,112173,2,3,"The Act empowers the President to appoint all seven members of the Commission with the advice and consent of the Senate. The Act further provides that the President shall make his choice of judicial appointees to the Commission after considering a list of six judges recommended by the Judicial Conference of the United States. The Act also grants the President authority to remove members of the Commission, although only for neglect of duty or malfeasance in office or for other good cause shown. 28 U. S. C. § 991(a). Mistretta argues that this power of Presidential appointment and removal prevents the Judicial Branch from performing its constitutionally assigned functions. [30] See Nixon v. Administrator of General Services, 433 U. S., at 443. Although we agree with petitioner that the independence of the Judicial Branch must be jealously guarded against outside interference, see Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U. S., at 60, and that, as Madison admonished at the founding, neither of [the Branches] ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers, The Federalist No. 48, p. 332 (J. Cooke ed. 1961), we do not believe that the President's appointment and removal powers over the Commission afford him influence over the functions of the Judicial Branch or undue sway over its members. The notion that the President's power to appoint federal judges to the Commission somehow gives him influence over the Judicial Branch or prevents, even potentially, the Judicial Branch from performing its constitutionally assigned functions is fanciful. We have never considered it incompatible with the functioning of the Judicial Branch that the President has the power to elevate federal judges from one level to another or to tempt judges away from the bench with Executive Branch positions. The mere fact that the President within his appointment portfolio has positions that may be attractive to federal judges does not, of itself, corrupt the integrity of the Judiciary. Were the impartiality of the Judicial Branch so easily subverted, our constitutional system of tripartite Government would have failed long ago. We simply cannot imagine that federal judges will comport their actions to the wishes of the President for the purpose of receiving an appointment to the Sentencing Commission. [31] The President's removal power over Commission members poses a similarly negligible threat to judicial independence. The Act does not, and could not under the Constitution, authorize the President to remove, or in any way diminish the status of Article III judges, as judges. Even if removed from the Commission, a federal judge appointed to the Commission would continue, absent impeachment, to enjoy tenure during good Behavior and a full judicial salary. U. S. Const., Art. III, § 1. [32] Also, the President's removal power under the Act is limited. In order to safeguard the independence of the Commission from executive control, Congress specified in the Act that the President may remove the Commission members only for good cause. [33] Such congressional limitation on the President's removal power, like the removal provisions upheld in Morrison v. Olson, 487 U. S. 654 (1988), and Humphrey's Executor v. United States, 295 U. S. 602 (1935), is specifically crafted to prevent the President from exercising coercive influence over independent agencies. See Morrison, 487 U. S., at 688; Humphrey's Executor, 295 U. S., at 630. In other words, since the President has no power to affect the tenure or compensation of Article III judges, even if the Act authorized him to remove judges from the Commission at will, he would have no power to coerce the judges in the exercise of their judicial duties. [34] In any case, Congress did not grant the President unfettered authority to remove Commission members. Instead, precisely to ensure that they would not be subject to coercion even in the exercise of their nonjudicial duties, Congress insulated the members from Presidential removal except for good cause. Under these circumstances, we see no risk that the President's limited removal power will compromise the impartiality of Article III judges serving on the Commission and, consequently, no risk that the Act's removal provision will prevent the Judicial Branch from performing its constitutionally assigned function of fairly adjudicating cases and controversies. [35]",Presidential Control
+527,109722,1,6,"Sections 3317.06 (G), (H), (I), and (K) authorize expenditures of funds for certain therapeutic, guidance, and remedial services for students who have been identified as having a need for specialized attention. [12] Personnel providing the services must be employees of the local board of education or under contract with the State Department of Health. The services are to be performed only in public schools, in public centers, or in mobile units located off the nonpublic school premises. App. 42. The parties have stipulated: The determination as to whether these programs would be offered in the public school, public center, or mobile unit will depend on the distance between the public and nonpublic school, the safety factors involved in travel, and the adequacy of accommodations in public schools and public centers. Ibid. Appellants concede that the provision of remedial, therapeutic, and guidance services in public schools, public centers, or mobile units is constitutional if both public and nonpublic school students are served simultaneously. Brief for Appellants 41-42, 46. [13] Their challenge is limited to the situation where a facility is used to service only nonpublic school students. They argue that any program that isolates the sectarian pupils is impermissible because the public employee providing the service might tailor his approach to reflect and reinforce the ideological view of the sectarian school attended by the children. Such action by the employee, it is claimed, renders direct aid to the sectarian institution. Appellants express particular concern over mobile units because they perceive a danger that such a unit might operate merely as an annex of the school or schools it services. At the outset, we note that in its present posture the case does not properly present any issue concerning the use of a public facility as an adjunct of a sectarian educational enterprise. The District Court construed the statute, as do we, to authorize services only on sites that are neither physically nor educationally identified with the functions of the nonpublic school. 417 F. Supp., at 1123. Thus, the services are to be offered under circumstances that reflect their religious neutrality. We recognize that, unlike the diagnostician, the therapist may establish a relationship with the pupil in which there might be opportunities to transmit ideological views. In Meek the Court acknowledged the danger that publicly employed personnel who provide services analogous to those at issue here might transmit religious instruction and advance religious beliefs in their activities. But, as discussed in Part V, supra, the Court emphasized that this danger arose from the fact that the services were performed in the pervasively sectarian atmosphere of the church-related school. 421 U. S., at 371. See also Lemon, 403 U. S., at 618-619. The danger existed there, not because the public employee was likely deliberately to subvert his task to the service of religion, but rather because the pressures of the environment might alter his behavior from its normal course. So long as these types of services are offered at truly religiously neutral locations, the danger perceived in Meek does not arise. The fact that a unit on a neutral site on occasion may serve only sectarian pupils does not provoke the same concerns that troubled the Court in Meek. [14] The influence on a therapist's behavior that is exerted by the fact that he serves a sectarian pupil is qualitatively different from the influence of the pervasive atmosphere of a religious institution. The dangers perceived in Meek arose from the nature of the institution, not from the nature of the pupils. Accordingly, we hold that providing therapeutic and remedial services at a neutral site off the premises of the nonpublic schools will not have the impermissible effect of advancing religion. Neither will there be any excessive entanglement arising from supervision of public employees to insure that they maintain a neutral stance. It can hardly be said that the supervision of public employees performing public functions on public property creates an excessive entanglement between church and state. Sections 3317.06 (G), (H), (I), and (K) are constitutional.",Therapeutic Services
+528,109722,1,7,"Sections 3317.06 (B) and (C) authorize expenditures of funds for the purchase and loan to pupils or their parents upon individual request of instructional materials and instructional equipment of the kind in use in the public schools within the district and which is incapable of diversion to religious use. [15] Section 3317.06 also provides that the materials and equipment may be stored on the premises of a nonpublic school and that publicly hired personnel who administer the lending program may perform their services upon the nonpublic school premises when necessary for efficient implementation of the lending program. Although the exact nature of the material and equipment is not clearly revealed, the parties have stipulated: It is expected that materials and equipment loaned to pupils or parents under the new law will be similar to such former materials and equipment except that to the extent that the law requires that materials and equipment capable of diversion to religious issues will not be supplied. App. 36. [16] Equipment provided under the predecessor statute, invalidated as set forth in n. 1, supra, included projectors, tape recorders, record players, maps and globes, science kits, weather forecasting charts, and the like. The District Court, 417 F. Supp., at 1117, found the new statute, as now limited, constitutional because the court could not distinguish the loan of material and equipment from the textbook provisions upheld in Meek, 421 U. S., at 359-362, and in Allen, 392 U. S., at 248. In Meek, however, the Court considered the constitutional validity of a direct loan to nonpublic schools of instructional material and equipment, and, despite the apparent secular nature of the goods, held the loan impermissible. MR. JUSTICE STEWART, in writing for the Court, stated: The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U. S., at 616-617. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. `[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' Id., at 657 (opinion of BRENNAN, J.). 421 U. S., at 366. Thus, even though the loan ostensibly was limited to neutral and secular instructional material and equipment, it inescapably had the primary effect of providing a direct and substantial advancement of the sectarian enterprise. Appellees seek to avoid Meek by emphasizing that it involved a program of direct loans to nonpublic schools. In contrast, the material and equipment at issue under the Ohio statute are loaned to the pupil or his parent. In our view, however, it would exalt form over substance if this distinction were found to justify a result different from that in Meek. Before Meek was decided by this Court, Ohio authorized the loan of material and equipment directly to the nonpublic schools. Then, in light of Meek, the state legislature decided to channel the goods through the parents and pupils. Despite the technical change in legal bailee, the program in substance is the same as before: The equipment is substantially the same; it will receive the same use by the students; and it may still be stored and distributed on the nonpublic school premises. In view of the impossibility of separating the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools. Indeed, this conclusion is compelled by the Court's prior consideration of an analogous issue in Committee for Public Education v. Nyquist, 413 U. S. 756 (1973). There the Court considered, among others, a tuition reimbursement program whereby New York gave low-income parents who sent their children to nonpublic schools a direct and unrestricted cash grant of $50 to $100 per child (but no more than 50% of tuition actually paid). The State attempted to justify the program, as Ohio does here, on the basis that the aid flowed to the parents rather than to the church-related schools. The Court observed, however, that, unlike the bus program in Everson v. Board of Education, 330 U. S. 1 (1947), and the book program in Allen, there has been no endeavor `to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.' 413 U. S., at 783, quoting Lemon v. Kurtzman, 403 U. S., at 613. The Court thus found that the grant program served to establish religion. If a grant in cash to parents is impermissible, we fail to see how a grant in kind of goods furthering the religious enterprise can fare any better. [17] Accordingly, we hold §§ 3317.06 (B) and (C) to be unconstitutional. [18]",Instructional Materials and Equipment
+529,104123,1,1,"The evidence as to petitioners' basing point system for the sale of glucose was stipulated. The Commission found from the evidence that petitioners have two plants for the manufacture of glucose or corn syrup, one at Argo, Illinois, within the Chicago switching district, and the other at Kansas City, Missouri. The Chicago plant has been in operation since 1910, and that at Kansas City since 1922. Petitioners' bulk sales of glucose are at delivered prices, which are computed, whether the shipments are from Chicago or Kansas City, at petitioners' Chicago prices, plus the freight rate from Chicago to the place of delivery. Thus purchasers in all places other than Chicago pay a higher price than do Chicago purchasers. And in the case of all shipments from Kansas City to purchasers in cities having a lower freight rate from Kansas City than from Chicago, the delivered price includes unearned or phantom freight, to the extent of the difference in freight rates. Conversely, when the freight from Kansas City to the point of delivery is more than that from Chicago, petitioners must absorb freight upon shipments from Kansas City, to the extent of the difference in freight. The Commission illustrated the operation of the system by petitioners' delivered prices for glucose in bulk in twelve western and southwestern cities, to which shipments were usually made from Kansas City. On August 1, 1939, the freight rates to these points of delivery from Chicago were found to exceed those from Kansas City by from 4 to 40 cents per hundred pounds, and to that extent the delivered prices included unearned or phantom freight. As petitioners' Chicago price was then $2.09 per hundred pounds, this phantom freight factor with respect to deliveries to these twelve cities represented from 2 to 19% of the Chicago base price. From this it follows, as will presently be seen, that petitioners' net return at their Kansas City factory on sales to these twelve cities, in effect their f.o.b. factory price, varied according to the amount of phantom freight included in the delivered price. Much of petitioners' glucose is sold to candy manufacturers, who are in competition with each other in the sale of their candy. Glucose is the principal ingredient in many varieties of low-priced candies, which are sold on narrow margins of profit. Customers for such candies may be diverted from one manufacturer to another by a difference in price of a small fraction of a cent per pound. The Commission found that the higher prices paid for glucose purchased from petitioners by candy manufacturers located in cities other than Chicago, result in varying degree in higher costs of producing the candies. The degree in each instance varies with the difference in the delivered price of the glucose, and the proportion of glucose in the particular candy. Manufacturers who pay unearned or phantom freight under petitioners' basing point system necessarily pay relatively higher costs for their raw material than do those manufacturers whose location with relation to the basing point is such that they are able to purchase at the base price plus only the freight actually paid. The Commission found that the payment of these increased prices imposed by the basing point system may . . . diminish the manufacturers' ability to compete with those buyers at lower prices. The Commission concluded from these facts that petitioners' basing point system resulted in discriminations in price among purchasers of glucose, and that the discriminations result in substantial harm to competition among such purchasers. Petitioners challenge each conclusion. First. Section 2 (a) of the Clayton Act, as amended, makes it unlawful for any person, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality . . . The statute permits differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery . . . Petitioners' pricing system results inevitably in systematic price discriminations, since the prices they receive upon deliveries from Kansas City bear relation to factors other than actual costs of production or delivery. As in the case of the twelve cities selected by the Commission for illustrative purposes, the freight actually paid by petitioners in making deliveries usually varies from the freight factor from Chicago, used in computing the delivered price. When the actual freight is the lesser of the two, petitioners charge and collect unearned or phantom freight; when it is the greater, petitioners absorb the excess freight, which they pay, but do not include in the computation of their delivered price. In either event, on shipments from Kansas City, the delivered price to the purchaser depends not only on the base price plus the actual freight from Kansas City, but also upon the difference between the actual freight paid and the freight rate from Chicago which is included in the delivered price. This difference also results in varying net prices to petitioners at their factory at Kansas City, according to the destination of the glucose. The factory net varies according as petitioners collect phantom freight or absorb freight, and in each case in the amount of this freight differential [1] The price discriminations resulting from this systematic inclusion of the freight differential in computing the delivered price are not specifically permitted by the statute. Hence they are unlawful, unless, as petitioners argue, there is an implicit exception to the statute for such a basing point system. Petitioners point out that there is no discrimination under their basing point system between buyers at the same points of delivery, and urge that the prohibition of § 2 (a) is directed only at price discriminations between buyers at the same delivery points. There is nothing in the words of the statute to support such a distinction, since the statute is not couched in terms of locality. And its purpose to prevent injuries to competition through price discriminations would preclude any such distinction, not required by its language. The purchasers of glucose from petitioners are found to be in competition with each other, even though they are in different localities. The injury to the competition of purchasers in different localities is no less harmful than if they were in the same city. We find nothing in the legislative history of the Clayton or Robinson-Patman Acts to support the suggested distinction. It is true that § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, incorporating the Borah-Van Nuys Bill, S. 4171, 74th Cong., 2d Sess., imposes criminal penalties for selling goods in any part of the United States at prices lower than those exacted . . . elsewhere in the United States for the purpose of destroying competition . . . But this section does not restrict the operation of the prohibitions, with civil sanctions, of the Robinson-Patman amendments to § 2 (a) of the Clayton Act. This was specifically pointed out by the Conference Report on the Robinson-Patman Act. [2] H. Rep. No. 2951, 74th Cong., 2d Sess., p. 8. Petitioners further contend that basing point systems were well known prior to the enactment of the Robinson-Patman Act and were considered by Congress to be legal. From this petitioners conclude that they remained legal in the absence of a clear command to the contrary. Cf. Parker v. Motor Boat Sales, 314 U.S. 244; Helvering v. Griffiths, 318 U.S. 371. But we think that the premise falls, and with it the conclusion, whatever it might be if the premise were valid. In support of the legality of basing point systems, petitioners rely on Maple Flooring Assn. v. United States, 268 U.S. 563, 570, and Cement Manufacturers Assn. v. United States, 268 U.S. 588, 597. But these were suits to restrain violations of the Sherman Act, and did not involve the prohibition of the Clayton Act upon discriminations in price. The only question for decision in those cases was whether there was a concerted price-fixing scheme among competing sellers, accomplished in part by their adoption of a uniform basing point system; in fact, no prohibited concert of action was found. In any event, the basing point systems involved in those cases were quite unlike that used by petitioners. In the Maple Flooring case, supra, the single basing point was so close to most of the points of production as to result in but trivial freight variances; and the defendants in that case were willing to sell on a f.o.b. mill basis, whenever the purchaser so requested. In the Cement case, supra, the defendants used a multiple basing point system, with a basing point at or near each point of production. Under this system, any manufacturer, in order to compete in the territory closer freight wise to another, would absorb freight, by adjusting his mill price to make his delivered price as low as that of his competitors. Under this system the delivered price for any locality was determined by the nearest basing point. We have no occasion to decide whether a basing point system such as that in the Cement case is permissible under the Clayton Act, in view of the provisions of § 2 (b), permitting reductions in price in order to meet a competitor's equally low price. Cf. Federal Trade Commission v. A.E. Staley Mfg. Co., post, p. 746. When the Robinson-Patman Act was adopted in 1936, there was no settled construction of the Clayton Act in the federal courts contrary to that now urged by the Commission, as was the case with the measures involved in Helvering v. Griffiths, supra . Nor was there any settled administrative construction to the contrary. In fact in 1924 in the only decision involving the problem, the Federal Trade Commission, after extensive investigation and hearings, ordered the United States Steel Corporation and its subsidiaries to cease and desist from the sales of their rolled steel products on the Pittsburgh-Plus price system. 8 F.T.C. 1. The Commission held that the use of a single basing point at Pittsburgh for steel plants over the country was a violation of § 2 of the Clayton Act, as well as § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, as they then read. The respondents in that case sought no review of the Commission's order and filed with the Commission a formal statement of intended compliance with it. Petitioners also rely on the failure of the Commission to make further orders against basing point systems in the period from 1924 to the passage of the Robinson-Patman Act in 1936. The Commission undertook no further proceedings because of difficulties of enforcement which it attributed to the exemption provisions of § 2 and to decisions of the lower federal courts in Clayton Act cases. Instead it pressed for clarifying amendments to the Act. See the Commission's Final Report on the Chain Store Investigation (1936), Sen. Doc. No. 4, 74th Cong., 1st Sess., pp. 89-90, 96-97. The Robinson-Patman Act was adopted in response to the Commission's recommendation that defects in § 2 be remedied and its prohibition of price discrimination strengthened. Finally, petitioners argue that Congress, by the rejection of a provision of the Robinson-Patman Bill, which would have in effect prohibited all basing point systems, has indicated its intention to sanction all such systems. This provision, as reported to the House by the Committee on the Judiciary, would have defined price, as used in § 2 of the Clayton Act, as meaning the amount received by the vendor after deducting actual freight or cost of other transportation, if any, allowed or defrayed by the vendor. The practical effect of this provision would have been to require that the price of all commodities sold in interstate commerce be computed on an f.o.b. factory basis, in order to avoid the prohibited discriminations in selling price. It would have prohibited any system of uniform delivered prices, as well as any basing point system of delivered prices. These effects were recognized in the Committee's report, see H. Rep. No. 2287, 74th Cong., 2d Sess., p. 14, and in the debates upon the Robinson-Patman Bill. Cf. 80 Cong. Rec. 8118, 8223-8224. Indeed, the provision would have prohibited such a multiple basing point system as that in Cement Manufacturers Assn. v. United States, supra , as well as the present system. Such a drastic change in existing pricing systems as would have been effected by the proposed amendment engendered opposition, which finally led to the withdrawal of the provision by the House Committee on the Judiciary. 80 Cong. Rec. 8102, 8140, 8224. We think this legislative history indicates only that Congress was unwilling to require f.o.b. factory pricing, and thus to make all uniform delivered price systems and all basing point systems illegal per se. On the contrary we think that it left the legality of such systems to be determined accordingly as they might be within the reach of § 2 (a), as enacted, and its more restricted prohibitions of discriminations in delivered prices. We conclude that the discriminations involved in petitioners' pricing system are within the prohibition of the Act. We pass to the question whether these discriminations had the prescribed effect on competition. Second. Section 2 (a) of the Clayton Act, as amended, prohibits only discriminations whose effect . . . may be substantially to lessen competition . . . in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: . . . Petitioners insist that the Commission's findings, based upon the facts stipulated, do not support its conclusion that petitioners' discriminations have the prescribed effect. It is to be observed that § 2 (a) does not require a finding that the discriminations in price have in fact had an adverse effect on competition. The statute is designed to reach such discriminations in their incipiency, before the harm to competition is effected. It is enough that they may have the prescribed effect. Cf. Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 356-357. But as was held in the Standard Fashion case, supra, with respect to the like provisions of § 3 of the Clayton Act, prohibiting tying clause agreements, the effect of which may be to substantially lessen competition, the use of the word may was not to prohibit discriminations having the mere possibility of those consequences, but to reach those which would probably have the defined effect on competition. Since petitioners' basing point system results in a Chicago delivered price which is always lower than any other, including that at Kansas City, a natural effect of the system is the creation of a favored price zone for the purchasers of glucose in Chicago and vicinity, which does not extend to other points of manufacture and shipment of glucose. Since the cost of glucose, a principal ingredient of low-priced candy, is less at Chicago, candy manufacturers there are in a better position to compete for business, and manufacturers of candy located near other factories producing glucose, distant from the basing point, as Kansas City, are in a less favorable position. The consequence is, as found by the Commission, that several manufacturers of candy, who were formerly located in Kansas City or other cities served from petitioners' Kansas City plant, have moved their factories to Chicago. Further, we have seen that prices in cities to which shipments are made from Kansas City, are frequently discriminatory, since the prices in such cities usually vary according to factors, phantom freight or freight absorption, which are unrelated to any proper element of actual cost. And these systematic differentials are frequently appreciable in amount. The Commission's findings that glucose is a principal ingredient of low priced candy and that differences of small fractions of a cent in the sales price of such candy are enough to divert business from one manufacturer to another, readily admit of the Commission's inference that there is a reasonable probability that the effect of the discriminations may be substantially to lessen competition. The weight to be attributed to the facts proven or stipulated, and the inferences to be drawn from them, are for the Commission to determine, not the courts. See Federal Trade Commission v. Pacific States Paper Trade Assn., 273 U.S. 52, 63; Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73; cf. Labor Board v. Southern Bell Tel. Co., 319 U.S. 50, 60. We cannot say that the Commission's inference here is not supported by the stipulated facts, or that it does not support the Commission's order.",Basing Point Practices.
+530,104123,1,2,"Ordinarily, when petitioners announce an advance in the price of glucose, they allow their customers a period of five days to book orders, that is, secure options to purchase, at the old price, and a period of thirty days in which to take delivery upon the options. The Commission charged that petitioners have further violated § 2 (a) of the Clayton Act, as amended, by permitting certain favored customers to secure options for the purchase of glucose, and to take delivery at the old price, for periods longer than those usually permitted to other customers. The Commission also charged other violations of § 2 (a) in that petitioners favored certain tank wagon customers by permitting them to book orders at the lower prices charged for tank car deliveries, and to take deliveries by tank wagon over extended periods of time. The Commission found, upon ample evidence, that these discriminations were in fact made by petitioners. Petitioners assert that the practices prohibited by § 2 (a) are discriminations in price, and not in the terms and conditions of sale other than price. They rely on the fact that in the course of the progress of the Robinson-Patman Bill through Congress, the phrase terms of sale, originally included in the prohibited discriminations, was stricken from the bill. But even if the contention be accepted, we cannot ignore the fact that the present discriminations in the terms of sale operated to permit the favored customers to purchase at a lower price than other customers, so that their only practical effect was to establish discriminations in price, precisely the evil at which the statute was aimed. And the Conference Committee, in reporting on this elimination of the phrase terms of sale from the bill, made it clear that § 2 (a) still applied to indirect as well as direct discriminations in price. It said that with the elimination of the phrase terms of sale, the act is inapplicable to terms of sale except as they amount in effect to the indirect discriminations in price within the meaning of the remainder of subsection (a). H. Rep. No. 2951, 74th Cong., 2nd Sess., p. 5. Petitioners also contend that these sales to favored customers were to meet the competition of other sellers of glucose, and were therefore excepted from the prohibition of § 2 (a), by the proviso of subsection (b) of § 2 of the Clayton Act, as amended. Subsection (b) provides: Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price . . ., the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price . . . was made in good faith to meet an equally low price of a competitor . . . The only evidence said to rebut the prima facie case made by proof of the price discriminations was given by witnesses who had no personal knowledge of the transactions, and was limited to statements of each witness's assumption or conclusion that the price discriminations were justified by competition. Examination of the testimony satisfies us, as it did the court below, that it was insufficient to sustain a finding that the lower prices allowed to favored customers were in fact made to meet competition. Hence petitioners failed to sustain the burden of showing that the price discriminations were granted for the purpose of meeting competition. Cf. Federal Trade Commission v. A.E. Staley Mfg. Co., post, p. 746. Finally it is contended that there was no evidence to support the Commission's finding, which was referable to these practices as well as petitioners' basing point practices, that the discriminations in price may diminish competition within the meaning of § 2 (a). This finding as to the effect of both types of discrimination was based on the same stipulation of facts which we have already considered in connection with the basing point practices. Since the customers here are the same manufacturers of low-priced candies as were there involved, and since the price discriminations here are relatively substantial in a field where differences of a fraction of a cent in the price of candy are sufficient to divert business from one manufacturer to another, we think that the stipulation, which we find to be applicable to these as well as the basing point practices, is sufficient to support the finding of the prescribed effect on competition.",Booking Practices.
+531,104123,1,3,"Still other price discriminations by petitioners charged and found by the Commission were discounts allowed to certain favored purchasers of gluten feed and meal, by-products of petitioners' refining of corn, and other discounts allowed to certain favored purchasers of starch and starch products. It was not and is not contended that these allowances were due to differences in the cost of manufacture, sale or delivery. But it is asserted that these discriminations did not violate § 2 (a), since there was not the requisite effect on competition. It was stipulated, and the Commission found, that the allowances in question were sufficient, if and when reflected in whole or in substantial part in resale prices, to attract business to the favored purchasers away from their competitors, or to force [their] competitors to resell . . . at a substantially reduced profit, or to refrain from reselling. But it is asserted that there is no evidence that the allowances ever were reflected in the purchasers' resale prices. This argument loses sight of the statutory command. As we have said, the statute does not require that the discriminations must in fact have harmed competition, but only that there is a reasonable possibility that they may have such an effect. We think that it was permissible for the Commission to infer that these discriminatory allowances were a substantial threat to competition.",Discounts to Purchasers of By-Products.
+532,104123,1,4,"The Commission also charged and found that petitioners violated § 2 (e) of the Clayton Act, which provides: (e) . . . it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms. The alleged violation consisted of advertising expenditures made by petitioners for the Curtiss Candy Company in order to promote the sale of dextrose or corn sugar for use in candy manufacture. For this purpose petitioners entered into an arrangement with the Curtiss Candy Company, whereby during the years 1936 to 1939 they spent over $750,000 in advertising Curtiss candy as being rich in dextrose. At the same time, Curtiss advertised its candy as being rich in dextrose, and made the same statement on its labels. While Curtiss was free to purchase dextrose used in the advertised candies from other manufacturers, it in fact made all such purchases from petitioners, in annually increasing quantities until it purchased a total of seven million pounds in 1939. During the same period it purchased of petitioners large quantities of glucose, the purchases increasing from nothing in 1937 to almost fifteen million pounds in 1939. Although petitioners sold dextrose to others, it did not furnish proportionally equal advertising services to them. Petitioners say that the advertising arrangement is not forbidden by § 2 (e) because it was not made with the Curtiss Candy Company as a purchaser. But during the period in question the Curtiss Company was in fact a purchaser of petitioners' commodity. The Commission could properly infer that the advertising for which petitioners paid, contemplated the sale of that commodity to Curtiss, and that the advertising contemplated the offering for sale of the candy by Curtiss. Petitioners thus furnished a service connected with the sale or offering for sale of a commodity upon terms not accorded to other purchasers. The statute does not require that the discrimination in favor of one purchaser against another shall be provided for in a purchase contract or be required by it. It is enough if the discrimination be made in favor of one who is a purchaser and denied to another purchaser or other purchasers of the commodity. It is said also that the Curtiss Company was not a purchaser of a commodity bought for resale, with or without processing within the meaning of § 2 (e), since the Curtiss Company buys dextrose from petitioners, but uses it with other ingredients to produce candy, an entirely new commodity, which it sells. While the Act does not define the term processing, the conversion of dextrose into candy would seem to conform to the current understanding that processing is a mode of treatment of materials to be transformed or reduced to a different state or thing. See Cochrane v. Deener, 94 U.S. 780, 788. In view of the purpose of the statute to prevent the enumerated discriminations attending the sale of a commodity for resale, the precise nature or extent of the processing before resale would seem to be immaterial. The statute is aimed at discrimination by supplying facilities or services to a purchaser not accorded to others, in all cases where the commodity is to be resold, whether in its original form or in a processed product. The evils of the discrimination would seem to be the same whether the processing results in little or much alteration in the character of the commodity purchased and resold. And finally it is said that the Commission was without jurisdiction because the dextrose sold by petitioners to Curtiss was not found to have been sold in interstate commerce; that if the section is construed to apply to such transactions, it would be unconstitutional; and that, in any case, there is no showing that the transactions complained of, although not themselves in interstate commerce, have in any way affected such commerce. But the effect upon the commerce is amply shown by the interstate and national character of the Curtiss Company's business; by petitioners' advertising for Curtiss, which was itself frequently in interstate commerce, amounting to $750,000; and by Curtiss's own admission that it competed in the sale of its candy in interstate commerce, with all manufacturers of one cent and five cent bars of candy. Moreover, some of petitioners' sales to other companies, to whom these allowances were not accorded, were made in interstate commerce; thus there was a discrimination against sales in interstate commerce, well within the power of the Commission to remedy. Petitioners make a number of other arguments or contentions of lesser moment which we have considered but find it unnecessary to discuss. We conclude that the advertising furnished by petitioners was a service or facility connected with the processing . . . sale, or offering for sale of the commodity purchased by the Curtiss Company upon terms not accorded to other purchasers, and therefore violated the statute. The several violations of §§ 2 (a) and 2 (e) of the Clayton Act, found by the Commission, sustained by the court below, and brought here for review, fall within the prohibitions of the Act. The Commission's conclusions are amply supported by its findings and the evidence, and the judgment is Affirmed. MR. JUSTICE ROBERTS took no part in the consideration or decision of this case. MR. JUSTICE JACKSON concurs in the result.",Advertising Allowances.
+533,108732,2,2,"These national trends are reflected in the six New England States, which constitute the relevant geographic market. In the four years preceding Falstaff's acquisition of Narragansett, New England beer sales increased 9.5%—a substantial gain, although somewhat below the increase in national sales for the same period. At the same time, however, the number of brewers operating plants in the region declined precipitately. Thus, in 1957, there were 11 breweries in the New England States, but by 1964 the number had declined to six, and of those six, two of the three smallest had publicly expressed an interest in merging with a larger competitor. Not surprisingly, this decline in the number of breweries in New England was accompanied by an increase in the market shares of those selling in the region. In 1960, the eight largest participants in the New England market claimed 74% of all beer sales, and by 1964 this figure had risen to 81.2%. Examination of the four largest brewers shows that their share of the market rose from about 50% in 1960 to 54% in 1964, to 61.3% in 1965. In large part, these figures are probably explicable in terms of the nationwide trend in favor of the large national and regional brewers. Seven of the Nation's 10 largest breweries, including, of course, all the national breweries, sell beer in New England, and their share of the market has increased as the small, local brewers disappeared. At the same time, however, the concentration of the market does not yet seem to have produced blatantly anticompetitive effects. In recent years, prices have remained fairly stable despite rising costs, and competition seems relatively intense among the few large firms which dominate the market. Still, there is no doubt that the seeds of anticompetitive conduct are present, since [a]s [an oligopolistic] condition develops, the greater is the likelihood that parallel policies of mutual advantage, not competition, will emerge. United States v. Aluminum Co. of America, 377 U. S. 271, 280 (1964). One commentator's description of the national beer market aptly characterizes the situation in New England: The increasing concentration . . . and the unlikely entrance of new rivals poses a threat to the future level of competition in this industry. Thus far, there is no evidence of collusion in the beer industry. But as the industry becomes populated by fewer and fewer companies, the possibility and likelihood will be enhanced of their engaging in tacit or direct collusion—given the inelastic nature of demand—to establish a joint profit maximizing price and output. Similarly, the chances will become slimmer that individual firms in the industry will follow a truly independent price and production strategy, vigorously striving to take sales away from rival brewers. With only a few sellers will come the increasing awareness that parallel business behavior might be feasible. Elzinga, The Beer Industry, in W. Adams, The Structure of American Industry 189, 213 (4th ed. 1971).",The Geographic Market
+534,108732,2,3,"Narragansett is a regional brewery with only minuscule sales outside of New England. Within the New England market, however, the firm has been highly successful. Although only twenty-first in national sales and accounting for only 1.4% of the beer sales in the United States, Narragansett was the largest seller of beer in New England for the five years preceding its acquisition. In recent years, the firm has expanded steadily until, in 1964, the year before acquisition, it sold 1.275 million barrels, which was about 20% of the New England market. Net profits had increased from $417,284 in 1960 to a record level of $713,083 in 1964. Notwithstanding this growth, Narragansett felt itself under some pressure from the national brewers. [6] The corporation was closely held by the Haffenreffer family, and the stockholders apparently concluded that it was in their interest to diversify their personal holdings by selling Narragansett.",NarragansettThe Acquired Firm
+535,108732,2,4,"Like Narragansett, Falstaff has been highly successful in recent years. Beginning with a 100,000-barrel plant in St. Louis shortly after the repeal of Prohibition, the firm has steadily grown. By 1964, it was the Nation's fourth largest producer, marketing 5.8 million barrels, or 5.9% of the total national production. Throughout its history, Falstaff has followed a pattern of acquiring weak breweries and expanding them so as to extend its influence to new markets. Although still a regional brewer, by 1965 the company had expanded its network of plants and distributorships over an area far larger than that in which Narragansett competed. In that year, Falstaff operated eight plants and sold its product in 32 States in the West, Midwest, and South. Sixteen of these States were added in the period after 1950. However, as of 1965, Falstaff sold virtually no beer in any of the Northeastern States, including the six composing the New England area. Falstaff marketed its product both through company-owned branches and through some 600 independent distributorships. [7] In the years immediately prior to its acquisition of Narragansett, Falstaff's steady pattern of growth had continued. Between 1955 and 1964, its sales increased from $77 million to $139.5 million and its net profits grew from $4.3 million to $7 million. In the year before acquisition, the company announced a 10-year expansion program in which it was prepared to invest $35 million. Yet, despite this encouraging trend, Falstaff, like Narragansett, was to some extent handicapped by the competitive advantages—in particular, national advertising— enjoyed by national distributors. For years, the company had publicly expressed the desire to become a national brewer, and the logical region for market extension was the Northeast. New England seemed a particularly appropriate area to initiate expansion. As indicated above, seven of the 10 largest manufacturers already sold beer in New England, and Falstaff was the largest of the three remaining outside the market. The New England market was expanding at a healthy rate, and it appeared to be a fertile area for growth. In 1958, Falstaff commissioned a study from Arthur D. Little, Inc., to determine the feasibility of future expansion. The Little Report, two years in the making, concluded that Falstaff should enter the northeastern market sometime within the next five years. But although it was clear that Falstaff should move into the northeast market, the method of entry was less obvious. After a careful review of cost estimates and the ratio of earnings to net worth, the Little Report recommended de novo entry through the construction of a new plant to serve the Northeast. The report concluded that [t]here appears to be ample reason . . . for building rather than buying . . . [and] that major new market entrances need not be predicated on the availability of a brewery Falstaff could purchase. Despite this analysis, Falstaff's own management personnel apparently concluded that the profit return on a de novo entry would be inordinately low. [8] Falstaff argued at trial that it needed a strong, pre-existing distribution system to make a profitable entry. But cf. n. 7, supra. An independent economist, Dr. Ira Horowitz, testified on behalf of Falstaff that de novo entry would result in a 6.7% return which he characterized as a very, very poor investment indeed. However, it should be noted that the 6.7% figure failed to account for the increment in Falstaff's profit margin which would result from its newly gained status as a national brewer with modern plants to serve the eastern part of the Nation —the very increment which provided the primary motivation for expansion in the first place. While Dr. Horowitz apparently recognized that such an increment might materialize, he stated that he was unable to estimate its size. [9] Moreover, even the 6.7% return rate compares favorably with Falstaff's actual rate of return on its Narragansett purchase, which was a mere 3.7%. In any event, whatever the abstract merits of this dispute, it is clear that Falstaff's management personnel determined that entry by acquisition offered the preferable avenue for expansion. Beginning in 1962, the company held discussions with Liebmann, P. Ballantine & Sons, [10] Piel Brothers, and Dawsons, all of which did a significant percentage of their business in the New England market. All of these possibilities were eventually rejected, and in 1965, Falstaff finally settled on Narragansett as the most promising available brewery.",FalstaffThe Acquiring Firm
+536,108732,2,1,"As is clear from its face, § 7 was designed to deal with the anticompetitive effects of excessive industrial concentration caused by the corporate marriage of two competitors. It is the basic premise of [§7] that competition will be most vital `when there are many sellers, none of which has any significant market share.'  United States v. Aluminum Co. of America, 377 U. S., at 280. But § 7 does more than prohibit mergers with immediate anticompetitive effects. The Act by its terms prohibits acquisitions which may . . . substantially . . . lessen competition, or . . . tend to create a monopoly. The use of the subjunctive indicates that Congress was concerned with the potential effects of mergers even though, at the time they occur, they may cause no present anticompetitive consequences. See, e. g., FTC v. Procter & Gamble Co., 386 U. S. 568, 577 (1967). To be sure, remote possibilities are not sufficient to satisfy the test set forth in § 7. Despite substantial concern with halting a trend toward concentration in its incipiency. Congress did not intend to prohibit all expansion and growth through acquisition and merger. The predictive judgment often required under § 7 involves a decision based upon a careful scrutiny and a reasonable assessment of the future consequences of a merger without unjustifiable, speculative interference with traditional market freedoms. As we stated in Brown Shoe Co. v. United States, 370 U. S. 294, 323 (1962): Congress used the words `may be substantially to lessen competition' (emphasis supplied), to indicate that its concern was with probabilities, not certainties. Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act. See also United States v. Pabst Brewing Co., 384 U. S., at 552; United States v. Penn-Olin Chemical Co., 378 U. S. 158, 171 (1964). The legislative history of § 7 makes plain that this was the intent of Congress. Before 1950, § 7 prohibited only those mergers which lessened competition between the corporation whose stock is so acquired and the corporation making the acquisition. [11] The Celler-Kefauver Amendment, added in 1950, deleted these words and provided instead that all mergers which substantially lessened competition in any line of commerce in any section of the country were to be outlawed. See 64 Stat. 1126. Thus, whereas before 1950, § 7 proscribed only those mergers which eliminated present, actual competition between the merging firms, the Celler-Kefauver Amendment reached cases where future or potential competition in the entire relevant market might be adversely affected by the merger. [12] Section 7 of the Clayton Act was intended to arrest the anticompetitive effects of market power in their incipiency. The core question is whether a merger may substantially lessen competition, and necessarily requires a prediction of the merger's impact on competition, present and future. . . . The section can deal only with probabilities, not with certainties. . . . And there is certainly no requirement that the anticompetitive power manifest itself in anticompetitive action before § 7 can be called into play. If the enforcement of § 7 turned on the existence of actual anticompetitive practices, the congressional policy of thwarting such practices in their incipiency would be frustrated. FTC v. Procter & Gamble Co., 386 U. S., at 577.",The Purposes of ′ 7
+537,108732,2,2,"Since 1950, we have repeatedly applied § 7 to cases where the merging firms competed in the same line of commerce, and we have been willing to define the line of commerce liberally so as to reach anticompetitive practices in their incipiency. See, e. g., United States v. Phillipsburg National Bank, 399 U. S. 350 (1970); United States v. Pabst Brewing Co., 384 U. S. 546 (1966); United States v. Aluminum Co. of America, 377 U. S. 271 (1964); United States v. Philadelphia National Bank, 374 U. S. 321 (1963); Brown Shoe Co. v. United States, 370 U. S. 294 (1962). But in keeping with the spirit of the Celler-Kefauver Amendment, we have also applied § 7 to cases where the acquiring firm is outside the market in which the acquired firm competes. These cases fall into three broad categories which, while frequently overlapping, can be dealt with separately for analytical purposes. 1. The Dominant Entrant. —In some situations, a firm outside the market may have overpowering resources which, if brought to bear within the market, could ultimately have a substantial anticompetitive effect. If such a firm were to acquire a company within the relevant market, it might drive other marginal companies out of business, thus creating an oligopoly, or it might raise entry barriers to such an extent that potential new entrants would be discouraged from entering the market. Cf. Ford Motor Co. v. United States, 405 U. S. 562, 567-568 (1972); FTC v. Procter & Gamble Co., 386 U. S., at 575. [13] Such a danger is especially intense when the market is already highly concentrated or entry barriers are already unusually high before the dominant firm enters the market. 2. The Perceived Potential Entrant. —Even if the entry of a firm does not upset the competitive balance within the market, it may be that the removal of the firm from the fringe of the market has a present anticompetitive effect. In a concentrated oligopolistic market, the presence of a large potential competitor on the edge of the market, apparently ready to enter if entry barriers are lowered, may deter anticompetitive conduct within the market. As we pointed out in United States v. Penn-Olin Chemical Co., 378 U. S., at 174: The existence of an aggressive, well equipped and well financed corporation engaged in the same or related lines of commerce waiting anxiously to enter an oligopolistic market [is] a substantial incentive to competition which cannot be underestimated. From the perspective of the firms already in the market, the possibility of entry by such a lingering firm may be an important consideration in their pricing and marketing decisions. When the lingering firm enters the market by acquisition, the competitive influence exerted by the firm is lost with no offsetting gain through an increase in the number of companies seeking a share of the relevant market. The result is a net decrease in competitive pressure. [14] Cf. United States v. El Paso Natural Gas Co., 376 U. S. 651, 659-660 (1964). 3. The Actual Potential Entrant. —Since the effect of a perceived potential entrant depends upon the perception of those already in the market, it may in some cases be difficult to prove. Moreover, in a market which is already competitive, the existence of a perceived potential entrant will have no present effect at all. [15] The entry by acquisition of such a firm may nonetheless have an anticompetitive effect by eliminating an actual potential competitor. When a firm enters the market by acquiring a strong company within the market, it merely assumes the position of that company without necessarily increasing competitive pressures. Had such a firm not entered by acquisition, it might at some point have entered de novo. An entry de novo would increase competitive pressures within the market, and an entry by acquisition eliminates the possibility that such an increase will take place in the future. Thus, even if a firm at the fringe of the market exerts no present procompetitive effect, its entry by acquisition may end for all time the promise of more effective competition at some future date. Obviously, the anticompetitive effect of such an acquisition depends on the possibility that the firm would have entered de novo had it not entered by acquisition. If the company would have remained outside the market but for the possibility of entry by acquisition, and if it is exerting no influence as a perceived potential entrant, then there will normally be no competitive loss when it enters by acquisition. Indeed, there may even be a competitive gain to the extent that it strengthens the market position of the acquired firm. [16] Thus, mere entry by acquisition would not prima facie establish a firm's status as an actual potential entrant. For example, a firm, although able to enter the market by acquisition, might, because of inability to shoulder the de novo start-up costs, be unable to enter de novo. But where a powerful firm is engaging in a related line of commerce at the fringe of the relevant market, where it has a strong incentive to enter the market de novo, and where it has the financial capabilities to do so, we have not hesitated to ascribe to it the role of an actual potential entrant. In such cases, we have held that § 7 prohibits an entry by acquisition since such an entry eliminates the possibility of future actual competition which would occur if there were an entry de novo. In light of the many decisions to this effect, the majority's assertion that the Court has not squarely faced [this] question is inexplicable. In United States v. Continental Can Co., 378 U. S. 441 (1964), for example, the defendant argued that the types of containers produced by Continental and Hazel-Atlas [the acquired firm] at the time of the merger were for the most part not in competition with each other and hence the merger could have no effect on competition. Id., at 462. But MR. JUSTICE WHITE, writing for the Court, rejected that argument, holding that [i]t is not at all selfevident that the lack of current competition between Continental and Hazel-Atlas for some important end uses of metal and glass containers significantly diminished the adverse effect of the merger on competition. Continental might have concluded that it could effectively insulate itself from competition by acquiring a major firm not presently directing its market acquisition efforts toward the same end uses as Continental, but possessing the potential to do so. Id., at 464 (emphasis added). The majority says it is only arbitrary to read this language as not referring to Hazel-Atlas' present procompetitive influence on the market. But the Continental Can Court said not a word about present procompetitive effects, and, indeed, made clear that it was relying on the future anticompetitive impact of the merger. The Court held, for example, that the fact that Continental and Hazel-Atlas were not substantial competitors of each other for certain end uses at the time of the merger may actually enhance the long-run tendency of the merger to lessen competition. Id., at 465 (emphasis added). See also Ford Motor Co. v. United States, 405 U. S. 562 (1972); FTC v. Procter & Gamble Co., 386 U. S. 568 (1967); United States v. Penn-Olin Chemical Co., 378 U. S. 158 (1964); United States v. El Paso Natural Gas Co., 376 U. S. 651 (1964).",Modes of Potential Competition
+538,108732,2,3,"Although § 7 deals with probabilities, not ephemeral possibilities, all forms of potential competition involve future events and all of them are, therefore, to some extent speculative and uncertain. Whether future competition will be reduced by a present merger is clearly not the kind of question which is susceptible of a ready and precise answer in most cases. It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended § 7 was intended to arrest anticompetitive tendencies in their `incipiency.'  United States v. Philadelphia National Bank, 374 U. S., at 362. The unavoidable problems of proof are compounded in some cases by the relevance of subjective statements of future intent by the managers of the acquiring firm. Although not susceptible of precise analysis, the objective conditions of the market may at least be measured and quantified. But there exists no very good way of evaluating a subjective statement by the manager of a firm that the firm does or does not intend to enter a given market at some future date. Fortunately, in two of the three forms of potential competition, such subjective evidence has no role to play. Clearly, in the case of a dominant entrant, the only issue is whether the firm's entry by acquisition will so upset objective market forces as to substantially reduce future competition. Since the firm will have already taken steps to enter the market by the time a § 7 action is filed, its statements of subjective intent are irrelevant. Similarly, when the Government proceeds on the theory that the acquiring firm is a perceived potential entrant, testimony as to the subjective intent of the acquiring firm is not probative. The perceived potential entrant exerts a procompetitive effect because companies in the market perceive it as a potential entrant. The companies in the market may entertain this perception whether the perceived potential entrant is in fact a potential entrant or not. Thus, a firm on the fringe of the market may exert a procompetitive effect even if it has no intention of entering the market, so long as it seems to those within the market that it may have such an intention. [17] It follows that subjective testimony by the managers of the perceived potential entrant is irrelevant. [18] However, subjective statements of management are probative in cases where the acquiring firm is alleged to be an actual potential entrant. First, management's statements that it does not intend to make a de novo market entry, together with its associated reasons, provide an expert judgment on the conclusions to be drawn by the trier of fact from the objective market forces. Just as the Government may introduce expert testimony to inform and guide the trial court with respect to the appropriate business judgments to be derived from the objective data, so too the defendant is entitled to present the evaluation of its own experts who may include its management personnel. Although such evidence from management is obviously biased and self-serving, it is nonetheless admissible to prove that the objective market pressures do not favor a de novo entry. More significantly, management's statement of subjective intent, if believed, affects the firm's status as an actual potential entrant. As indicated above, the actual potential entrant's entry by acquisition is anticompetitive only if it eliminates some future possibility that it might have entered de novo. An unequivocal statement by management that it has absolutely no intention of entering the market de novo at any time in the future is relevant to the issue of whether the possibility of such an entry exists. After all, the character of management is itself essentially an objective factor in determining whether the acquiring firm is an actual potential entrant. But although subjective evidence is probative and admissible in actual potential-entry cases, its utility is sharply limited. We have certainly never suggested that subjective evidence of likely future entry is required to make out a § 7 case. On the contrary, in United States v. Penn-Olin Chemical Co., 378 U. S., at 175, where the objective evidence of potential entry was strong, we said,  Unless we are going to require subjective evidence, this array of probability certainly reaches the prima facie stage. As we have indicated, to require more would be to read the statutory requirement of reasonable probability into a requirement of certainty. This we will not do. (Emphasis added.) Nor do our prior cases hold that the district courts are bound by subjective statements of company officials that they have no intention of making a de novo entry. We have emphasized that the decision whether the acquiring firm is an actual potential entrant is, in the last analysis, an independent one to be made by the trial court on the basis of all relevant evidence properly weighted according to its credibility. Thus, in FTC v. Procter & Gamble Co ., for example, managers of Procter & Gamble testified that they had no intention of making a de novo entry, and the Court of Appeals thought itself bound by that testimony. See 386 U. S., at 580, and id., at 585 (Harlan, J., concurring). We reversed, holding that [t]he evidence . . . clearly shows that Procter was the most likely entrant. Id., at 580. As these cases indicate, subjective evidence has, at best, only a marginal role to play in actual potential-entry cases. In order to make out a prima facie case, the Government need only show that objectively measurable market data favor a de novo entry and that the alleged potential entrant has the economic capability to make such an entry. To be sure, the defendant may then introduce subjective testimony in rebuttal, and in the rare case where the objective evidence is evenly divided, it is conceivable that extremely credible subjective evidence might tip the balance. But where objectively measurable market forces make clear that it is in a firm's economic self-interest to make a de novo entry and that the firm has the economic capability to do so, I would hold that it is error for the District Court to conclude that the firm is not an actual potential entrant on the basis of testimony by company officials as to the firm's future intent. [19] The reasons for so limiting the role of subjective evidence are not difficult to discern. Such evidence should obviously be given no weight if it is not credible. But it is in the very nature of such evidence that in the usual case it is not worthy of credit. [20] First, any statement of future intent will be inherently self-serving. A defendant in a § 7 case such as this wishes to enter the market by acquisition and its managers know that its ability to do so depends upon whether it can convince a court that it would not have entered de novo if entry by acquisition were prevented. It is thus strongly in management's interest to represent that it has no intention of entering de novo —a representation which is not subject to external verification and which is so speculative in nature that it could virtually never serve as the predicate for a perjury charge. Moreover, in a case where the objective evidence strongly favors entry de novo, a firm which asks us to believe that it does not intend to enter de novo by implication asks us to believe that it does not intend to act in its own economic self-interest. But corporations are, after all, profit-making institutions, and, absent special circumstances, they can be expected to follow courses of action most likely to maximize profits. [21] The trier of fact should, therefore, look with great suspicion upon a suggestion that a company with an opportunity to expand its market and the means to seize upon that opportunity will follow a deliberate policy of self-abnegation if the route of expansion first selected is legally foreclosed to it. Thus, in most cases, subjective statements contrary to the objective evidence simply should not be believed. But even if the threshold credibility gap is breached, it still does not follow that subjective statements of future intent should outweigh strong objective evidence to the contrary. Even if it is true that management has no present intent of entering the market de novo, the possibility remains that it may change its mind as the objective factors favoring such entry are more clearly perceived. Of course, it is possible that management will adamantly continue to close its eyes to the company's own self-interest. But in that event, the chance remains that the stockholders will install new, more competent officers who will better serve their interests. All of these possibilities are abruptly and irrevocably aborted when the firm is allowed to enter the market by acquisition. And while it is conceivable that none of the possibilities will materialize if entry by acquisition is prevented, it is absolutely certain that they will not materialize if such entry is permitted. All that is necessary to trigger a § 7 violation is a finding by the trial court of a reasonable chance of future competition. In most cases, strong objective evidence will be sufficient to create such a chance despite even credible subjective statements to the contrary. [22] To summarize, then, I would not hold that subjective evidence may never be considered in the context of an actual potential-entry case. Such evidence should always be admissible as expert, although biased, commentary on the nature of the objective evidence. And in a rare case, the subjective evidence may serve as a counterweight to weak or inconclusive objective data. But when the district court can point to no compelling reason why the subjective testimony should be believed or when the objective evidence strongly points to the feasibility of entry de novo, I would hold that it is error for the court to rely in any way upon management's subjective statements as to its own future intent.",Problems of ProofThe Role of Subjective Evidence
+539,110512,1,2,"The starting point for any discussion of sex-based wage discrimination claims must be the Equal Pay Act of 1963, enacted as an amendment to the Fair Labor Standards Act of 1938, 29 U. S. C. §§ 201-219 (1976 ed., Supp. III). It was there that Congress, after 18 months of careful and exhaustive study, specifically addressed the problem of sex-based wage discrimination. The Equal Pay Act states that employers shall not discriminate on the basis of sex by paying different wages for jobs that require equal skill, effort, and responsibility. In adopting the equal pay for equal work formula, Congress carefully considered and ultimately rejected the equal pay for comparable worth standard advanced by respondents and several amici. As the legislative history of the Equal Pay Act amply demonstrates, Congress realized that the adoption of the comparable-worth doctrine would ignore the economic realities of supply and demand and would involve both governmental agencies and courts in the impossible task of ascertaining the worth of comparable work, an area in which they have little expertise. The legislative history of the Equal Pay Act begins in 1962 when Representatives Green and Zelenko introduced two identical bills, H. R. 8898 and H. R. 10226 respectively, representing the Kennedy administration's proposal for equal pay legislation. Both bills stated in pertinent part: SEC. 4. No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to any employee at a rate less than the rate at which he pays wages to any employee of the opposite sex for work of comparable character on jobs the performance of which requires comparable skills, except where such payment is made pursuant to a seniority or merit increase system which does not discriminate on the basis of sex. H. R. 8898, 87th Cong., 1st Sess. (1961); H. R. 10226, 87th Cong., 2d Sess. (1962) (emphasis supplied). [1] During the extensive hearings on the proposal, the administration strenuously urged that Congress adopt the comparable language, noting that the comparability of different jobs could be determined through job evaluation procedures. Hearings on H. R. 8898, H. R. 10226 before the Select Subcommittee on Labor of the House Committee on Education and Labor, 87th Cong., 2d Sess., 16, 27 (1962) (testimony of Secretary of Labor Arthur Goldberg and Assistant Secretary of Labor Esther Peterson). A bill containing the comparable-work formula, then denominated H. R. 11677, was reported out of the House Committee on Education and Labor and reached the full House. Once there, Representative St. George objected to the comparable work language of the bill and offered an amendment which limited equal pay claims to those for equal work on jobs, the performance of which requires equal skills. 108 Cong. Rec. 14767 (1962). As she explained, her purpose was to limit wage discrimination claims to the situation where men and women were paid differently for performing the same job. What we want to do in this bill is to make it exactly what it says. It is called equal pay for equal work in some of the committee hearings. There is a great difference between the word `comparable' and the word `equal'. ..... . . . The word `comparable' opens up great vistas. It gives tremendous latitude to whoever is to be arbitrator in these disputes. Ibid. (Emphasis supplied.) Representative Landrum echoed those remarks. He stressed that the St. George amendment would prevent the trooping around all over the country of employees of the Labor Department harassing business with their various interpretations of the term `comparable' when `equal' is capable of the same definition throughout the United States. Id., at 14768. The administration, represented by Representatives Zelenko and Green, vigorously urged the House to reject the St. George amendment. They observed that the equal work standard was narrower than the existing equal pay for comparable work language and cited correspondence from Secretary of Labor Goldberg that comparable is a key word in our proposal. Id., at 14768-14769. The House, however, rejected that advice and adopted the St. George amendment. When the Senate considered the bill, it too rejected the comparable work theory in favor of the equal work standard. Because the Conference Committee failed to report a bill out of Committee, enactment of equal pay legislation was delayed until 1963. Equal pay legislation, containing the St. George amendment, was reintroduced at the beginning of the session. The congressional debate on that legislation leaves no doubt that Congress clearly rejected the entire notion of comparable worth. For example, Representative Goodell, a cosponsor of the Act, stressed the significance of the change from comparable work to equal work. [2] I think it is important that we have clear legislative history at this point. Last year when the House changed the word `comparable' to `equal' the clear intention was to narrow the whole concept. We went from `comparable' to `equal' meaning that the jobs involved should be virtually identical, that is, that they would be very much alike or closely related to each other. We do not expect the Labor Department to go into an establishment and attempt to rate jobs that are not equal. We do not want to hear the Department say, `Well, they amount to the same thing,' and evaluate them so that they come up to the same skill or point. We expect this to apply only to jobs that are substantially identical or equal. 109 Cong. Rec. 9197 (1963) (emphasis supplied). Representative Frelinghuysen agreed with those remarks. [W]e can expect that the administration of the equal pay concept, while fair and effective, will not be excessive nor excessively wide ranging. What we seek to insure, where men and women are doing the same job under the same working conditions[,] that they will receive the same pay. It is not intended that either the Labor Department or individual employees will be equipped with hunting licenses. ..... . . . [ The EPA ] is not intended to compare unrelated jobs, or jobs that have been historically and normally considered by the industry to be different.  Id., at 9196 (emphasis supplied). [3] Thus, the legislative history of the Equal Pay Act clearly reveals that Congress was unwilling to give either the Federal Government or the courts broad authority to determine comparable wage rates. Congress recognized that the adoption of such a theory would ignore economic realities and would result in major restructuring of the American economy. Instead, Congress concluded that governmental intervention to equalize wage differentials was to be undertaken only within one circumstance: when men's and women's jobs were identical or nearly so, hence unarguably of equal worth. It defies common sense to believe that the same Congress— which, after 18 months of hearings and debates, had decided in 1963 upon the extent of federal involvement it desired in the area of wage rate claims—intended sub silentio to reject all of this work and to abandon the limitations of the equal work approach just one year later, when it enacted Title VII. Title VII Congress enacted the Civil Rights Act of 1964, 42 U. S. C. § 2000a et seq., one year after passing the Equal Pay Act. Title VII prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. 42 U. S. C. § 2000e-2 (a)(1). The question is whether Congress intended to completely turn its back on the equal work standard enacted in the Equal Pay Act of 1963 when it adopted Title VII only one year later. The Court answers that question in the affirmative, concluding that Title VII must be read more broadly than the Equal Pay Act. In so holding, the majority wholly ignores this Court's repeated adherence to the doctrine of in pari materia, namely, that [w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. Radzanower v. Touche Ross & Co., 426 U. S. 148, 153 (1976), citing Morton v. Mancari, 417 U. S. 535, 550-551 (1974); United States v. United Continental Tuna Corp., 425 U. S. 164, 169 (1976). In Continental Tuna, for example, the lower court held that an amendment to the Suits in Admiralty Act allowed plaintiffs to sue the United States under that Act and ignore the applicable and more stringent provisions of the previously enacted Public Vessels Act. We rejected that construction because it amounted to a repeal of the Public Vessels Act by implication. We recognized that such an evasion of the congressional purpose reflected in the restrictive provisions would not be permitted absent some clear statement by Congress that such was intended by the later statute. Similarly, in Train v. Colorado Public Interest Research Group, 426 U. S. 1 (1976), this Court rejected a construction of the Federal Water Control Act which would have substantially altered the regulation scheme established under the Atomic Energy Act, without a clear indication of legislative intent. Id., at 24. When those principles are applied to this case, there can be no doubt that the Equal Pay Act and Title VII should be construed in pari materia. The Equal Pay Act is the more specific piece of legislation, dealing solely with sex-based wage discrimination, and was the product of exhaustive congressional study. Title VII, by contrast, is a general antidiscrimination provision, passed with virtually no consideration of the specific problem of sex-based wage discrimination. See General Electric Co. v. Gilbert, 429 U. S. 125, 143 (1976) (the legislative history of the sex discrimination amendment is notable primarily for its brevity). [4] Most significantly, there is absolutely nothing in the legislative history of Title VII which reveals an intent by Congress to repeal by implication the provisions of the Equal Pay Act. Quite the contrary, what little legislative history there is on the subject— such as the comments of Senators Clark and Bennett and Representative Celler, and the contemporaneous interpretation of the EEOC—indicates that Congress intended to incorporate the substantive standards of the Equal Pay Act into Title VII so that sex-based wage discrimination claims would be governed by the equal work standard of the Equal Pay Act and by that standard alone. See discussion infra, at 190-197. In order to the reach the result it so desperately desires, the Court neatly solves the problem of this contrary legislative history by simply giving it no weight. Ante, at 172, n. 12, 176, and n. 16. But it cannot be doubted that Chief Justice Marshall stated the correct rule that [w]here the mind labors to discover the design of the legislature, it seizes every thing from which aid can be derived . . . . United States v. Fisher, 2 Cranch 358, 386 (1805). In this case, when all of the pieces of legislative history are considered in toto, the Court's version of the legislative history of Title VII is barely plausible, say nothing of convincing. Title VII was first considered by the House, where the prohibition against sex discrimination was added on the House floor. When the bill reached the Senate it bypassed the Senate Committee system and was presented directly to the full Senate. It was there that concern was expressed about the relation of the Title VII sex discrimination ban to the Equal Pay Act. In response to questions by Senator Dirksen, Senator Clark, the floor manager for the bill, prepared a memorandum in which he attempted to put to rest certain objections which he believed to be unfounded. Senator Clark's answer to Senator Dirksen reveals that Senator Clark believed that all cases of wage discrimination under Title VII would be treated under the standards of the Equal Pay Act:  Objection. The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.  Answer. The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII.  110 Cong. Rec. 7217 (1964) (emphasis added). In this passage, Senator Clark asserted that the sex discrimination provisions of Title VII were necessary, notwithstanding the Equal Pay Act, because (a) the Equal Pay Act had numerous exemptions for various types of businesses, and (b) Title VII covered discrimination in access ( e. g., assignment and promotion) to jobs, not just compensation. In addition, Senator Clark made clear that in the compensation area the equal work standard would continue to be the applicable standard. He explained, in answer to Senator Dirksen's concern, that when different jobs were at issue, the Equal Pay Act's legal standard—the equal work standard— would apply to limit the reach of Title VII. Thus Senator Clark rejected as unfounded the objections that the sex provisions of Title VII were unnecessary on the one hand or extended beyond the equal work standard on the other. Notwithstanding Senator Clark's explanation, Senator Bennett remained concerned that, absent an explicit cross-reference to the Equal Pay Act, the wholesale insertion of the word sex in Title VII could nullify the carefully conceived Equal Pay Act standard. 110 Cong. Rec. 13647 (1964). Accordingly, he offered, and the Senate accepted, the following amendment to Title VII: It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [§ 6 (d) of the Equal Pay Act]. Although the language of the Bennett Amendment is ambiguous, the most plausible interpretation of the Amendment is that it incorporates the substantive standard of the Equal Pay Act—the equal pay for equal work standard—into Title VII. A number of considerations support that view. In the first place, that interpretation is wholly consistent with, and in fact confirms, Senator Clark's earlier explanation of Title VII. Second, in the limited time available to Senator Bennett when he offered his amendment—the time for debate having been limited by cloture—he explained the Amendment's purpose. [5] Mr. President, after many years of yearning by members of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called Equal Pay Act, which became effective only yesterday. By this time, programs have been established for the effective administration of this act. Now when the civil rights bill is under consideration, in which the word `sex' has been inserted in many places, I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word `sex' in the bill and in the Equal Pay Act. The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified. 110 Cong. Rec. 13647 (1964) (emphasis supplied). It is obvious that the principal way in which the Equal Pay Act could be nullified would be to allow plaintiffs unable to meet the equal pay for equal work standard to proceed under Title VII asserting some other theory of wage discrimination, such as comparable worth. If plaintiffs can proceed under Title VII without showing that they satisfy the equal work criterion of the Equal Pay Act, one would expect all plaintiffs to file suit under the broader Title VII standard. Such a result would, for all practical purposes, constitute an implied repeal of the equal work standard of the Equal Pay Act and render that Act a nullity. This was precisely the result Congress sought to avert when it adopted the Bennett Amendment, and the result the Court today embraces. Senator Bennett confirmed this interpretation just one year later. The Senator expressed concern as to the proper interpretation of his Amendment and offered his written understanding of the Amendment. The Amendment therefore means that it is not an unlawful employment practice: . . .(b) to have different standards of compensation for nonexempt employees, where such differentiation is not prohibited by the equal pay amendment to the Fair Labor Standards Act. Simply stated, the [ Bennett ] amendment means that discrimination in compensation on account of sex does not violate title VII unless it also violates the Equal Pay Act.  111 Cong. Rec. 13359 (1965) (emphasis supplied). Senator Dirksen agreed that this interpretation was precisely the one that he, Senator Humphrey, and their staffs had in mind when the Senate adopted the Bennett Amendment. Id., at 13360. He added: I trust that that will suffice to clear up in the minds of anyone, whether in the Department of Justice or elsewhere, what the Senate intended when that amendment was accepted. Ibid. [6] We can glean further insight into the proper interpretation of the Bennett Amendment from the comments of Representative Celler, the Chairman of the House Judiciary Committee and sponsor of Title VII. After the Senate added the Bennett Amendment to Title VII and sent the bill to the House, Representative Celler set out in the record the understanding of the House that sex-based compensation claims would not satisfy Title VII unless they met the equal work standards of the Equal Pay Act. He explained that the Bennett Amendment [p]rovides that compliance with the [EPA] satisfies the requirement of the title barring discrimination because of sex—[§ 703 (h)]. 110 Cong. Rec. 15896 (1964). The majority discounts this statement because it is somewhat imprecise. Ante, at 176. I find it difficult to believe that a comment to the full House made by the sponsor of Title VII, who obviously understood its provisions, including its amendments, is of no aid whatsoever to the inquiry before us. [7] Finally, the contemporaneous interpretations of the Bennett Amendment by the EEOC, which are entitled to great weight since they were issued while the intent of Congress was still fresh in the administrator's mind, further buttresses petitioners' interpretation of the Amendment. Udall v. Tallman, 380 U. S. 1, 16 (1965); General Electric Co. v. Gilbert, 429 U. S., at 142. The EEOC interpretations clearly state that the Equal Pay Act's equal work standard is incorporated into Title VII as the standard which must be met by plaintiffs alleging sex-based compensation claims under Title VII. The Commission's 1965 Guidelines on Discrimination Because of Sex explain: Title VII requires that its provisions be harmonized with the Equal Pay Act (section 6 (d) of the Fair Labor Standards Act of 1938, 29 U. S. C. § 206 (d)) in order to avoid conflicting interpretations or requirements with respect to situations to which both statutes are applicable. Accordingly, the Commission interprets section 703 ( h ) to mean that the standards of `equal pay for equal work' set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII. However, it is the judgment of the Commission that the employee coverage of the prohibition against discrimination in compensation because of sex is coextensive with that of the other prohibitions in section 703, and is not limited by § 703 (h) to those employees covered by the Fair Labor Standards Act. 29 CFR § 1604.7 (1966). (Emphasis supplied.) Three weeks after the EEOC issued its Guidelines, the General Counsel explained the Guidelines in an official opinion letter. [8] He explained: The Commission, as indicated in § 1604.7 of the Guidelines issued November 24, 1965, 30 F. R. 14928, has decided that section 703 (h), Title VII of the Civil Rights Act of 1964 incorporates the definition of discrimination in compensation found in the Equal Pay Act, including the four enumerated exceptions . . . . General Counsel's opinion of December 29, 1965, App. to Brief for Petitioners 7a. (Emphasis supplied.) Thus EEOC's contemporaneous interpretation of the Bennett Amendment leaves no room for doubt: The Bennett Amendment incorporates the equal work standard of discrimination into Title VII. [9] The Court blithely ignores all of this legislative history and chooses to interpret the Bennett Amendment as incorporating only the Equal Pay Act's four affirmative defenses, and not the equal work requirement. [10] That argument does not survive scrutiny. In the first place, the language of the Amendment draws no distinction between the Equal Pay Act's standard for liability—equal pay for equal work—and the Act's defenses. Nor does any Senator or Congressman even come close to suggesting that the Amendment incorporates the Equal Pay Act's affirmative defenses into Title VII, but not the equal work standard itself. Quite the contrary, the concern was that Title VII would render the Equal Pay Act a nullity. It is only too obvious that reading just the four affirmative defenses of the Equal Pay Act into Title VII does not protect the careful draftsmanship of the Equal Pay Act. We must examine statutory words in a manner that `reconstitute[s] the gamut of values current at the time when the words were uttered.' National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 620 (1967) (quoting L. Hand, J.). In this case, it stands Congress' concern on its head to suppose that Congress sought to incorporate the affirmative defenses, but not the equal work standard. It would be surprising if Congress in 1964 sought to reverse its decision in 1963 to require a showing of equal work as a predicate to an equal pay claim and at the same time carefully preserve the four affirmative defenses. Moreover, even on its own terms the Court's argument is unpersuasive. The Equal Pay Act contains four statutory defenses: different compensation is permissible if the differential is made by way of (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) is based on any other factor other than sex. 29 U. S. C. § 206 (d) (1). The flaw in interpreting the Bennett Amendment as incorporating only the four defenses of the Equal Pay Act into Title VII is that Title VII, even without the Bennett Amendment, contains those very same defenses. [11] The opening sentence of § 703 (h) protects differentials and compensation based on seniority, merit, or quantity or quality of production. These are three of the four EPA defenses. The fourth EPA defense, a factor other than sex, is already implicit in Title VII because the statute's prohibition of sex discrimination applies only if there is discrimination on the basis of sex. Under the Court's interpretation, the Bennett Amendment, the second sentence of § 703 (h), is mere surplusage. United States v. Menasche, 348 U. S. 528, 538-539 (1955) (It is our duty `to give effect, if possible, to every clause and word of a statute,' Montclair v. Ramsdell, 107 U. S. 147, 152, rather than emasculate an entire section). [12] The Court's answer to this argument is curious. It suggests that repetition ensures that the provisions would be consistently interpreted by the courts. Ante, at 170. But that answer only speaks to the purpose for incorporating the defenses in each statute, not for stating the defenses twice in the same statute. Courts are not quite as dense as the majority assumes. In sum, Title VII and the Equal Pay Act, read together, provide a balanced approach to resolving sex-based wage discrimination claims. Title VII guarantees that qualified female employees will have access to all jobs, and the Equal Pay Act assures that men and women performing the same work will be paid equally. Congress intended to remedy wage discrimination through the Equal Pay Act standards, whether suit is brought under that statute or under Title VII. What emerges is that Title VII would have been construed in pari materia even without the Bennett Amendment, and that the Amendment serves simply to insure that the equal work standard would be the standard by which all wage compensation claims would be judged.",The Equal Pay Act
+540,112102,2,1,"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493, 501 (1939). Since the procedural rules of its courts are surely matters on which a State is competent to legislate, it follows that a State may apply its own procedural rules to actions litigated in its courts. The issue here, then, can be characterized as whether a statute of limitations may be considered as a procedural matter for purposes of the Full Faith and Credit Clause. Petitioner initially argues that McElmoyle v. Cohen, supra , was wrongly decided when handed down. The holding of McElmoyle, that a statute of limitations may be treated as procedural and thus may be governed by forum law even when the substance of the claim must be governed by another State's law, rested on two premises, one express and one implicit. The express premise was that this reflected the rule in international law at the time the Constitution was adopted. This is indisputably correct, see Le Roy v. Crowninshield, 15 F. Cas. 362, 365, 371 (No. 8,269) (Mass. 1820) (Story, J.) (collecting authorities), and is not challenged by petitioner. The implicit premise, which petitioner does challenge, was that this rule from international law could properly have been applied in the interstate context consistently with the Full Faith and Credit Clause. The first sentence of the Full Faith and Credit Clause was not much discussed at either the Constitutional Convention or the state ratifying conventions. However, the most pertinent comment at the Constitutional Convention, made by James Wilson of Pennsylvania, displays an expectation that would be interpreted against the background of principles developed in international conflicts law. See 2 M. Farrand, The Records of the Federal Convention of 1787, p. 488 (rev. ed. 1966). Moreover, this expectation was practically inevitable, since there was no other developed body of conflicts law to which courts in our new Union could turn for guidance. [1] The reported state cases in the decades immediately following ratification of the Constitution show that courts looked without hesitation to international law for guidance in resolving the issue underlying this case: which State's law governs the statute of limitations. The state of international law on that subject being as we have described, these early decisions uniformly concluded that the forum's statute of limitations governed even when it was longer than the limitations period of the State whose substantive law governed the merits of the claim. See Nash v. Tupper, 1 Cai. 402, 412-413 (N. Y. 1803) (citing unreported 1795 New York case, Page v. Cable, holding the same); Pearsall v. Dwight, 2 Mass. 84, 89-90 (1806); Ruggles v. Keeler, 3 Johns. 263, 267-268 (N. Y. 1808) (Kent, C. J.); Graves v. Graves's Executor, 5 Ky. 207, 208-209 (1810). By 1820, the use of the forum statute of limitations in the interstate context was acknowledged to be well settled. Medbury v. Hopkins, 3 Conn. 472, 473 (1820); accord, Le Roy v. Crowninshield, supra, at 371 (settled); cf. McCluny v. Silliman, 3 Pet. 270, 276-277 (1830) (well settled); Hawkins v. Barney's Lessee, 5 Pet. 457, 466 (1831) (not to be questioned). Obviously, judges writing in the era when the Constitution was framed and ratified thought the use of the forum statute of limitations to be proper in the interstate context. Their implicit understanding that the Full Faith and Credit Clause did not preclude reliance on the international law rule carries great weight. Moreover, this view of statutes of limitations as procedural for purposes of choice of law followed quite logically from the manner in which they were treated for domestic-law purposes. At the time the Constitution was adopted the rule was already well established that suit would lie upon a promise to repay a debt barred by the statute of limitations — on the theory, as expressed by many courts, that the debt constitutes consideration for the promise, since the bar of the statute does not extinguish the underlying right but merely causes the remedy to be withheld. See Little v. Blunt, 26 Mass. 488, 492 (1830) ([T]he debt remained, the remedy was gone); see also Wetzell v. Bussard, 11 Wheat. 309, 311 (1826). This is the same theory, of course, underlying the conflicts rule: the right subsists, and the forum may choose to allow its courts to provide a remedy, even though the jurisdiction where the right arose would not. See Graves v. Graves's Executor, supra, at 208-209 (The statute of limitations. . . does not destroy the right but withholds the remedy. It would seem to follow, therefore, that the lex fori, and not the lex loci was to prevail with respect to the time when the action should be commenced). The historical record shows conclusively, we think, that the society which adopted the Constitution did not regard statutes of limitations as substantive provisions, akin to the rules governing the validity and effect of contracts, but rather as procedural restrictions fashioned by each jurisdiction for its own courts. As Chancellor Kent explained in his landmark work, 2 J. Kent, Commentaries on American Law 462-463 (2d ed. 1832): The period sufficient to constitute a bar to the litigation of sta[l]e demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience. Unable to sustain the contention that under the original understanding of the Full Faith and Credit Clause statutes of limitations would have been considered substantive, petitioner argues that we should apply the modern understanding that they are so. It is now agreed, petitioner argues, that the primary function of a statute of limitations is to balance the competing substantive values of repose and vindication of the underlying right; and we should apply that understanding here, as we have applied it in the area of choice of law for purposes of federal diversity jurisdiction, where we have held that statutes of limitations are substantive, see Guaranty Trust Co. v. York, 326 U. S. 99 (1945). To address the last point first: Guaranty Trust itself rejects the notion that there is an equivalence between what is substantive under the Erie doctrine and what is substantive for purposes of conflict of laws. 326 U. S., at 108. Except at the extremes, the terms substance and procedure precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn. In the context of our Erie jurisprudence, see Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that purpose is to establish (within the limits of applicable federal law, including the prescribed Rules of Federal Procedure) substantial uniformity of predictable outcome between cases tried in a federal court and cases tried in the courts of the State in which the federal court sits. See Guaranty Trust, supra, at 109; Hanna v. Plumer, 380 U. S. 460, 467, 471-474 (1965). The purpose of the substance-procedure dichotomy in the context of the Full Faith and Credit Clause, by contrast, is not to establish uniformity but to delimit spheres of state legislative competence. How different the two purposes (and hence the appropriate meanings) are is suggested by this: It is never the case under Erie that either federal or state law — if the two differ — can properly be applied to a particular issue, cf. Erie, supra, at 72-73; but since the legislative jurisdictions of the States overlap, it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another, see Shutts III, 472 U. S., at 823 ([I]n many situations a state court may be free to apply one of several choices of law). Today, for example, we do not hold that Kansas must apply its own statute of limitations to a claim governed in its substance by another State's law, but only that it may. But to address petitioner's broader point of which the Erie argument is only a part — that we should update our notion of what is sufficiently substantive to require full faith and credit: We cannot imagine what would be the basis for such an updating. As we have just observed, the words substantive and procedural themselves (besides not appearing in the Full Faith and Credit Clause) do not have a precise content, even (indeed especially) as their usage has evolved. And if one consults the purpose of their usage in the full-faith-and-credit context, that purpose is quite simply to give both the forum State and other interested States the legislative jurisdiction to which they are entitled. If we abandon the currently applied, traditional notions of such entitlement we would embark upon the enterprise of constitutionalizing choice-of-law rules, with no compass to guide us beyond our own perceptions of what seems desirable. [2] There is no more reason to consider recharacterizing statutes of limitation as substantive under the Full Faith and Credit Clause than there is to consider recharacterizing a host of other matters generally treated as procedural under conflicts law, and hence generally regarded as within the forum State's legislative jurisdiction. See, e. g., Restatement (Second) of Conflict of Laws § 131 (remedies available), § 133 (placement of burden of proof), § 134 (burden of production), § 135 (sufficiency of the evidence), § 139 (privileges) (1971). In sum, long established and still subsisting choice-of-law practices that come to be thought, by modern scholars, unwise, do not thereby become unconstitutional. If current conditions render it desirable that forum States no longer treat a particular issue as procedural for conflict of laws purposes, those States can themselves adopt a rule to that effect, e. g., Heavner v. Uniroyal, Inc., 63 N. J. 130, 135-141, 305 A. 2d 412, 415-418 (1973) (statute of limitations), or it can be proposed that Congress legislate to that effect under the second sentence of the Full Faith and Credit Clause, cf. Mills v. Duryee, 7 Cranch 481, 485 (1813); Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S., at 502. It is not the function of this Court, however, to make departures from established choice-of-law precedent and practice constitutionally mandatory. We hold, therefore, that Kansas did not violate the Full Faith and Credit Clause when it applied its own statute of limitations.",The Full Faith and Credit Clause provides:
+541,109833,2,2,"Price is the central nervous system of the economy, United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 226 n. 59, and an agreement that interfere[s] with the setting of price by free market forces is illegal on its face. United States v. Container Corp., 393 U. S. 333, 337. In this case we are presented with an agreement among competitors to refuse to discuss prices with potential customers until after negotiations have resulted in the initial selection of an engineer. While this is not price fixing as such, no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement. It operates as an absolute ban on competitive bidding, applying with equal force to both complicated and simple projects and to both inexperienced and sophisticated customers. As the District Court found, the ban impedes the ordinary give and take of the market place, and substantially deprives the customer of the ability to utilize and compare prices in selecting engineering services. 404 F. Supp. 457, 460. On its face, this agreement restrains trade within the meaning of § 1 of the Sherman Act. The Society's affirmative defense confirms rather than refutes the anticompetitive purpose and effect of its agreement. The Society argues that the restraint is justified because bidding on engineering services is inherently imprecise, would lead to deceptively low bids, and would thereby tempt individual engineers to do inferior work with consequent risk to public safety and health. [19] The logic of this argument rests on the assumption that the agreement will tend to maintain the price level; if it had no such effect, it would not serve its intended purpose. The Society nonetheless invokes the Rule of Reason, arguing that its restraint on price competition ultimately inures to the public benefit by preventing the production of inferior work and by insuring ethical behavior. As the preceding discussion of the Rule of Reason reveals, this Court has never accepted such an argument. It may be, as petitioner argues, that competition tends to force prices down and that an inexpensive item may be inferior to one that is more costly. There is some risk, therefore, that competition will cause some suppliers to market a defective product. Similarly, competitive bidding for engineering projects may be inherently imprecise and incapable of taking into account all the variables which will be involved in the actual performance of the project. [20] Based on these considerations, a purchaser might conclude that his interest in quality—which may embrace the safety of the end product—outweighs the advantages of achieving cost savings by pitting one competitor against another. Or an individual vendor might independently refrain from price negotiation until he has satisfied himself that he fully understands the scope of his customers' needs. These decisions might be reasonable; indeed, petitioner has provided ample documentation for that thesis. But these are not reasons that satisfy the Rule; nor are such individual decisions subject to antitrust attack. The Sherman Act does not require competitive bidding; [21] it prohibits unreasonable restraints on competition. Petitioner's ban on competitive bidding prevents all customers from making price comparisons in the initial selection of an engineer, and imposes the Society's views of the costs and benefits of competition on the entire marketplace. It is this restraint that must be justified under the Rule of Reason, and petitioner's attempt to do so on the basis of the potential threat that competition poses to the public safety and the ethics of its profession is nothing less than a frontal assault on the basic policy of the Sherman Act. The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. The heart of our national economic policy long has been faith in the value of competition. Standard Oil Co. v. FTC, 340 U. S. 231, 248. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain— quality, service, safety, and durability—and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers. Even assuming occasional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad. The fact that engineers are often involved in large-scale projects significantly affecting the public safety does not alter our analysis. Exceptions to the Sherman Act for potentially dangerous goods and services would be tantamount to a repeal of the statute. In our complex economy the number of items that may cause serious harm is almost endless—automobiles, drugs, foods, aircraft components, heavy equipment, and countless others, cause serious harm to individuals or to the public at large if defectively made. The judiciary cannot indirectly protect the public against this harm by conferring monopoly privileges on the manufacturers. By the same token, the cautionary footnote in Goldfarb, 421 U. S., at 788-789, n. 17, quoted supra, cannot be read as fashioning a broad exemption under the Rule of Reason for learned professions. We adhere to the view expressed in Goldfarb that, by their nature, professional services may differ significantly from other business services, and, accordingly, the nature of the competition in such services may vary. Ethical norms may serve to regulate and promote this competition, and thus fall within the Rule of Reason. [22] But the Society's argument in this case is a far cry from such a position. We are faced with a contention that a total ban on competitive bidding is necessary because otherwise engineers will be tempted to submit deceptively low bids. Certainly, the problem of professional deception is a proper subject of an ethical canon. But, once again, the equation of competition with deception, like the similar equation with safety hazards, is simply too broad; we may assume that competition is not entirely conducive to ethical behavior, but that is not a reason, cognizable under the Sherman Act, for doing away with competition. In sum, the Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable. Such a view of the Rule would create the sea of doubt on which Judge Taft refused to embark in Addyston, 85 F., at 284, and which this Court has firmly avoided ever since.",The Ban on Competitive Bidding.
+542,118240,1,1,"Section 954(d)(1) provides: No payment shall be made under this section except upon application therefor which is submitted to the National Endowment for the Arts in accordance with regulations issued and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that— (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. The phrase taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public is what my grammar-school teacher would have condemned as a dangling modifier: There is no noun to which the participle is attached (unless one jumps out of paragraph (1) to press Chairperson into service). Even so, it is clear enough that the phrase is meant to apply to those who do the judging. The application reviewers must take into account general standards of decency and respect for the diverse beliefs and values of the American public when evaluating artistic excellence and merit. One can regard this as either suggesting that decency and respect are elements of what Congress regards as artistic excellence and merit, or as suggesting that decency and respect are factors to be taken into account in addition to artistic excellence and merit. But either way, it is entirely, 100% clear that decency and respect are to be taken into account in evaluating applications. This is so apparent that I am at a loss to understand what the Court has in mind (other than the gutting of the statute) when it speculates that the statute is merely advisory. Ante, at 581. General standards of decency and respect for Americans' beliefs and values must (for the statute says that the Chairperson shall ensure this result) be taken into account, see, e. g., American Heritage Dictionary 402 (3d ed. 1992) (consider . . . [t]o take into account; bear in mind), in evaluating all applications. This does not mean that those factors must always be dispositive, but it does mean that they must always be considered. The method of compliance proposed by the National Endowment for the Arts (NEA)— selecting diverse review panels of artists and nonartists that reflect a wide range of geographic and cultural perspectives—is so obviously inadequate that it insults the intelligence. A diverse panel membership increases the odds that, if and when the panel takes the factors into account, it will reach an accurate assessment of what they demand. But it in no way increases the odds that the panel will take the factors into consideration—much less ensures that the panel will do so, which is the Chairperson's duty under the statute. Moreover, the NEA's fanciful reading of § 954(d)(1) would make it wholly superfluous. Section 959(c) already requires the Chairperson to issue regulations and establish procedures . . . to ensure that all panels are composed, to the extent practicable, of individuals reflecting . . . diverse artistic and cultural points of view. The statute requires the decency and respect factors to be considered in evaluating all applications—not, for example, just those applications relating to educational programs, ante, at 584, or intended for a particular audience, ante, at 585. Just as it would violate the statute to apply the artistic excellence and merit requirements to only select categories of applications, it would violate the statute to apply the decency and respect factors less than universally. A reviewer may, of course, give varying weight to the factors depending on the context, and in some categories of cases (such as the Court's example of funding for symphony orchestras, ante, at 583) the factors may rarely if ever affect the outcome; but § 954(d)(1) requires the factors to be considered in every case. I agree with the Court that § 954(d)(1) imposes no categorical requirement, ante, at 581, in the sense that it does not require the denial of all applications that violate general standards of decency or exhibit disrespect for the diverse beliefs and values of Americans. Cf. § 954(d)(2) ([O]bscenity . . . shall not be funded). But the factors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the tak[e] into consideration clause cannot be regarded as mere surplusage; it means something, Potter v. United States, 155 U. S. 438, 446 (1894). And the something is that the decision maker, all else being equal, will favor applications that display decency and respect, and disfavor applications that do not. This unquestionably constitutes viewpoint discrimination. [1] That conclusion is not altered by the fact that the statute does not compe[l] the denial of funding, ante, at 581, any more than a provision imposing a five-point handicap on all black applicants for civil service jobs is saved from being race discrimination by the fact that it does not compel the rejection of black applicants. If viewpoint discrimination in this context is unconstitutional (a point I shall address anon), the law is invalid unless there are some situations in which the decency and respect factors do not constitute viewpoint discrimination. And there is none. The applicant who displays decency, that is, [c]onformity to prevailing standards of propriety or modesty, American Heritage Dictionary, at 483 (def. 2), and the applicant who displays respect, that is , deferential regard, for the diverse beliefs and values of the American people, id., at 1536 (def. 1), will always have an edge over an applicant who displays the opposite. And finally, the conclusion of viewpoint discrimination is not affected by the fact that what constitutes `decency'  or `the diverse values and beliefs of the American people'  is difficult to pin down, ante, at 583—any more than a civil service preference in favor of those who display Republican-Party values would be rendered nondiscriminatory by the fact that there is plenty of room for argument as to what Republican-Party values might be. The political context surrounding the adoption of the `decency and respect' clause, which the Court discusses at some length, ante, at 581, does not change its meaning or affect its constitutionality. All that is proved by the various statements that the Court quotes from the Report of the Independent Commission and the floor debates is (1) that the provision was not meant categorically to exclude any particular viewpoint (which I have conceded, and which is plain from the text), and (2) that the language was not meant to do anything that is unconstitutional. That in no way propels the Court's leap to the counter textual conclusion that the provision was merely aimed at reforming procedures, and cannot be utilized as a tool for invidious viewpoint discrimination, ante, at 582. It is evident in the legislative history that § 954(d)(1) was prompted by, and directed at, the public funding of such offensive productions as Serrano's Piss Christ, the portrayal of a crucifix immersed in urine, and Mapplethorpe's show of lurid homoerotic photographs. Thus, even if one strays beyond the plain text it is perfectly clear that the statute was meant to disfavor—that is, to discriminate against—such productions. Not to ban their funding absolutely, to be sure (though as I shall discuss, that also would not have been unconstitutional), but to make their funding more difficult. More fundamentally, of course, all this legislative history has no valid claim upon our attention at all. It is a virtual certainty that very few of the Members of Congress who voted for this language both (1) knew of, and (2) agreed with, the various statements that the Court has culled from the Report of the Independent Commission and the floor debate (probably conducted on an almost empty floor). And it is wholly irrelevant that the statute was a bipartisan proposal introduced as a counterweight to an alternative proposal that would directly restrict funding on the basis of viewpoint. See ante, at 581-582. We do not judge statutes as if we are surveying the scene of an accident; each one is reviewed, not on the basis of how much worse it could have been, but on the basis of what it says. See United States v. Estate of Romani, 523 U. S. 519, 535 (1998) (Scalia, J., concurring in part and concurring in judgment). It matters not whether this enactment was the product of the most partisan alignment in history or whether, upon its passage, the Members all linked arms and sang, The more we get together, the happier we'll be. It is not consonant with our scheme of government for a court to inquire into the motives of legislators. Tenney v. Brandhove, 341 U. S. 367, 377 (1951). The law at issue in this case is to be found in the text of § 954(d)(1), which passed both Houses and was signed by the President, U. S. Const., Art. I, § 7. And that law unquestionably disfavors—discriminates against—indecency and disrespect for the diverse beliefs and values of the American people. I turn, then, to whether such viewpoint discrimination violates the Constitution.",The Statute Means What It Says
+543,118240,1,2,"The Court devotes so much of its opinion to explaining why this statute means something other than what it says that it neglects to cite the constitutional text governing our analysis. The First Amendment reads: Congress shall make no law . . . abridging the freedom of speech. U. S. Const., Amdt. 1 (emphasis added). To abridge is to contract, to diminish; to deprive of. T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). With the enactment of § 954(d)(1), Congress did not abridge the speech of those who disdain the beliefs and values of the American public, nor did it abridge indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; [2] they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures ` aimed at the suppression of dangerous ideas.`  Regan v. Taxation with Representation of Wash., 461 U. S. 540, 550 (1983) (emphasis added) (quoting Cammarano v. United States, 358 U. S. 498, 513 (1959), in turn quoting Speiser v . Randall, 357 U. S. 513, 519 (1958)). The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily `infringe' a fundamental right is that—unlike direct restriction or prohibition—such a denial does not, as a general rule, have any significant coercive effect. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 237 (1987) (Scalia, J., dissenting). One might contend, I suppose, that a threat of rejection by the only available source of free money would constitute coercion and hence abridgment within the meaning of the First Amendment. Cf. Norwood v. Harrison, 413 U. S. 455, 465 (1973). I would not agree with such a contention, which would make the NEA the mandatory patron of all art too indecent, too disrespectful, or even too kitsch to attract private support. But even if one accepts the contention, it would have no application here. The NEA is far from the sole source of funding for art—even indecent, disrespectful, or just plain bad art. Accordingly, the Government may earmark NEA funds for projects it deems to be in the public interest without thereby abridging speech. Regan v. Taxation with Representation of Wash., supra, at 549. Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program . . . . Rust v. Sullivan, 500 U. S. 173, 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government—an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment. See id. , at 194. It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates—and is required by law to discriminate—in favor of artistic (as opposed to scientific, or political, or theological) expression. Not all the common folk, or even all great minds, for that matter, think that is a good idea. In 1800, when John Marshall told John Adams that a recent immigration of Frenchmen would include talented artists, Adams denounced all Frenchmen, but most especially `schoolmasters, painters, poets, &C.' He warned Marshall that the fine arts were like germs that infected healthy constitutions. J. Ellis, After the Revolution: Profiles of Early American Culture 36 (1979). Surely the NEA itself is nothing less than an institutionalized discrimination against that point of view. Nonetheless, it is constitutional, as is the congressional determination to favor decency and respect for beliefs and values over the opposite because such favoritism does not abridge anyone's freedom of speech. Respondents, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995), argue that viewpoint-based discrimination is impermissible unless the government is the speaker or the government is disburs[ing] public funds to private entities to convey a governmental message. Ibid. It is impossible to imagine why that should be so; one would think that directly involving the government itself in the viewpoint discrimination (if it is unconstitutional) would make the situation even worse. Respondents are mistaken. It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects—which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary. And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their (and, in a democracy, our) favored point of view by achieving it directly (having government-employed artists paint pictures, for example, or government-employed doctors perform abortions); or by advocating it officially (establishing an Office of Art Appreciation, for example, or an Office of Voluntary Population Control); or by giving money to others who achieve or advocate it (funding private art classes, for example, or Planned Parenthood). [3] None of this has anything to do with abridging anyone's speech. Rosenberger, as the Court explains, ante, at 586, found the viewpoint discrimination unconstitutional, not because funding of private speech was involved, but because the government had established a limited public forum—to which the NEA's granting of highly selective (if not highly discriminating) awards bears no resemblance. The nub of the difference between me and the Court is that I regard the distinction between abridging speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable. The Court, by contrast, seems to believe that the First Amendment, despite its words, has some ineffable effect upon funding, imposing constraints of an indeterminate nature which it announces (without troubling to enunciate any particular test) are not violated by the statute here—or, more accurately, are not violated by the quite different, emasculated statute that it imagines. [T]he Government, it says, may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake, ante, at 587-588. The Government, I think, may allocate both competitive and noncompetitive funding ad libitum, insofar as the First Amendment is concerned. Finally, what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding. Insofar as it bears upon First Amendment concerns, the vagueness doctrine addresses the problems that arise from government regulation of expressive conduct, see Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972), not government grant programs. In the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money. I cannot refrain from observing, however, that if the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of artistic excellence—and which has itself thought that standard met by everything from the playing of Beethoven to a depiction of a crucifix immersed in urine—would be of more dubious constitutional validity than the decency and respect limitations that respondents (who demand to be judged on the same strict standard of artistic excellence) have the humorlessness to call too vague.",What The Statute Says Is Constitutional
+544,1087983,2,1,"(a) Season or seasonal refers to the irrigation season, May 1 to September 30, inclusive; (b) The term storage water as applied to releases from reservoirs owned and operated by the United States is defined as any water which is released from reservoirs for use on lands under canals having storage contracts in addition to the water which is discharged through those reservoirs to meet natural flow uses permitted by this Modified Decree; (c) Natural flow water shall be taken as referring to all water in the stream except storage water; (d) Return flows from the Kendrick Project shall be deemed to be natural flow water when they have reached the North Platte River, subject to the same diversion and use as any other natural flow in the stream; (e) Hydrologically connected ground water wells are defined in procedures attached to the North Platte Decree Committee Charter as Exhibits 4, 6, and 12 approved and adopted in the Final Settlement Stipulation. The North Platte Decree Committee may modify such definition in accordance with the Final Settlement Stipulation.",For the purposes of this Modified Decree:
+545,1087983,2,3,"(a) The operation of the Glendo Project shall not impose any demand on areas at or above Seminoe Reservoir which will prejudice any rights that the States of Colorado or Wyoming might have to secure a modification of the Modified Decree permitting an expansion of water uses in the natural basin of the North Platte River in Colorado or above Seminoe Reservoir in Wyoming. (b) The operation of Glendo Reservoir shall not affect the regime of the natural flow of the North Platte River except that not more than 40,000 acre-feet of the natural flow of the North Platte River and its tributaries which cannot be stored in upstream reservoirs under the provisions of this Modified Decree may be stored in Glendo Reservoir during any water year for disposition by the United States under contracts, in addition to evaporation losses on such storage, and further, the amount of water that may be held in storage at any one time for disposition by the United States under contracts, including carryover storage, shall never exceed 100,000 acre-feet. Such storage water shall be disposed of in accordance with contracts executed or to be hereafter executed, in compliance with federal law, and may be used for any beneficial purpose in Nebraska within the Platte River basin to the extent of 25,000 acre-feet annually and for any beneficial purpose in Wyoming within the Platte River basin to the extent of 15,000 acre-feet annually. The above limitation on the amount of storage of natural flow does not apply: (1) to flood water which may be temporarily stored in any capacity allocated for flood control in Glendo Reservoir; (2) to water originally stored in Pathfinder Reservoir which may be temporarily re-stored in Glendo Reservoir after its release from Pathfinder and before its delivery pursuant to contract; (3) to Inland Lakes account water temporarily stored in accordance with this Court's Order of April 20, 1993; (4) to water which may be impounded behind Glendo Dam, as provided in the Bureau of Reclamation Definite Plan Report for the Glendo Unit, Wyoming, dated December 1952, as revised through December 1959 (Glendo Definite Plan Report) for the purpose of creating a head for the development of water power; or (5) to water in Glendo Reservoir used for the purposes described in paragraph XVII(g). (c) Each State may substitute or supplement quantities of storage water obtained under other contractual arrangements with Glendo Reservoir storage supplies. Subject to contractual arrangements with the United States Bureau of Reclamation, including any required compliance with the Endangered Species Act, 16 U. S. C. § 1531 et seq., and the National Environmental Policy Act, 42 U. S. C. § 4321 et seq., each State shall also enjoy unrestricted use of its respective storage allocation in Glendo Reservoir, so long as the use is below Glendo Reservoir and within the Platte River basin. (d) Glendo Reservoir storage water may be consumptively used in Wyoming by exchange or other means, upstream of Glendo Reservoir under the terms of this paragraph. For every two acre-feet of Glendo storage water diverted upstream of Glendo Reservoir pursuant to such an exchange, all of which may be fully consumed, an additional acre-foot of Wyoming's Glendo storage allocation shall be contracted at the same time for storage and release from Glendo Reservoir and passed through Guernsey Reservoir to the North Platte River. Except as may be modified in accordance with paragraph XVII(e), or by agreement of the parties, such additional water shall be released from the reservoir at the same time and at a rate proportionate to the diversion of the water contracted for use upstream from Glendo Reservoir during the irrigation season. During the nonirrigation season, due to operational constraints of the outlets at Guernsey Reservoir, such additional water will be held in the Glendo account and released prior to the first of May as may be operationally practical. Except as provided in paragraph XVII(e), once released, such additional water shall be considered natural flow water for purposes of the 75/25 apportionment specified in paragraph V. (e) If the valid exercise or enforcement of federal law or authority requires Wyoming or a water user within Wyoming to cause the release of a portion of Wyoming's Glendo allocation for environmental purposes downstream of Glendo Reservoir, the additional water contracted and released under paragraph XVII(d) may be dedicated to and used for that purpose. Any water released pursuant to such requirement shall not be considered natural flow but shall be administered and protected as storage water in accordance with state law within both Wyoming and Nebraska until used for its intended purposes. (f) Storage water in Glendo Reservoir from either State's allocation may be used for fish and wildlife purposes downstream of Glendo Reservoir under contractual arrangements with the United States Bureau of Reclamation, subject to approval of Wyoming for contracts for water from Wyoming's storage allocation and subject to approval of Nebraska for contracts for water from Nebraska's storage allocation. Any water released pursuant to such agreement shall not be considered natural flow but shall be administered and protected as storage water in accordance with state law within both Wyoming and Nebraska until used for its intended purposes. (g) The United States Bureau of Reclamation has the discretion to hold water in Glendo Reservoir in excess of the limitations stated in paragraph XVII(b) in accordance with the operation of the reregulation space in Glendo Reservoir under Permit No. 5998 Res. and Certificate of Construction of Reservoir, as clarified by Order of the Wyoming State Board of Control dated November 29, 2000. Such water may be used, subject to federal law, for the following purposes:
+(1) line state in excess of the amount ordered by canals with storage contracts below the Wyoming-Nebraska state line as the unintended result of physical limitations on the ability to control water deliveries;
+(2) of Pathfinder counts Reservoir, Guernsey Reservoir, Seminoe Reservoir, Alcova Reservoir, and Glendo Reservoir; and (3) to supplement the natural flow that is available for apportionment pursuant to paragraph V. XVIII. The creation of the North Platte Decree Committee is hereby approved and ratified. Procedures that have been approved and adopted in the Final Settlement Stipulation may be modified from time to time by the North Platte Decree Committee if the modifications are consistent with the Modified Decree. In the event of a conflict between any procedure, the Final Settlement Stipulation and the Modified Decree, the provisions of this Modified Decree shall control.",The following provisions are effective for the operation of Glendo Dam and Reservoir:
+546,1087983,3,2,"(2) of Pathfinder counts Reservoir, Guernsey Reservoir, Seminoe Reservoir, Alcova Reservoir, and Glendo Reservoir; and (3) to supplement the natural flow that is available for apportionment pursuant to paragraph V. XVIII. The creation of the North Platte Decree Committee is hereby approved and ratified. Procedures that have been approved and adopted in the Final Settlement Stipulation may be modified from time to time by the North Platte Decree Committee if the modifications are consistent with the Modified Decree. In the event of a conflict between any procedure, the Final Settlement Stipulation and the Modified Decree, the provisions of this Modified Decree shall control.",to replace evaporation from the storage ownership ac-
+547,145740,1,1,"Under Texas law the jury verdict form provides special-issue questions to guide the jury in determining whether the death penalty should be imposed. At the time of Smith's trial, Texas law set forth three special issues. The first addressed deliberateness; the second concerned future dangerousness; and the third asked whether the killing was an unreasonable response to provocation by the victim. Provocation was not applicable to Smith's case so the third question was not included in the instructions. If the jury answered the two applicable special-issue questions in the affirmative, the death penalty would be imposed. In Penry I, the Court held that neither of these special-issue instructions was broad enough to provide a vehicle for the jury to give mitigating effect to the evidence at issue in that case. Penry II, supra, at 798, 121 S.Ct. 1910 (citing, and characterizing, Penry I, supra, at 322-325, 109 S.Ct. 2934). We refer to the inadequacy of the special issue instructions as  Penry error. For the brief period between Penry I and the Texas Legislature's addition of a catchall special issue, Texas courts attempted to cure Penry error with a nullification charge. In Smith's case the trial court instructed that if a juror was convinced the correct answer to each special-issue question was yes, but nevertheless concluded the defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue question no. The charge was not incorporated into the verdict form. See, e.g., 1 App. 123-124. In essence the jury was instructed to misrepresent its answer to one of the two special issues when necessary to take account of the mitigating evidence. In Penry II, the Court concluded that a nullification charge created an ethical and logical dilemma that prevented jurors from giving effect to the mitigating evidence when the evidence was outside the scope of the special issues. As the Court explained, because the supplemental [nullification] instruction had no practical effect, the jury instructions ... were not meaningfully different from the ones we found constitutionally inadequate in Penry I.  532 U.S., at 798, 121 S.Ct. 1910. In other words, Penry II held that the nullification charge did not cure the Penry error. Penry II and Smith I recognized the ethical dilemma, the confusion, and the capriciousness introduced into jury deliberations by directing the jury to distort the meaning of an instruction and a verdict form. Penry II, supra, at 797-802, 121 S.Ct. 1910; Smith I, supra, at 45-48, 125 S.Ct. 400. These are problems distinct from Penry error and may be grounds for reversal as an independent matter; but we need not reach that issue here, just as the Court did not need to reach it in Penry II or Smith I. When this Court reversed the Court of Criminal Appeals in Smith I, it did so because the nullification charge had not cured the underlying Penry error. See Smith I, 543 U.S., at 48, 125 S.Ct. 400 (holding that the burden of proof ... was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with the mitigating evidence). While the ethical and logical quandary caused by the jury nullification charge may give rise to distinct error, this was not the basis for reversal in Smith I. On remand the Court of Criminal Appeals misunderstood this point. Its interpretation of federal law was incorrect. In light of our decision in Smith I, our review of the facts need not restate the brutality of the murder Smith committed or the evidence he offered in mitigation. See id., at 38-43, 125 S.Ct. 400. We need only address the conclusion of the Court of Criminal Appeals that the constitutional error asserted by Smith was caused by the nullification charge and that, having failed to alert the trial court to that error, Smith was required to demonstrate egregious harm to obtain relief. B. The Trial Before voir dire, Smith filed three written motions addressing the jury instructions. In the first, he argued that Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Penry I established the constitutional inadequacy of the special issues. The motion maintained that Texas law denied the trial court power to cure the problem because [t]he exclusive methodology for submission to the jury of special issues with regard to infliction of the death penalty [is] contained in Article 37.071 of the Texas Code of Criminal Procedure Annotated (Vernon 2006 Supp. Pamphlet), which did not authorize the trial court to add an additional special issue on mitigation. 1 App. 9. The trial court, the objection stated, would not be able to provide any instruction with regard to mitigating evidence which would permit the jury to make a moral reasoned response to mitigating evidence not covered by the special issues. Ibid. Smith would offer such evidence. The second pretrial motion raised a related but distinct argument. Smith began by noting that in Jurek the Supreme Court had found Article 37.071 constitutional on its face. He argued, however, it did so with the understanding that the Texas courts would give broad construction to terms in the special issues such as `deliberately.' 1 App. 12. They had not done so and therefore [t]here [was] no provision in Texas for the jury to decide the appropriateness of the death penalty taking into consideration the personal moral culpability of the [d]efendant balanced by mitigating evidence which is not directly or circumstantially probative in answering the special issues. Id., at 13. Smith therefore reasoned that Article 37.071 was unconstitutional. The third pretrial motion asked the court to state the contents of the mitigation charge prior to voir dire so Smith could exercise his jury challenges intelligently. Id., at 17-19. The trial court denied the first two motions. Id., at 21. In response to the third it provided Smith a copy of its proposed mitigation charge. That charge, which we will refer to as the nullification charge, defined mitigating evidence broadly before explaining to the jury, in relevant part: [I]f you believe that the State has proved beyond a reasonable doubt that the answers to the Special Issues are `Yes,' and you also believe from the mitigating evidence, if any, that the Defendant should not be sentenced to death, then you shall answer at least one of the Special Issues `No' in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence presented to you. In this regard, you are further instructed that the State of Texas must prove beyond a reasonable doubt that the death sentence should be imposed despite the mitigating evidence, if any, admitted before you. Smith I, supra, at 40, 125 S.Ct. 400 (internal quotation marks and citation omitted). The nullification charge did not define or describe the special issues. 1 App. 105-110. The judge told counsel: If you see something in that charge that you'd like worded differently or you think could be made clearer or better, I'm always willing to entertain different wording or different ways of putting the idea. So if you come up with something you like better, just let me know and I'll look at it. Id., at 21. Smith raised no additional objection and did not suggest alternative wording for the nullification charge. The jury received the nullification charge from the judge, but the verdict form did not incorporate it. The form was confined to the special issues of deliberateness and future dangerousness. Id., at 123-124. The jury unanimously answered yes to both special-issue questions, and Smith was sentenced to death. C. Post-Trial Proceedings The State does not contest the validity of Smith's challenge to the special issues in his pretrial motion. It does contend that since Smith did not object to the nullification charge, his state habeas petition rests on an unpreserved claim, namely that the nullification charge excluded his mitigating evidence. The State's formulation of the federal right claimed by Smith, a formulation accepted by the Court of Criminal Appeals, is based on an incorrect reading of federal law and this Court's precedents. Considering Smith's first two pretrial motions together, as the trial court did, it is evident Smith's objection was that the special-issue framework violated the Eighth Amendment because it prevented the court from formulating jury instructions that would ensure adequate consideration of his mitigating evidence. This framework failed because the special issues were too narrow, the trial court was unable to promulgate a new catchall special issue, and the Texas courts did not define deliberately in broad terms. The State is correct that this was an objection based on Penry error, not one based on the confusion caused by the nullification instruction. A review of Smith's post-trial proceedings shows that the central argument of his habeas petition, and the basis for this Court's decision in Smith I, is the same constitutional error asserted at trial.
+On direct appeal from the trial court, Smith renewed his argument that the special issues were unconstitutional: [I]n [Penry I], the Supreme Court held that there was an Eighth Ame[n]dment violation where there was mitigating evidence not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, and the jury instructions would have provided the jury with no vehicle for expressing its reasoned moral response to that evidence. ..... By its extremely narrow interpretation of the requirements of Penry, this Court has unconstitutionally narrowed the sentencer's discretion to consider relevant mitigating evidence .... The special issues ... do not in reality provide a vehicle for individualized consideration of the appropriateness of assessment of the death penalty and [the article establishing them] is unconstitutional as applied. 1 App. 133-134. Both the Court of Criminal Appeals, in its most recent opinion, and the State, in its brief on direct appeal, recognized Smith's pretrial motions preserved this argument. 185 S.W.3d, at 462, and n. 9 (holding Smith's direct-appeal argument that the jury was unable to give effect to his mitigating evidence in answering the special issues was based upon his pretrial motion); Brief for Texas in No. 71,333 (Tex. Crim.App.), p. 62, Record 674 ([Smith] reiterates his [pretrial] claim that the statute is unconstitutional as applied since it fails to provide an effective vehicle for the jury to apply mitigating evidence). In its opinion affirming the sentence on direct review the Court of Criminal Appeals held that the instruction complied with Penry and provided a sufficient vehicle for the jury to consider any mitigating evidence [Smith] offered. Smith v. State, No. 71,333 (Tex.Crim.App., June 22, 1994), p. 11, 1 App. 147.
+In 1998, Smith sought state habeas relief. Under state law the petition was untimely. The Court of Criminal Appeals, over a dissent, rejected an argument that neglect by Smith's counsel merited equitable tolling. Ex parte Smith, 977 S.W.2d 610 (Tex.Crim.App.1998) (en banc); see id., at 614 (Overstreet, J., dissenting). Texas then amended its filing rules to allow the exception the Court of Criminal Appeals had declined to create. The statutory change permitted Smith to file for habeas relief. Smith filed his second habeas petition before this Court's decision in Penry II. He argued once more that the special issues were inadequate: In Penry [I], the Supreme Court ... held that the former Texas capital sentencing statute did not provide an adequate vehicle for expressing its reasoned moral response to [mitigating] evidence in rendering its sentencing decision. Application for Writ of Habeas Corpus Pursuant to Section 4A of Article 11.071 of the Texas Code of Criminal Procedure in No. W91-22803-R(A) (Tex.Crim. App.), p. 191, Record 193 (internal quotation marks omitted). Smith acknowledged the trial court tried to solve the problem with the nullification charge, but he explained that [i]t confounds common sense to suggest jurors — who are sworn to tell the truth — would ever understand that they were authorized to answer [special-issue] questions falsely. Id., at 193, Record 195. Smith continued: Nothing in the special issues themselves linked the `nullification' instruction to the specific questions asked; nothing in the special issues themselves authorized the jury to consider mitigating evidence when answering the questions; nothing in the special issues themselves authorized the jury to answer the questions `no' when the truthful answer was `yes'; in short, nothing in the special issues permitted the jury to apply the `nullification' instruction. Id., at 194, Record 196. Smith conceded he had not objected to the nullification charge but confirmed that he had challenged the special-issues statute and that the Court of Criminal Appeals had reached the merits of this claim on direct review. The State, relying upon a procedural bar different from and indeed contradictory to the one it now raises, responded that [t]his claim [was] procedurally barred as it was both raised and decided on the merits on direct appeal. 1 App. 156; see also id., at 157 (describing Smith's position as an identical complaint and an identical argument to his claim on direct appeal). The State contended, in the alternative, that Smith's position was meritless because the nullification charge cured any problem with the special issues. Respondent's Original Answer and Response to Applicant's Application for Writ of Habeas Corpus in No. W91-22803-R(A) (Tex. Crim.App.), pp. 136-139, Record 467-470. The state trial court denied habeas relief on the ground Smith was procedurally barred from raising the same claim denied on direct review absent a subsequent change in the law so as to render the judgment void .... Ex parte Smith, No. W91-22803-R, 86-87 (265th Dist. Ct. of Dallas Cty., Texas, Apr. 5, 2001).
+While Smith's appeal from the state trial court's denial of his second habeas petition was pending, this Court decided Penry II. Smith filed a brief in the Court of Criminal Appeals explaining the relevance of Penry II to his habeas claim. He noted that the special-issue questions in his case were for all relevant purposes the same as those in Penry II. Applicant's Brief for Submission in View of the United States Supreme Court's Opinion in Penry v. Johnson in No. W91-22803-R (Tex.Crim.App.), pp. 4-5. He maintained the nullification charges were also indistinguishable, id., at 5-6, and had in Penry II been held insufficient to cure the error created by the Special Issues. Applicant's Brief for Submission, at 6-7. Smith concluded by explaining that the procedural bar for raising an issue already resolved on direct review did not apply where an intervening legal decision renders a previously rejected claim meritorious. Id., at 12 (citing Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) (en banc)). (We note the Court of Criminal Appeals recently adopted this position. See Ex parte Hood, 211 S.W.3d 767, 775-778 (Tex.Crim.App.2007).) The Court of Criminal Appeals ordered supplemental briefing on the relevance of Penry II. Given that Penry II addressed the sufficiency of a nullification charge as a cure for inadequate special issues, Smith's supplemental brief concentrated on the same issue. Nevertheless, his central argument remained that he presented significant mitigating evidence that was virtually indistinguishable from Penry's and thus undeniably beyond the scope of the special issues. Applicant's Supplemental Briefing on Submission in No. 74,228 (Tex. Crim.App.), p. 12 (hereinafter Applicant's Supp. Briefing). The nullification charge was inadequate as well, in his view, because, based on the ethical dilemma, there is a reasonable probability that the nullification instruction ... precluded [a juror who found that Smith's personal culpability did not warrant a death sentence] from expressing that conclusion. Id., at 13. Alternatively, Smith argued he was also entitled to relief under Penry II  because [e]ven if the jury might have been able to give effect to some of [his] mitigating evidence within the scope of [the] special issues, the confusing nullification instruction itself may have prevented the jury from doing so. Id., at 14. As such, the nullification charge was worse than no instruction at all. Id., at 15-16 (emphasis deleted). The State responded that the special issues were adequate and, furthermore, that the nullification charge, unlike the charge in Penry II, cured any problem. State's Brief in No. 74,228 (Tex.Crim. App.), pp. 2-11. In response to Smith's second argument the State contended it tests the bounds of reason to grant [Smith] relief based on a good-faith attempt to give him a supplemental instruction to which he was not constitutionally entitled. Id., at 11. In reply Smith reiterated his two distinct arguments, devoting most of the brief to his original trial objection. Applicant's Reply to Respondent's Response to Applicant's Brief for Submission in No. 74,228 (Tex.Crim.App.). The Court of Criminal Appeals denied the habeas petition. It found no Penry error, reasoning that the special issues were adequate to consider the mitigating evidence. Ex parte Smith, 132 S.W.3d, at 412-415. Any evidence excluded from the purview of the jury, the court indicated, was not constitutionally significant. Id., at 413, n. 21. In the alternative the court held the nullification charge and the argument at trial were distinguishable from those at issue in Penry II. In Smith's case, the court reasoned, the nullification charge would have been an adequate cure even if the special issues were too narrow. 132 S.W.3d, at 416-417. The majority did not adopt or address the reasoning of the two concurring opinions, which argued that Smith had procedurally defaulted his  Penry II claim because while he had objected to the special issues at trial, he had not objected separately to the nullification charge. Id., at 423-424 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring).
+The ruling of the Court of Criminal Appeals in Smith's second state habeas proceeding was reversed by this Court in Smith I. The Court's summary disposition first rejected as unconstitutional the Texas court's screening test for constitutionally significant evidence. 543 U.S., at 43-48, 125 S.Ct. 400; see also Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The Smith I Court next observed that although Smith had presented relevant mitigating evidence, the jury's consideration was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with that evidence. 543 U.S., at 45, 48, 125 S.Ct. 400. There was, in other words, a Penry error. As a final matter, despite differences between the nullification charges in Smith I and Penry II, the variances were constitutionally insignificant because  Penry [II] identified a broad and intractable problem. 543 U.S., at 46, 47, 125 S.Ct. 400 (citing Penry II, 532 U.S., at 799-800, 121 S.Ct. 1910). The nullification charge was therefore inadequate under Penry II. The judgment was reversed and the case remanded. 543 U.S., at 48-49, 125 S.Ct. 400.
+On remand Smith's brief urged that harmless-error review was inappropriate because under the nullification charge the jury proceedings became capricious. See Applicant's Brief on Remand in No. 74,228 (Tex.Crim.App.), pp. 8-18. The State responded that Smith was procedurally barred because he waited to raise his allegation of jury charge error under Penry II until the second state habeas petition nine years after his conviction. State's Brief on Remand in No. 74,228 (Tex.Crim. App.), pp. 1, 2 (hereinafter State's Brief on Remand). The State maintained this was an adequate and independent state ground for denying relief. Ibid. Smith's motion and direct appeal, the State said, had been based on a challenge to the statute setting forth the special issues, not to the jury charge. Id., at 5-6. The State also maintained that this Court had not addressed whether the special issues were a sufficient vehicle for the jury to give effect to [Smith's] mitigation evidence. Id., at 12-16. Smith replied to the procedural-bar argument by noting he had consistently raised his claim regarding the inadequacy of the special issues to permit constitutionally adequate consideration of his mitigating evidence and this Court has consistently addressed the merits of [that] claim. Applicant's Reply Brief on Remand in No. 74,228 (Tex.Crim.App.), p. 1. The Court of Criminal Appeals denied relief. The court's confusion with the interplay between Penry I and Penry II is evident from the beginning. Reasoning that [t]he Supreme Court did not address our conclusion that the two special issues provided [Smith's] jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence, 185 S.W.3d, at 463 (internal quotation marks omitted), the court again concluded that the special issues were adequate, id., at 464-467. Nevertheless, because of its uncertainty regarding this Court's Penry II jurisprudence, the Court of Criminal Appeals went on to assume, for the sake of argument, that at least some of [Smith's] evidence was not fully encompassed by the two special issues and that the jury charge in this case was constitutionally deficient under Penry II.  185 S.W.3d, at 467. The Court then applied the framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1984) (en banc), to Smith's claim of error. Under Almanza, Smith needed first to show instructional error. Having assumed Smith had done so, the court next asked whether the error was preserved for review. If so, Smith would need to establish some actual, not merely theoretical, harm resulting from the error. If Smith had not preserved the error, by contrast, he would need to establish not merely some harm but also that the harm was egregious. 185 S.W.3d, at 467. The court found Smith had not preserved his claim of instructional error. Smith's only objection at trial, reasoned the state court, was that the statute authorizing the special issues was unconstitutional in light of Penry I. 185 S.W.3d, at 461-462, and n. 8. This objection did not preserve a challenge to the nullification charge based on Penry II, so Smith was required to show egregious harm. That showing had not been addressed by this Court's holding in Smith I, the Court of Criminal Appeals indicated, because this Court only required that Smith demonstrate a reasonable probability of harm. In the view of the Court of Criminal Appeals there was little likelihood that Smith's jury had failed to consider the mitigating evidence. 185 S.W.3d, at 468-473. On this basis the court concluded Smith had failed to show egregious harm and, as such, habeas relief was foreclosed. We granted certiorari. 549 U.S. ___, 127 S.Ct. 377, 166 L.Ed.2d 265 (2006).",A.The Special Issues
+548,145740,2,1,"On direct appeal from the trial court, Smith renewed his argument that the special issues were unconstitutional: [I]n [Penry I], the Supreme Court held that there was an Eighth Ame[n]dment violation where there was mitigating evidence not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, and the jury instructions would have provided the jury with no vehicle for expressing its reasoned moral response to that evidence. ..... By its extremely narrow interpretation of the requirements of Penry, this Court has unconstitutionally narrowed the sentencer's discretion to consider relevant mitigating evidence .... The special issues ... do not in reality provide a vehicle for individualized consideration of the appropriateness of assessment of the death penalty and [the article establishing them] is unconstitutional as applied. 1 App. 133-134. Both the Court of Criminal Appeals, in its most recent opinion, and the State, in its brief on direct appeal, recognized Smith's pretrial motions preserved this argument. 185 S.W.3d, at 462, and n. 9 (holding Smith's direct-appeal argument that the jury was unable to give effect to his mitigating evidence in answering the special issues was based upon his pretrial motion); Brief for Texas in No. 71,333 (Tex. Crim.App.), p. 62, Record 674 ([Smith] reiterates his [pretrial] claim that the statute is unconstitutional as applied since it fails to provide an effective vehicle for the jury to apply mitigating evidence). In its opinion affirming the sentence on direct review the Court of Criminal Appeals held that the instruction complied with Penry and provided a sufficient vehicle for the jury to consider any mitigating evidence [Smith] offered. Smith v. State, No. 71,333 (Tex.Crim.App., June 22, 1994), p. 11, 1 App. 147.",Direct Appeal
+549,145740,2,2,"In 1998, Smith sought state habeas relief. Under state law the petition was untimely. The Court of Criminal Appeals, over a dissent, rejected an argument that neglect by Smith's counsel merited equitable tolling. Ex parte Smith, 977 S.W.2d 610 (Tex.Crim.App.1998) (en banc); see id., at 614 (Overstreet, J., dissenting). Texas then amended its filing rules to allow the exception the Court of Criminal Appeals had declined to create. The statutory change permitted Smith to file for habeas relief. Smith filed his second habeas petition before this Court's decision in Penry II. He argued once more that the special issues were inadequate: In Penry [I], the Supreme Court ... held that the former Texas capital sentencing statute did not provide an adequate vehicle for expressing its reasoned moral response to [mitigating] evidence in rendering its sentencing decision. Application for Writ of Habeas Corpus Pursuant to Section 4A of Article 11.071 of the Texas Code of Criminal Procedure in No. W91-22803-R(A) (Tex.Crim. App.), p. 191, Record 193 (internal quotation marks omitted). Smith acknowledged the trial court tried to solve the problem with the nullification charge, but he explained that [i]t confounds common sense to suggest jurors — who are sworn to tell the truth — would ever understand that they were authorized to answer [special-issue] questions falsely. Id., at 193, Record 195. Smith continued: Nothing in the special issues themselves linked the `nullification' instruction to the specific questions asked; nothing in the special issues themselves authorized the jury to consider mitigating evidence when answering the questions; nothing in the special issues themselves authorized the jury to answer the questions `no' when the truthful answer was `yes'; in short, nothing in the special issues permitted the jury to apply the `nullification' instruction. Id., at 194, Record 196. Smith conceded he had not objected to the nullification charge but confirmed that he had challenged the special-issues statute and that the Court of Criminal Appeals had reached the merits of this claim on direct review. The State, relying upon a procedural bar different from and indeed contradictory to the one it now raises, responded that [t]his claim [was] procedurally barred as it was both raised and decided on the merits on direct appeal. 1 App. 156; see also id., at 157 (describing Smith's position as an identical complaint and an identical argument to his claim on direct appeal). The State contended, in the alternative, that Smith's position was meritless because the nullification charge cured any problem with the special issues. Respondent's Original Answer and Response to Applicant's Application for Writ of Habeas Corpus in No. W91-22803-R(A) (Tex. Crim.App.), pp. 136-139, Record 467-470. The state trial court denied habeas relief on the ground Smith was procedurally barred from raising the same claim denied on direct review absent a subsequent change in the law so as to render the judgment void .... Ex parte Smith, No. W91-22803-R, 86-87 (265th Dist. Ct. of Dallas Cty., Texas, Apr. 5, 2001).",First and Second State Habeas
+550,145740,2,3,"While Smith's appeal from the state trial court's denial of his second habeas petition was pending, this Court decided Penry II. Smith filed a brief in the Court of Criminal Appeals explaining the relevance of Penry II to his habeas claim. He noted that the special-issue questions in his case were for all relevant purposes the same as those in Penry II. Applicant's Brief for Submission in View of the United States Supreme Court's Opinion in Penry v. Johnson in No. W91-22803-R (Tex.Crim.App.), pp. 4-5. He maintained the nullification charges were also indistinguishable, id., at 5-6, and had in Penry II been held insufficient to cure the error created by the Special Issues. Applicant's Brief for Submission, at 6-7. Smith concluded by explaining that the procedural bar for raising an issue already resolved on direct review did not apply where an intervening legal decision renders a previously rejected claim meritorious. Id., at 12 (citing Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) (en banc)). (We note the Court of Criminal Appeals recently adopted this position. See Ex parte Hood, 211 S.W.3d 767, 775-778 (Tex.Crim.App.2007).) The Court of Criminal Appeals ordered supplemental briefing on the relevance of Penry II. Given that Penry II addressed the sufficiency of a nullification charge as a cure for inadequate special issues, Smith's supplemental brief concentrated on the same issue. Nevertheless, his central argument remained that he presented significant mitigating evidence that was virtually indistinguishable from Penry's and thus undeniably beyond the scope of the special issues. Applicant's Supplemental Briefing on Submission in No. 74,228 (Tex. Crim.App.), p. 12 (hereinafter Applicant's Supp. Briefing). The nullification charge was inadequate as well, in his view, because, based on the ethical dilemma, there is a reasonable probability that the nullification instruction ... precluded [a juror who found that Smith's personal culpability did not warrant a death sentence] from expressing that conclusion. Id., at 13. Alternatively, Smith argued he was also entitled to relief under Penry II  because [e]ven if the jury might have been able to give effect to some of [his] mitigating evidence within the scope of [the] special issues, the confusing nullification instruction itself may have prevented the jury from doing so. Id., at 14. As such, the nullification charge was worse than no instruction at all. Id., at 15-16 (emphasis deleted). The State responded that the special issues were adequate and, furthermore, that the nullification charge, unlike the charge in Penry II, cured any problem. State's Brief in No. 74,228 (Tex.Crim. App.), pp. 2-11. In response to Smith's second argument the State contended it tests the bounds of reason to grant [Smith] relief based on a good-faith attempt to give him a supplemental instruction to which he was not constitutionally entitled. Id., at 11. In reply Smith reiterated his two distinct arguments, devoting most of the brief to his original trial objection. Applicant's Reply to Respondent's Response to Applicant's Brief for Submission in No. 74,228 (Tex.Crim.App.). The Court of Criminal Appeals denied the habeas petition. It found no Penry error, reasoning that the special issues were adequate to consider the mitigating evidence. Ex parte Smith, 132 S.W.3d, at 412-415. Any evidence excluded from the purview of the jury, the court indicated, was not constitutionally significant. Id., at 413, n. 21. In the alternative the court held the nullification charge and the argument at trial were distinguishable from those at issue in Penry II. In Smith's case, the court reasoned, the nullification charge would have been an adequate cure even if the special issues were too narrow. 132 S.W.3d, at 416-417. The majority did not adopt or address the reasoning of the two concurring opinions, which argued that Smith had procedurally defaulted his  Penry II claim because while he had objected to the special issues at trial, he had not objected separately to the nullification charge. Id., at 423-424 (Hervey, J., concurring); id., at 428 (Holcomb, J., concurring).",Appeal from the Denial of State Habeas Relief
+551,145740,2,4,"The ruling of the Court of Criminal Appeals in Smith's second state habeas proceeding was reversed by this Court in Smith I. The Court's summary disposition first rejected as unconstitutional the Texas court's screening test for constitutionally significant evidence. 543 U.S., at 43-48, 125 S.Ct. 400; see also Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The Smith I Court next observed that although Smith had presented relevant mitigating evidence, the jury's consideration was tied by law to findings of deliberateness and future dangerousness that had little, if anything, to do with that evidence. 543 U.S., at 45, 48, 125 S.Ct. 400. There was, in other words, a Penry error. As a final matter, despite differences between the nullification charges in Smith I and Penry II, the variances were constitutionally insignificant because  Penry [II] identified a broad and intractable problem. 543 U.S., at 46, 47, 125 S.Ct. 400 (citing Penry II, 532 U.S., at 799-800, 121 S.Ct. 1910). The nullification charge was therefore inadequate under Penry II. The judgment was reversed and the case remanded. 543 U.S., at 48-49, 125 S.Ct. 400.",Smith I
+552,145740,2,5,"On remand Smith's brief urged that harmless-error review was inappropriate because under the nullification charge the jury proceedings became capricious. See Applicant's Brief on Remand in No. 74,228 (Tex.Crim.App.), pp. 8-18. The State responded that Smith was procedurally barred because he waited to raise his allegation of jury charge error under Penry II until the second state habeas petition nine years after his conviction. State's Brief on Remand in No. 74,228 (Tex.Crim. App.), pp. 1, 2 (hereinafter State's Brief on Remand). The State maintained this was an adequate and independent state ground for denying relief. Ibid. Smith's motion and direct appeal, the State said, had been based on a challenge to the statute setting forth the special issues, not to the jury charge. Id., at 5-6. The State also maintained that this Court had not addressed whether the special issues were a sufficient vehicle for the jury to give effect to [Smith's] mitigation evidence. Id., at 12-16. Smith replied to the procedural-bar argument by noting he had consistently raised his claim regarding the inadequacy of the special issues to permit constitutionally adequate consideration of his mitigating evidence and this Court has consistently addressed the merits of [that] claim. Applicant's Reply Brief on Remand in No. 74,228 (Tex.Crim.App.), p. 1. The Court of Criminal Appeals denied relief. The court's confusion with the interplay between Penry I and Penry II is evident from the beginning. Reasoning that [t]he Supreme Court did not address our conclusion that the two special issues provided [Smith's] jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence, 185 S.W.3d, at 463 (internal quotation marks omitted), the court again concluded that the special issues were adequate, id., at 464-467. Nevertheless, because of its uncertainty regarding this Court's Penry II jurisprudence, the Court of Criminal Appeals went on to assume, for the sake of argument, that at least some of [Smith's] evidence was not fully encompassed by the two special issues and that the jury charge in this case was constitutionally deficient under Penry II.  185 S.W.3d, at 467. The Court then applied the framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1984) (en banc), to Smith's claim of error. Under Almanza, Smith needed first to show instructional error. Having assumed Smith had done so, the court next asked whether the error was preserved for review. If so, Smith would need to establish some actual, not merely theoretical, harm resulting from the error. If Smith had not preserved the error, by contrast, he would need to establish not merely some harm but also that the harm was egregious. 185 S.W.3d, at 467. The court found Smith had not preserved his claim of instructional error. Smith's only objection at trial, reasoned the state court, was that the statute authorizing the special issues was unconstitutional in light of Penry I. 185 S.W.3d, at 461-462, and n. 8. This objection did not preserve a challenge to the nullification charge based on Penry II, so Smith was required to show egregious harm. That showing had not been addressed by this Court's holding in Smith I, the Court of Criminal Appeals indicated, because this Court only required that Smith demonstrate a reasonable probability of harm. In the view of the Court of Criminal Appeals there was little likelihood that Smith's jury had failed to consider the mitigating evidence. 185 S.W.3d, at 468-473. On this basis the court concluded Smith had failed to show egregious harm and, as such, habeas relief was foreclosed. We granted certiorari. 549 U.S. ___, 127 S.Ct. 377, 166 L.Ed.2d 265 (2006).",Remand Following Smith I
+553,145827,2,1,"No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. . . . . . . . . Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. 29 U.S.C. § 626(d). The Act does not define charge. While EEOC regulations give some content to the term, they fall short of a comprehensive definition. The agency has statutory authority to issue regulations, see § 628; and when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The regulations the agency has adopted—so far as they go—are reasonable constructions of the term charge. There is little dispute about this. The issue is the guidance the regulations give. One of the regulations, 29 CFR § 1626.3 (2007), is entitled Other definitions. It says:  charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act. Section 1626.8(a) identifies five pieces of information a charge should contain: (1)-(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. The next subsection, § 1626.8(b), however, seems to qualify these requirements by stating that a charge is sufficient if it meets the requirements of § 1626.6— i.e., if it is in writing and . . . name[s] the prospective respondent and . . . generally allege[s] the discriminatory act(s). Even with the aid of the regulations the meaning of charge remains unclear, as is evident from the differing positions of the parties now before us and in the Courts of Appeals. Petitioner contends an Intake Questionnaire cannot be a charge unless the EEOC acts upon it. On the other hand some Courts of Appeals, including the Court of Appeals for the Second Circuit, take a position similar to the Government's in this case, that an Intake Questionnaire can constitute a charge if it expresses the filer's intent to activate the EEOC's enforcement processes. See, e.g., Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (C.A.7 1988). A third view, which seems to accord with respondent's position, is that all completed Intake Questionnaires are charges. See, e.g., Casavantes v. California State Univ., Sacramento, 732 F.2d 1441, 1443 (C.A.9 1984).",The relevant statutory provision states:
+554,112565,2,1,"It shall be an unlawful employment practice for an employer. . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U. S. C. § 2000e-2(a)(1). Under the statute, [t]he term `employer' means a person engaged in an industry affecting commerce who has fifteen or more employees, § 2000e(b); [t]he term `commerce' means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof. . . . § 2000e(g). These terms are broad enough to encompass discrimination by United States employers abroad. Nothing in the text of the statute indicates that the protection of an individual from employment discrimination depends on the location of that individual's workplace; nor does anything in the statute indicate that employers whose businesses affect commerce between a State and any other place outside thereof are exempted when their discriminatory conduct occurs beyond the Nation's borders. While conceding that it is plausible to infer from the breadth of the statute's central prohibition that Congress intended Title VII to apply extraterritorially, ante, at 250, the majority goes to considerable lengths to show that this language is not sufficient to overcome the majority's clear-statement conception of the presumption against extraterritoriality. However, petitioners claim no more—and need claim no more, given additional textual evidence of Congress' intent — than that this language is consistent with a legislative expectation that Title VII apply extraterritorially, a proposition that the majority does not dispute. Confirmation that Congress did in fact expect Title VII's central prohibition to have an extraterritorial reach is supplied by the so-called alien exemption provision. The alien-exemption provision states that Title VII shall not apply to an employer with respect to the employment of aliens outside any State.  42 U. S. C. § 2000e-1 (emphasis added). [3] Absent an intention that Title VII apply outside any State, Congress would have had no reason to craft this extraterritorial exemption. And because only discrimination against aliens is exempted, employers remain accountable for discrimination against United States citizens abroad. The inference arising from the alien-exemption provision is more than sufficient to rebut the presumption against extraterritoriality. Compare Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989). In Union Gas, we considered the question whether Congress had stated with sufficient clarity its intention to abrogate the States' Eleventh Amendment immunity under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Based on a limited exemption provision directed at the States, we concluded that Congress had spoken with sufficient clarity; absent a background understanding that the general terms of the statute had made the States amenable to suit, we explained, the limited exemption would [have] be[en] unnecessary. Id., at 8. If this logic is sufficiently sharp to pierce the dense armor afforded the States by the clear-statement abrogation rule of Atascadero State Hospital v. Scanlon, 473 U. S., at 242-243; accord, Dellmuth v. Muth, 491 U. S., at 230, then the same logic necessarily overcomes the much weaker presumption against extraterritoriality recognized in Foley Brothers. The history of the alien-exemption provision confirms the inference that Congress expected Title VII to have extraterritorial application. As I have explained, the Court in Foley Brothers declined to construe the Eight Hour Law to apply extraterritorially in large part because of [t]he absence of any distinction between citizen and alien labor under the Law: Unless we were to read such a distinction into the statute we should be forced to conclude . . . that Congress intended to regulate the working hours of a citizen of Iran who chanced to be employed on a public work of the United States in that foreign land. . . . An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose. 336 U. S., at 286. The language comprising the alien-exemption provision first appeared in an employment-discrimination bill introduced only seven weeks after the Court decided Foley Brothers, see H. R. 4453, 81st Cong., 1st Sess. (1949), and was clearly aimed at insulating that legislation from the concern that prevented the Court from adopting an extraterritorial construction of the Eight Hour Law. The legislative history surrounding Title VII leaves no doubt that Congress had extraterritorial application in mind when it revived the alien-exemption provision from the earlier antidiscrimination bill: In section 4 of the Act, a limited exception is provided for employers with respect to employment of aliens outside of any State . . . . The intent of [this] exemption is to remove conflicts of law which might otherwise exist between the United States and a foreign nation in the employment of aliens outside the United States by an American enterprise.  H. R. Rep. No. 570, 88th Cong., 1st Sess. 4 (1963) (emphasis added), reprinted in Civil Rights, Hearings on H. R. 7152, as amended, before Subcommittee No. 5 of the Committee on the Judiciary, 88th Cong., 1st Sess., 2303 (Civil Rights Hearings). [4] See also S. Rep. No. 867, 88th Cong., 2d Sess., 11 (1964) (Exempted from the bill are . . . U. S. employers employing citizens of foreign countries in foreign lands  (emphasis added)). Notwithstanding the basic rule of construction requiring courts to give effect to all of the statutory language, see Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979), the majority never advances an alternative explanation of the alien-exemption provision that is consistent with the majority's own conclusion that Congress intended Title VII to have a purely domestic focus. The closest that the majority comes to attempting to give meaning to the alien-exemption provision is to identify without endorsement two alternative raisons d'être for that language offered by respondents. Ante, at 254. Neither of these explanations is even minimally persuasive. The first is the suggestion that the alien-exemption provision indicates, by negative implication, merely that aliens are covered by Title VII if they are employed in the United States. This construction hardly makes sense of the statutory language as a whole; indeed, it hardly makes sense. Under respondents' construction of the statute, no one — neither citizen nor alien — is protected from discrimination abroad. Thus, in order to credit respondents' interpretation of the alien-exemption provision, we must attribute to Congress a decision to enact a completely superfluous exemption solely as a means of signaling its intent that aliens be protected from employment discrimination in this Nation. In addition to being extremely improbable, such a legislative subterfuge would have been completely unnecessary, for as we indicated in Espinoza v. Farah Mfg. Co., 414 U. S. 86 (1973), Congress clearly communicated its intent to cover aliens working in this country by prohibiting discrimination against any individual. See id., at 95. Respondents' second explanation is that Congress included the alien-exemption provision in anticipation that courts would otherwise construe Title VII to apply to companies employing aliens in United States possessions, an outcome supposedly dictated by this Court's decision in Vermilya-Brown Co. v. Connell, 335 U. S. 377 (1948). This explanation may very well be true, but it only corroborates the conclusion that Congress expected Title VII to apply extraterritorially. Although there is no fixed legal meaning for the term possession, see id., at 386, it is clear that possessions, like foreign nations, are extraterritorial jurisdictions to which the presumption against extraterritorial application of a statute attaches. See Foley Bros., supra, at 285. [5] Because only one rule of construction applies to both types of jurisdiction, a court following Vermilya-Brown and Foley Brothers would have reached the same conclusion about the applicability of Title VII to companies employing aliens in possessions and to companies employing aliens in foreign nations. Consequently, if Congress believed that the alien-exemption provision was necessary to protect employers in the former class, it would have had just as much reason to believe that the provision was necessary to protect employers in the latter. In any case, the specific history surrounding the alien-exemption provision makes clear that Congress had the situation of U. S. employers employing citizens of foreign countries in foreign lands  firmly in mind when it enacted that provision. S. Rep. No. 867, supra, at 11 (emphasis added).",Title VII states:
+555,109342,1,4,"
+Section 16 (b) imposes a strict prophylactic rule with respect to insider, short-swing trading. In Kern County Land Co., 411 U. S., at 595, we noted: The statute requires the [statutorily defined] inside, short-swing trader to disgorge all profits realized on all `purchases' and `sales' within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information. In short, this statute imposes liability without fault within its narrowly drawn limits. [26] As noted earlier, Foremost recognizes the ambiguity of the exemptive provision, but argues that where alternative constructions of § 16 (b)'s terms are available, we should choose the construction that best serves the statute's purposes. Foremost relies on statements generally to this effect in Kern County Land Co., supra, at 595, and Reliance Electric Co., 404 U. S., at 424. IN neither of those cases, however, did the Court adopt the construction that would have imposed liability, thus recognizing that serving the congressional purpose does not require resolving every ambiguity in favor of liability under § 16 (b). We reiterate that nothing suggests that the construction urged by Foremost would serve better to further congressional purposes. Indeed, the legislative history of § 16 (b) indicates that by adding the exemptive provision Congress deliberately expressed a contrary choice. But even if the legislative record were more ambiguous, we would hesitate to adopt Foremost's construction. It is inappropriate to reach the harsh result of imposing § 16 (b)'s liability without fault on the basis of unclear language. If Congress wishes to impose such liability, we must assume it will do so expressly or by unmistakable inference. It is not irrelevant that Congress itself limited carefully the liability imposed by § 16 (b). See Reliance Electric Co., supra, at 422-425. Even an insider may trade freely without incurring the statutory liability if, for example, he spaces his transactions at intervals greater than six months. When Congress has so recognized the need to limit carefully the arbitrary and sweeping coverage of § 16 (b), Bershad v. McDonough, 428 F. 2d 693, 696 (CA7 1970), cert. denied, 400 U. S. 992 (1971), courts should not be quick to determine that, despite an acknowledged ambiguity, Congress intended the section to cover a particular transaction.
+Our construction of § 16 (b) also is supported by the distinction Congress recognized between short-term trading by mere stockholders and such trading by directors and officers. The legislative discourse revealed that Congress thought that all short-swing trading by directors and officers was vulnerable to abuse because of their intimate involvement in corporate affairs. But trading by mere stockholders was viewed as being subject to abuse only when the size of their holdings afforded the potential for access to corporate information. [27] These different perceptions simply reflect the realities of corporate life. It would not be consistent with this perceived distinction to impose liability on the basis of a purchase made when the percentage of stock ownership requisite to insider status had not been acquired. To be sure, the possibility does exist that one who becomes a beneficial owner by a purchase will sell on the basis of information attained by virtue of his newly acquired holdings. But the purchase itself was not one posing dangers that Congress considered intolerable, since it was made when the purchaser owned no shares or less than the percentage deemed necessary to make one an insider. [28] Such a stockholder is more analogous to the stockholder who never owns more than 10% and thereby is excluded entirely from the operation of § 16 (b), than to a director or officer whose every purchase and sale is covered by the statute. While this reasoning might not compel our construction of the exemptive provision, it explains why Congress may have seen fit to draw the line it did. Cf. Adler v. Klawans, 267 F. 2d 840, 845 (CA2 1959).
+Section 16 (b)'s scope, of course, is not affected by whether alternative sanctions might inhibit the abuse of inside information. Congress, however, has left some problems of the abuse of inside information to other remedies. These sanctions alleviate concern that ordinary investors are unprotected against actual abuses of inside information in transactions not covered by § 16 (b). For example, Congress has passed general antifraud statutes that proscribe fraudulent practices by insiders. See Securities Act of 1933, § 17 (a), 48 Stat. 84, 15 U. S. C. § 77q (a); Securities Exchange Act of 1934, § 10 (b), 15 U. S. C. § 78j (b); 3 Loss, supra, n. 11, at 1423-1429, 1442-1445. Today an investor who can show harm from the misuse of material inside information may have recourse, in particular, to § 10 (b) and Rule 10b-5, 17 CFR § 240.10b-5 (1975). [29] It also was thought that § 16 (a)'s publicity requirement [30] would afford indirect protection against some potential misuses of inside information. [31] See Hearings on H. R. 7852 and H. R. 8720, supra, at 134-135; H. R. Rep. No. 1383, 73d Cong., 2d Sess., 13 (to accompany H. R. 9323, 73d Cong., 2d Sess., passed by the House, May 4, 1934, without the present § 16 (b)).",Additional considerations support our reading of the legislative history.
+556,111690,2,2,"1. Section 3205 (informed consent) and § 3208 (printed information). Section 3205(a) requires that the woman give her voluntary and informed consent to an abortion. Failure to observe the provisions of § 3205 subjects the physician to suspension or revocation of his license, and subjects any other person obligated to provide information relating to informed consent to criminal penalties. § 3205(c). A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional. See Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 67 (1976). But the State may not require the delivery of information designed to influence the woman's informed choice between abortion or childbirth. Akron, 462 U. S., at 443-444. Appellants refer to the Akron ordinance, Brief for Appellants 67, as did this Court in Akron itself, 462 U. S., at 445, as a litany of information and as  `a parade of horribles'  of dubious validity plainly designed to influence the woman's choice. They would distinguish the Akron situation, however, from the Pennsylvania one. Appellants assert that statutes describing the general subject matter relevant to informed consent, ibid., and stating in general terms the information to be disclosed, id., at 447, are permissible, and they further assert that the Pennsylvania statutes do no more than that. We do not agree. We conclude that, like Akron's ordinance, §§ 3205 and 3208 fail the Akron measurement. The two sections prescribe in detail the method for securing informed consent. Seven explicit kinds of information must be delivered to the woman at least 24 hours before her consent is given, and five of these must be presented by the woman's physician. The five are: (a) the name of the physician who will perform the abortion, (b) the fact that there may be detrimental physical and psychological effects which are not accurately foreseeable, (c) the particular medical risks associated with the particular abortion procedure to be employed, (d) the probable gestational age, and (e) the medical risks associated with carrying her child to term. The remaining two categories are (f) the fact that medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and (g) the fact that the father is liable to assist in the child's support, even in instances where the father has offered to pay for the abortion. §§ 3205(a)(1) and (2). The woman also must be informed that materials printed and supplied by the Commonwealth that describe the fetus and that list agencies offering alternatives to abortion are available for her review. If she chooses to review the materials but is unable to read, the materials shall be read to her, and any answer she seeks must be provided her in her own language. § 3205(a)(2)(iii). She must certify in writing, prior to the abortion, that all this has been done. § 3205(a)(3). The printed materials shall include the following statement:  `There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.'  § 3208(a)(1). The materials must describe the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child's survival. § 3208(a)(2). In Akron, this Court noted: The validity of an informed consent requirement thus rests on the State's interest in protecting the health of the pregnant woman. 462 U. S., at 443. The Court went on to state: This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth 's recognition of the State's interest in ensuring that this information be given will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth. Id., at 443-444. The informational requirements in the Akron ordinance were invalid for two equally decisive reasons. Id., at 445. The first was that much of the information required is designed not to inform the woman's consent but rather to persuade her to withhold it altogether. Id., at 444. The second was that a rigid requirement that a specific body of information be given in all cases, irrespective of the particular needs of the patient, intrudes upon the discretion of the pregnant woman's physician and thereby imposes the undesired and uncomfortable straitjacket with which the Court in Danforth, 428 U. S., at 67, n. 8, was concerned. These two reasons apply with equal and controlling force to the specific and intrusive informational prescriptions of the Pennsylvania statutes. The printed materials required by §§ 3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly overinclusive. This is not medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice. [10] Even the listing of agencies in the printed Pennsylvania form presents serious problems; it contains names of agencies that well may be out of step with the needs of the particular woman and thus places the physician in an awkward position and infringes upon his or her professional responsibilities. Forcing the physician or counselor to present the materials and the list to the woman makes him or her in effect an agent of the State in treating the woman and places his or her imprimatur upon both the materials and the list. See Women's Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1154 (RI 1982). All this is, or comes close to being, state medicine imposed upon the woman, not the professional medical guidance she seeks, and it officially structures — as it obviously was intended to do — the dialogue between the woman and her physician. The requirements of §§ 3205(a)(2)(i) and (ii) that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this would be nonmedical information beyond the physician's area of expertise and, for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the information in its very rendition may be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counselor knows, theoretical financial responsibility often does not equate with fulfillment. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest. The requirements of §§ 3205(a)(1)(ii) and (iii) that the woman be informed by the physician of detrimental physical and psychological effects and of all particular medical risks compound the problem of medical attendance, increase the patient's anxiety, and intrude upon the physician's exercise of proper professional judgment. This type of compelled information is the antithesis of informed consent. That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose. Pennsylvania, like Akron, has gone far beyond merely describing the general subject matter relevant to informed consent. Akron, 462 U. S., at 445. In addition, the Commonwealth would require the physician to recite its litany regardless of whether in his judgment the information is relevant to [the patient's] personal decision. Ibid. These statutory defects cannot be saved by any facts that might be forthcoming at a subsequent hearing. Section 3205's informational requirements therefore are facially unconstitutional. [11] Appellants assert, however, that even if this be so, the remedy is to allow the remainder of § 3205 to be severed and become effective. We rule otherwise. The radical dissection necessary for this would leave § 3205 with little resemblance to that intended by the Pennsylvania Legislature. We rejected a similar suggestion as to the ordinance in Akron, 462 U. S, at 445, n. 37, despite the presence there of a broad severability clause. We reach the same conclusion here, where no such clause is present, and reject the plea for severance. See Carter v. Carter Coal Co., 298 U. S. 238, 312-313 (1936). 2. Sections 3214(a) and (h) (reporting) and § 3211(a) (determination of viability). Section 3214(a)(8), part of the general reporting section, incorporates § 3211(a). Section 3211(a) requires the physician to report the basis for his determination that a child is not viable. It applies only after the first trimester. The report required by §§ 3214(a) and (h) is detailed and must include, among other things, identification of the performing and referring physicians and of the facility or agency; information as to the woman's political subdivision and State of residence, age, race, marital status, and number of prior pregnancies; the date of her last menstrual period and the probable gestational age; the basis for any judgment that a medical emergency existed; the basis for any determination of nonviability; and the method of payment for the abortion. The report is to be signed by the attending physician. § 3214(b). Despite the fact that § 3214(e)(2) provides that such reports shall not be deemed public records, within the meaning of the Commonwealth's Right-to-Know Law, Pa. Stat. Ann., Tit. 65, § 66.1 et seq. (Purdon 1959 and Supp. 1985), each report shall be made available for public inspection and copying within 15 days of receipt in a form which will not lead to the disclosure of the identity of any person filing a report. Similarly, the report of complications, required by § 3214(h), shall be open to public inspection and copying. A willful failure to file a report required under § 3214 is unprofessional conduct and the noncomplying physician's license shall be subject to suspension or revocation. § 3214(i)(1). The scope of the information required and its availability to the public belie any assertions by the Commonwealth that it is advancing any legitimate interest. In Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 80, we recognized that recordkeeping and reporting provisions that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible. But the reports required under the Act before us today go well beyond the health-related interests that served to justify the Missouri reports under consideration in Danforth. Pennsylvania would require, as Missouri did not, information as to method of payment, as to the woman's personal history, and as to the bases for medical judgments. The Missouri reports were to be used only for statistical purposes. See id., at 87. They were to be maintained in confidence, with the sole exception of public health officers. In Akron, the Court explained its holding in Danforth when it said: The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns. 462 U. S., at 430. The required Pennsylvania reports, on the other hand, while claimed not to be public, are available nonetheless to the public for copying. Moreover, there is no limitation on the use to which the Commonwealth or the public copiers may put them. The elements that proved persuasive for the ruling in Danforth are absent here. The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity. JUSTICE STEVENS, in his opinion concurring in the judgment in Bellotti v. Baird, 443 U. S. 622 (1979), aptly observed: It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties. Id., at 655. A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly. Although the statute does not specifically require the reporting of the woman's name, the amount of information about her and the circumstances under which she had an abortion are so detailed that identification is likely. Identification is the obvious purpose of these extreme reporting requirements. [12] The impermissible limits that Danforth mentioned and that Missouri approached, see 428 U. S., at 81, have been exceeded here. We note, as we reach this conclusion, that the Court consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. See, e. g., Lamont v. Postmaster General, 381 U. S. 301 (1965) (invalidating Post Office requirement that addressee affirmatively request delivery of communist materials in order to receive them); Talley v. California, 362 U. S. 60, 64-65 (1960) (striking down municipal ban on unsigned handbills); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462-465 (1958) (invalidating compelled disclosure of NAACP membership list). Pennsylvania's reporting requirements raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated. 3. Section 3210(b) (degree of care for postviability abortions) and § 3210(c) (second-physician requirement when the fetus is possibly viable). Section 3210(b) [13] sets forth two independent requirements for a postviability abortion. First, it demands the exercise of that degree of care which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted. Second, the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless, in the physician's good-faith judgment, that technique would present a significantly greater medical risk to the life or health of the pregnant woman. An intentional, knowing, or reckless violation of this standard is a felony of the third degree, and subjects the violator to the possibility of imprisonment for not more than seven years and to a fine of not more than $15,000. See 18 Pa. Cons. Stat. §§ 1101(2) and 1103(3) (1982). The Court of Appeals ruled that § 3210(b) was unconstitutional because it required a trade-off between the woman's health and fetal survival, and failed to require that maternal health be the physician's paramount consideration. 737 F. 2d, at 300, citing Colautti v. Franklin, 439 U. S. 379, 397-401 (1979) (where Pennsylvania's 1974 Abortion Control Act was reviewed). In Colautti, this Court recognized the undesirability of any  `trade-off' between the woman's health and additional percentage points of fetal survival. Id., at 400. Appellants do not take any real issue with this proposition. See Brief for Appellants 84-86. They argue instead, as did the District Court, see 552 F. Supp., at 806-807, that the statute's words significantly greater medical risk for the life or health of the woman do not mean some additional risk (in which case unconstitutionality apparently is conceded) but only a meaningfully increased risk. That interpretation, said the District Court, renders the statute constitutional. Id., at 807. The Court of Appeals disagreed, pointing out that such a reading is inconsistent with the statutory language and with the legislative intent reflected in that language; that the adverb significantly modifies the risk imposed on the woman; that the adverb is patently not surplusage; and that the language of the statute is not susceptible to a construction that does not require the mother to bear an increased medical risk in order to save her viable fetus. 737 F. 2d, at 300. We agree with the Court of Appeals and therefore find the statute to be facially invalid. [14] Section 3210(c) [15] requires that a second physician be present during an abortion performed when viability is possible. The second physician is to take control of the child and. . . provide immediate medical care for the child, taking all reasonable steps necessary, in his judgment, to preserve the child's life and health. Violation of this requirement is a felony of the third degree. In Planned Parenthood Assn. of Kansas City, Missouri, Inc. v. Ashcroft, 462 U. S. 476 (1983), the Court, by a 5-4 vote, but not by a controlling single opinion, ruled that a Missouri statute requiring the presence of a second physician during an abortion performed after viability was constitutional. JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded that the State had a compelling interest in protecting the life of a viable fetus and that the second physician's presence provided assurance that the State's interest was protected more fully than with only one physician in attendance. Id., at 482-486. [16] JUSTICE POWELL recognized that, to pass constitutional muster, the statute must contain an exception for the situation where the health of the mother was endangered by delay in the arrival of the second physician. Recognizing that there was no clearly expressed exception on the face of the Missouri statute for the emergency situation, JUSTICE POWELL found the exception implicit in the statutory requirement that action be taken to preserve the fetus provided it does not pose an increased risk to the life or health of the woman. Id., at 485, n. 8. Like the Missouri statute, § 3210(c) of the Pennsylvania statute contains no express exception for an emergency situation. While the Missouri statute, in the view of JUSTICE POWELL, was worded sufficiently to imply an emergency exception, Pennsylvania's statute contains no such comforting or helpful language and evinces no intent to protect a woman whose life may be at risk. Section 3210(a) [17] provides only a defense to criminal liability for a physician who concluded, in good faith, that a fetus was nonviable or that the abortion was necessary to preserve maternal life or health. It does not relate to the second-physician requirement and its words are not words of emergency. It is clear that the Pennsylvania Legislature knows how to provide a medical-emergency exception when it chooses to do so. It defined [m]edical emergency in general terms in § 3203, and it specifically provided a medical-emergency exception with respect to informational requirements, § 3205(b); for parental consent, § 3206; for post-first-trimester hospitalization, § 3209; and for a public official's issuance of an order for an abortion without the express voluntary consent of the woman, § 3215(f). We necessarily conclude that the legislature's failure to provide a medical-emergency exception in § 3210(c) was intentional. All the factors are here for chilling the performance of a late abortion, which, more than one performed at an earlier date, perhaps tends to be under emergency conditions.",We turn to the challenged statutes:
+557,106611,1,1,"As the Court has pointed out, the Commission terminated not only the § 5 (a) proceeding but also 10 consolidated § 4 (e) proceedings against Phillips, the latter on the ground that the revenue received by it for the periods involved was less than cost of service. In view of this disposition it is necessary, aside from the contention that there was no basis for dismissal of those proceedings covering years subsequent to 1954 on that year's findings, for us to examine the basis of its cost-of-service findings for 1954. The dismissal orders are all predicated upon the 1954 cost of service and if it be erroneous the whole basis for the orders of dismissal falls. Thus, while the petitioners have not here argued the specific challenges raised before the Commission and the Court of Appeals, their contention that the Commission abused its discretion in terminating the § 4 (e) proceedings necessarily includes the question of the validity of the determination of cost of service. In addition, the likelihood that the Court's affirmance will be regarded as an approval of these highly questionable standards for cost-of-service determination, thus fostering their application in other cases, calls for discussion of them. Aside from its direct expenditure for purchased gas [4] the largest single item in Phillips' costs appears to be its exploration and development expense, which was allowed in the amount of some $58,313,230 before allocation. We first examine it and other items going into cost of service. (a) Exploration and development, depletion allowance, allocation and interest costs. —Exploration and development expense for 1954 on the books of the company was $47,474,039, including undeveloped lease rentals, drilling tools, expired and surrendered leases, dry holes and land and geological activities. On these expenditures a return and taxes item was allowed of $10,839,194. Why the consumer should pay on these items, particularly dry holes ($11,306,964), expired and surrendered leases ($9,479,898) and undeveloped offshore leases ($17,765,332) is a matter for the experts; but it appears to me that since Phillips charged off the dry holes in its taxes and the consumers got nothing whatever in 1954 from expired and surrendered leases and undeveloped offshore leases, such expense should not be included in the rate base. This expense alone amounted to 4.281¢ per Mcf. of the total allowed cost of service of 11.1009¢. Moreover, in this connection, Phillips also enjoyed a tax depletion allowance of 27 1/2% on all gas production. This allowance for the year 1954 was $44,784,723, giving Phillips a tax saving of over $20,000,000. This latter sum was included in the rate base. However, depletion is allowed as an incentive to exploration and certainly its savings should be deducted from Phillips' total expense in this regard. Since the book deficit between total revenue and cost of service for 1954 was $8,900,000, it appears that a correction of this item alone would turn that deficit into a nice profit. (b) Allocation of cost between oil and gas. —Much of the gas produced for interstate sale is associated gas, i. e., it is produced along with oil and is known as casing-head gas. Fifty-seven percent of Phillips' gas production is associated gas but it accounted for only 13.42% of its combined revenue. In addition some wells produce condensate liquids and condensate gas which must be separated through gasoline plants. The question is how much of the expense of exploration, operation, etc., of wells should be chargeable to gas. Phillips used a B.t.u. method which allocated 61.88% of the expense to gas. The Commission cut this to 32.742%, equivalent to 4.281¢ per Mcf. The Examiner had recommended 30.46% while the Wisconsin experts came up with 20.812% and Pacific with 23.98%. As is noted above only 13.42% of Phillips' combined revenue comes from associated gas while 86.58% comes from oil. Still the Commission has allocated almost one-third of the exploration cost to gas, which only brings in one-seventh of the combined revenue. This is a most important item since each 1% shift means over a half million dollars in the rate base. (c) Purchased gas. —If allowed increased rates Phillips says its cost of gas will rise automatically under its percentage type purchase contracts. This item of $1,671,733 was disallowed by the Examiner since the suppliers were not shown to have been entitled to any increase. As the Commission points out an increase in rate would not increase the percentage Phillips was obligated to pay. It would require Phillips to pay the pro-rate increase in rates due on percentage gas, but it recoups this plus a profit when that gas is sold. I submit, as the Examiner found, that the allowance of this million and a half in the cost basis is erroneous. Increases through automatic escalator clauses—which effect the same result—are not permitted because not based on any increase in cost of production. In approving this practice in percentage contracts the Commission creates a perfect loophole for these producers and invites more contracts of this nature. (d) Interest. —Expense for money borrowed for 1954 amounted to $9,892,308. On its tax return Phillips claimed an allowance of only $3,743,077. This variance in cost of money seems to have occurred by reason of an exchange of Phillips' outstanding bonds for common stock. The Commission allowed the larger figure on the basis that it was a known change that probably would not occur in other years. It is interesting to note that the known change theory was not applied to the San Juan transfer made in 1955. [5] If applied there it would have made a difference against Phillips of some $8,000,000 in its 1954 rate base. Certainly common fairness would require the application of the known change theory to all cases, not simply an isolated one. It is readily apparent that the Commission's cost-of-service calculations for 1954 are full of holes. In addition, assuming, as I do not, that the 1954 cost is correct the Commission should not be permitted to extend that cost and the 1954 revenue into subsequent years through 1958 and hold that they too are deficit years. This is, on its face, not in keeping with rate-making procedures. Moreover, the record itself shows the error of the Commission's method. The Examiner found that, on Phillips' own presentation of its costs, the over-all deficiency for 1956 was not significantly higher than that derived in Phillips' 1954 test year cost of service. 24 F. P. C., at 773. Phillips' revenues, however, increased each year subsequent to 1954. In 1957 they were some $8,000,000 above 1954; they increased some $17,000,000 in 1958 and about $28,000,000 in 1959. In 1960 revenue was $90,856,248, which was practically twice that of 1954 ($45.6 million). These facts, all known to the Commission, required a reappraisal of the cost of service for all years subsequent to 1954, rather than the arbitrary use of the 1954 figures. The necessary data could have been quickly obtained from Phillips which, of course, had its total revenues readily available and, I am sure, had its cost basis for each § 4 increase likewise calculated. [6]",gross errors in the cost of service computations.
+558,106611,1,2,"The real problem, however, is not so much in Phillips' 1954 level, for that has long since gone by the board and the consumer may as well forget it. The increased levels that became effective between 1954 and the date of the decision in April 1959 are the main rub. The Examiner understood this when, in his final order, he directed Phillips to file uniform rates which would, when applied to sales made in 1954, bring Phillips its 1954 costs and allowed return. He further directed that the same schedule of rates be applied to all sales made subsequent to 1954 and through the date of his decision and to all sales thereafter. Under this requirement if the subsequent cost of service did increase and was not offset by increased revenues the company could recoup itself with § 4 rate increases. This the Commission refused to do and thereby left Phillips free to collect rates as high as 23.5¢ per Mcf. and subject to no refund. The Commission excused itself on the ground that there would be no reason to fix Phillips' rates on a cost basis since it was going to adopt the area plan. It also found the staleness of the test year prevented its application to subsequent years but obviously this was not the reason. In the first place, it used the stale test year of 1954 to justify its finding of deficit through 1958. In addition all parties had agreed upon that year. Investigation covered 1955 and 1956. Hearings began in June 1956 and ran through 1957. Phillips itself presented 1956 data, the latest full year at the time of the closing of the hearings. They were used to show that the cost experience of 1954 was identical for all practical purposes with 1956 and the Examiner so found. It required 15 months for the Examiner to decide the case and prepare a more comprehensive and detailed report which reflected his clear grasp of the problems. See 24 F. P. C. 590-818. Thus, like many major administrative proceedings, this one took five to six years to complete. But, I ask, if this makes the test year stale what of all the other major rate cases? Those that reach us not infrequently have been in the Commission for an equal or longer period. Even if stale, the Commission should not have dumped the whole investigation, hearing, Examiner Report, and staff work down the drain. Before doing so, and in the same opinion, it had already laid down detailed standards in the case for determining cost of service. Indeed it had not only determined the cost to Phillips but had formulated the standards governing its rate of return and calculated its allowable return thereunder. All of this it then discarded. Admitting that additional statistics for subsequent years might have been necessary, such data would have been concerned solely with the application of these already determined standards to those years. The dismissal of the § 4 (e) and § 5 (a) cases is the more unfortunate and indicates a disturbing disregard of the consumer interest. On the § 4 (e) cases the Court says most of Phillips' increased rates now in effect are the subject of pending § 4 (e) proceedings . . . . At this very moment Phillips is making sales at nonrefundable rates as high as 23.5¢ per Mcf. which produce annual revenues more than $3,000,000 in excess of the Commission's SGP 61-1 price levels. [7] On this score in 1956 the Commission authorized a large number of § 7 high price sales without providing for any conditions. This action was reversed in Atlantic Refining Co. v. Public Service Comm'n of New York, 360 U. S. 378 (1959), and like cases. Although § 5 proceedings have been filed on these cases there are substantial numbers of other such sales that have never been tested and are not now contested. Section 5 proceedings operate prospectively and so, of course, all of the sales are nonrefundable. The statistics indicate that of the 1960 revenue received by 13 major producers about $250,000,000 (roughly 83%) is not subject to refund. [8] Furthermore, the Court says that the rates covered by the § 4 (e) proceedings dismissed herein were `locked in,' their validity for the future was not at issue; the sole question was whether all or any part of the increases had to be refunded by Phillips. The fact is that the Commission has used this same stale 1954 price year which it discarded, including its income level, in determining that refunds were not due for the subsequent four years and in dismissing those proceedings. Hence dismissal forecloses any recovery of excess rates for the periods covering those proceedings, i. e., the four-year period 1954-1958, which the Commission has found non-refundable. As I have shown, the 1954 rate as determined by the Commission has serious questions as to its legality. Certainly the subsequent years—based entirely on it— should not have been dismissed. While it may be true, as the Court says, that Refund obligations . . . do not provide as much protection as the elimination of unreasonable rates it must be remembered that here the § 5 (a) case was also dismissed. Why this precipitous action? The proceedings had been on the books for six years! Why did not the Commission leave them pending until final determination of Phillips' responsibility on all of its more than 95 filings? The Commission makes no answer. There is none. The dismissal of the § 5 (a) proceeding was likewise unjustified. Continuation of the proceeding would have required a remand but the conclusion of the Court that several years might have elapsed before a determination of the issue is a bad guess. It has been two years since this dismissal and there is nothing in sight as yet for a final decision on the Permian Basin area proceeding. The Commission has 22 more areas to go. Meanwhile all areas, including Phillips', have escaped regulation for the years 1954-1963, a total of nine years. If in 1960 the Commission had remanded the § 5 (a) proceeding it could long since have been decided, since the enormous increase in Phillips' revenue for 1960 ($45.6 million in 1954 to $90.8 million in 1960) would have definitely shown an excessive rate. The Examiner had found, contrary to the conclusion of the Court, that the 1956 cost of service was not significantly higher than 1954. All that would have been necessary was to project this to the three-year period 1957-1959, inclusive. Phillips, I wager, could have done this almost overnight, if it did not already have the figures available. The Commission in determining the standards to be used had allowed every cost item save the allocation on associated gas which could have been easily corrected on the percentages involved. The remainder of Phillips' system of accounting had received the approval of the Commission and would have readily revealed its costs. The Court says that a new § 5 (a) proceeding can be filed. This is true, but if it were filed tomorrow, more than nine years will already have been lost to the consumer! The Commission, in my view, had no valid excuse for dismissing the § 4 (e) and § 5 (a) proceedings. It followed exactly the opposite course in Hunt Oil Co., 28 F. P. C. 623. The Court dismisses this case as inapposite but its technical distinction merits no discussion. As I see it the conclusion in Hunt not to dismiss the pending proceedings is in direct conflict with the action taken here. I have considered this record page by page—line by line—and have given the Commission's action my most careful attention. There is but one conclusion—namely, that the Commission erred in its determination of the 1954 cost of service and return; and in dismissing the § 4 (e) and § 5 (a) proceedings, rather than concluding the case by determining a just and reasonable rate, it acted in an arbitrary and unreasonable manner entirely outside of the traditional concepts of administrative due process.",the dismissals and their consequences.
+559,106611,1,3,"As the Court says, the validity of the Statement, SGP 61-1, and the rates accompanying it is not before the Court. But despite this declaration I notice that the Court proceeds to discuss the Statement and strongly implies a view as to its validity. I think it both premature and dangerous to pass any judgment at this stage of the proceedings. There are serious legal questions lurking in the application of the policy and we should not intimate its approval until a definitive case is presented under it. I deem it appropriate to raise these questions here not to join issue on the merits but only to outline the reasons for my reservations about the Court's consideration of this aspect of the case. While I do have serious doubts about both the wisdom and the legality of this approach to price determination, this is certainly not the case in which to give them full-dress treatment. It is of course true that the cost-of-service method is not the  sine qua non of natural gas rate regulation. It is not so much that the Commission must follow a single method but rather that, in abandoning a historic, presently used and undoubtedly legal one in the summary manner done here, it left the production of gas without the required regulation which the Congress has directed. It can hardly be denied that the Commission's action will leave producers for a number of years—estimated by the Court of Appeals at up to 14—without effective regulation and will result in irreparable injury to the consumer of gas. The only brakes on spiraling producer prices are the guide prices which the Commission attached to its SGP 61-1. These, rather than being legally established rates, are nonreviewable guides reflecting the highest certificated rate or weighted price. They have no binding effect. Indeed, they may well establish a floor rather than a ceiling. In addition, area pricing must run the hurdle of legal attack and, to be constitutionally sound, must include a showing that the individual producer at the area rate fixed will recover his costs; otherwise it would be confiscatory and illegal. I cannot share the Court's optimistic view that the Commission's area rate, tested by the `reasonable financial requirements of the industry' in each production area, is likely to do this. The facts of gas industry life make it crystal clear that one producer's costs vary immeasurably from another's and cannot be leveled off— at least until discovered. For example, Phillips' dry holes cost about $11,000,000, its surrendered leases $9,000,000 and its undeveloped offshore ones $17,000,000. Are these items to be included in the reasonable financial requirements used to fix the rate of the area? If they are it will be unfair for the reason that other producers in the area may or may not have had such costs. Inevitably, the area average will be lower than the high cost producer. Hence the financial requirements of the industry will not satisfy him. If the rate is set by the financial requirements of the higher cost producer it will be higher than that necessary to make it just and reasonable to the lower cost producer, thus resulting in a windfall to the latter. If the financial requirements of the lower cost producer are used it will result in a rate that will confiscate the gas of the higher cost producer. If the higher and lower costs are averaged, as the Commission indicates it intends to do, then the higher cost producer will still not recover his costs and the rate will be confiscatory. On the other hand the lower cost producer will receive a windfall. And so, as I see it, the area plan is in a squeeze— i. e., any criteria the Commission uses would not reflect individual just and reasonable rates. Moreover, it must be remembered that the burden of proving just and reasonable rates is on the producer and he cannot be precluded from offering relevant proof of his cost. This he will demand in the event his statistics show his costs above those fixed for his area. And so the cold truth is that, after all of its area pricing investigation and the fixing of a rate pursuant thereto, the producer aggrieved at that rate may demand and be entitled to a full hearing on his cost. The result is additional delay, delay and delay until the inevitable day when there is no more gas to regulate. Typical of this simple fact of gas industry life is the announcement last November 15 that the Commission staff had recommended two prices for the gas of the Permian Basin (Phillips) area. It was below the guidelines of the Commission's SGP 61-1 and, further, suggested that these prices be ceilings but not floors. Immediately there sprang up vigorous protest. Independent producers threatened to withdraw their support of the area pricing plan. A meeting was held in Washington with the Commission where it was insisted that realistic and uniform prices be followed in each area consistent with the implied promise of the original SGP 61-1 in this case. The producers were assured three months later that the staff's position is not necessarily that of the Commission. See Tipro Reporter, Feb.-Mar. 1963. It does not require a crystal ball to see what will happen regardless of the conclusion of the Commission. If it decides to make the rates suggested a floor, the respective independent producers will require individual cost proceedings; if the rates are made both a floor and a ceiling, thousands of old rates will be raised to the floor and the consumer will pay the bill. That the Commission's problems are difficult goes without saying. But as complicated as they appear to be it seems entirely feasible for it to solve them. Other agencies have been faced with like congestion problems. Indeed both the National Labor Relations Board and the Wage and Hour Administration found that they could not process all situations confronting them. They adopted procedures that exempted the inconsequential ones. See 23 N. L. R. B. Ann. Rep. 7-8 (1958). The suggestion that the Commission do likewise has much merit. It appears that in 1953, the year before Phillips, of all the producers then selling in interstate commerce, each of 4,191 producers sold less than 2,000,000,000 cubic feet of gas annually, the total of their sales being only 9.26% of the gas then sold in interstate commerce. See Landis, Report on Regulatory Agencies to the President-Elect (1960), 55. In the Commission's opinion in this case it stated that there were 3,372 producers selling interstate in 1960. The number has therefore decreased almost a thousand since the Phillips decision in 1954, which indicates that some of the smaller producers have escaped from their interstate commitments. However, if all of those who escaped were in the less than 2,000,000,000 cubic feet bracket there would still remain some 3,000 producers whose sales are miniscule. It therefore appears to me that inconsequential producers by the hundreds might well be temporarily exempted. The Commission could then concentrate on the large producers (20 of them control over 50% of the interstate gas) without the pressures incident to the smaller ones. The integrated producer of large volume is inevitably going to be the low cost producer. Hence his rate will be an effective floor from which the small producer rates might well be adjusted. This would give the consumer rate protection over the overwhelming amount of interstate gas more quickly [9] and would give assurances to the small producer that he would be protected from confiscation.",the fallacy of the statement of general policy.
+560,106611,1,4,"There are two inconsequential matters that the Court discusses. The first is the escalation clause in several of Phillips' contracts. The Commission has promulgated a series of rule-making orders condemning spiral escalation clauses as being against the public interest. By Orders Nos. 232 and 232A, 25 F. P. C. 379 and 609, respectively, 26 Fed. Reg. 1983 and 2850, it announced that these clauses in contracts executed on or after April 3, 1961, would be without effect. And Order No. 242, 27 F. P. C. 339, 27 Fed. Reg. 1356, announced that contracts containing such clauses would be unacceptable for filing after April 2, 1962. The Commission argues that the contracts under attack here were all dated prior to 1954 and hence its order refusing to find them void should be upheld. This is, of course, a non sequitur. Nor is it understandable how the clauses become effective against the public interest and unacceptable in 1961 but the identical provisions are blessed with validity prior to that date. I cannot subscribe to such a doctrine. However, since the Court requires the producer to establish its lawfulness wholly apart from the [escalation] terms of the contract I cannot become excited over it. Obviously the clauses have no effect whatsoever in determining the reasonableness of a rate from the public standpoint. They do have the effect of triggering the filing of increased rates. They should be completely outlawed by the Commission when the two § 4 (e) proceedings left pending are decided. The other miniscule point when compared to the basic questions in the case is whether Phillips' widely varying rates were on their face unduly discriminatory and preferential, as contended by petitioners in No. 72. The Court refrains from passing on this issue, regarding it as not raised in the court below or on rehearing before the Commission. Section 19 (b) of the Act precludes a court on review from considering an objection not raised in the petition for rehearing before the Commission, but it appears that petitioner Wisconsin adequately raised the issue of discrimination in its rehearing petition, [10] and the Commission in denying rehearing stated that Phillips' rates normally vary greatly . . . and there is nothing to show that these rates are discriminatory or preferential. 24 F. P. C., at 1009. I regret that the Court has chosen this occasion to stand on technicality, compare Federal Trade Comm'n v. Broch & Co., 368 U. S. 360, 363 (1962), when public interest stands the loss. The patently discriminatory nature of the rate increases, resulting in rates varying from 5.5¢ to 17.5¢ per Mcf. cannot seriously be questioned. The Examiner found that on the date of the Phillips decision its prices ranged from 1.2¢ to a high of 15.7¢ per Mcf. He concluded that to continue such a rate structure would preserve for Phillips an unduly discriminatory general rate structure, which would be contrary to the public interest . . . . 24 F. P. C., at 790. The Commission staff also found that Phillips contract rates vary so widely, even as between contracts for the same service from the same producing areas, as to patently contravene the public interest, generating and perpetuating undue preference and undue discrimination. Id., at 790-791. While the issue of discrimination was raised only generally in the Court of Appeals, [11] it was implicit in the broad questions on which we granted certiorari. While the issue is minor as compared to the primary issues here, it certainly results in a miscarriage of justice for the Court, on such a highly technical ground, to permit the Commission's disposition to stand, to the irreparable injury of the consumers of gas.",inconsequential matters.
+561,106423,1,1,"The order around which the present controversy centers, now titled Milk Marketing Order No. 2, 7 CFR §§ 1002.1 et seq., [2] though somewhat more complex than others, is in its general outline representative of the pattern of regulation established by the Secretary for the promotion of orderly marketing conditions in the milk industry and the preservation of minimum prices for farmers. Pursuant to the authority granted by § 8c (5) (A), [3] the Order classifies milk that is sold within the New York-New Jersey marketing area in accordance with the form in which or the purpose for which it is used. Milk that contains 3% to 5% butterfat—the usual proportion in ordinary liquid milk—and is sold for fluid consumption is assigned to Class I. Milk that is used for cream (sweet and sour), half and half, or milk drinks containing less than 3% or more than 5% butterfat is classified in Class II. The remainder—milk that is to be stored for a substantial period and used for dairy products such as butter and cheese—is grouped in Class III. 7 CFR § 1002.37. This classification reflects the relative prices usually commanded by the different forms of milk. Thus, highest prices are paid for milk used for fluid consumption, and the lowest for milk which is to be processed into butter and cheese. Since the supply of milk is always greater than the demands of the fluid-milk market, the excess must be channeled to the less desirable, lower-priced outlets. It is in order to avoid destructive competition among milk producers for the premium outlets that the statute authorizes the Secretary to devise a method whereby uniform prices are paid by milk handlers to producers for all milk received, regardless of the form in which it leaves the plant and its ultimate use. Adjustments are then made among the handlers so that each eventually pays out-of-pocket an amount equal to the actual utilization value of the milk he has bought. Under the Marketing Order here in question it is primarily the handlers whose plants are located within the marketing area and who regularly supply that are with fluid milk who are regulated. All handlers who receive or distribute milk within the area are required to submit monthly reports to the Market Administrator, listing the quantity of milk they have handled and the use for which it was sold. But only the handlers operating pool plants— i. e., plants which meet certain standards set out in 7 CFR §§ 1002.25-1002.29 [4] —must pay the producers from whom they buy the uniform price set by the Administrator. This price is calculated each month on the basis of the reports that are submitted. After determining the minimum prices for each use classification pursuant to formulas set out in 7 CFR § 1002.40, the Administrator computes an average price for the pool milk handled during that month. This figure is reached by first multiplying the pool milk disposed of in each class by the established minimum price for that class, and then adding the products to the compensatory payments made for nonpool milk. After certain minor adjustments are made, this sum is divided by the total quantity of pool milk sold in the market during the month. The quotient is a blend price. With some adjustments to reflect transportation expenses, this uniform price must be paid to producers by all handlers maintaining pool plants. 7 CFR § 1002.66. Adjustments among handlers are made by way of a Producer Settlement Fund, into which each handler contributes the excess of his use value [5] over the uniform price paid by him to his producer. Handlers whose use value of the milk they purchase is less than the blend price they are required to pay may withdraw the difference from the fund. The net effect is that each handler pays for his milk at the price he would have paid had it been earmarked at the outset for the use to which it was ultimately put. But the farmer who produces the milk is protected from the effects of competition for premium outlets since he is automatically allotted a proportional share of each of the different use markets.",the general scheme of milk regulation.
+562,106423,1,2,"It will thus be seen that this system of regulation contemplates economic controls only over pool-handler plants since only such handlers are required to pay the blend price to their producers and to account to the Producer Settlement Fund. If limited to the provisions recounted above, the regulatory scheme would not affect milk brought into the New York-New Jersey marketing area by handlers who are primarily engaged in supplying some other market and whose producers are not located within the New York-New Jersey area. Some of the regional orders now in effect do not undertake any economic regulation of outside or other source milk. [6] But it is quite obvious that under certain circumstances some regulation of such milk may be necessary. Accordingly, § 8c (7) (D) of the Act, 7 U. S. C. § 608c (7) (D), authorizes the Secretary to include in his regulating orders conditions that are incidental to terms expressly authorized by the statute, and that are necessary to effectuate the other provisions of such order. A handler who brings outside milk into a marketing area may disrupt the regulatory scheme in at least two respects: (1) Pool handlers in the marketing area who are required to pay the minimum class prices for their milk may find their selling prices undercut by those of nonpool handlers dealing in outside milk purchased at an unregulated price. (2) Producers in the marketing area, whose blend price depends on how much of the relatively constant fluid-milk demand they supply in a given month, may find the outside milk occupying a portion of the premium market, thus displacing the pool milk and forcing it into the less rewarding surplus uses, with the ultimate effect of diminishing the blend price payable to producers. In an effort to cope with these disruptive economic forces, the Secretary devised his compensatory payment plan. In essence the plan imposes special monetary exactions on handlers introducing outside milk for fluid consumption into a marketing area in months when there is a substantial surplus of milk on the market. [7] Of the 68 regional milk orders which establish marketwide pools, [8] 64 contain compensatory payment provisions of one kind or another. The Order now before us is typical of 23 of these orders. [9] The Order provides that a handler who brings outside milk into the New York-New Jersey area and sells it for fluid use must pay to the pool's producers, through the Producer Settlement Fund, an amount equal to the difference between the minimum prices for the highest and for the lowest use classifications prevailing in that area. In other words, for each hundredweight of nonpool milk sold for Class I use in the New York-New Jersey area, a payment equal to the difference between Class I and Class III prices must be made by the seller to the Producer Settlement Fund.",the compensatory payment provision.
+563,106423,1,3,"After the Court of Appeals for the Second Circuit had held the compensatory payment requirement in the New York-New Jersey Milk Marketing Order (then Order No. 27) to be a penalty, Kass v. Brannan, 196 F. 2d 791, 795, the Secretary of Agriculture conducted extensive hearings to determine whether it should be retained. His findings, which appear at 18 Fed. Reg. 8444-8454, explain this requirement as the most satisfactory means of imposing a suitable charge on such unpriced milk in an amount sufficient to neutralize, compensate for and eliminate the artificial economic advantage for non-pool milk which necessarily is created by the classified pricing and pooling of pool milk under the order. Id., at 8448. There seems little doubt that an assessment equal to the Class I-Class III differential would, in all but rare instances, nullify any competitive advantage that non-pool milk could have: only if the sum of the purchase price of the outside milk and the cost of its transportation to market were less than the Class III price would a handler find it profitable to bring such milk into the marketing area. But it must be obvious that this payment is wholly or partially compensatory— i. e., puts pool and nonpool milk on substantially similar competitive positions at source ( ibid. )—only if the milk has been purchased at not more than the Class III price. If the purchase price of the nonpool milk exceeds the Class III price within the area, the effect of the fixed compensatory payment is to make it economically unfeasible for a handler to bring such milk into the marketing area. The Secretary of Agriculture's determination that the Class I-Class III differential was the most suitable compensatory figure rested upon what was, in effect, an irrebuttable presumption that the nonpool milk was purchased at a rate commensurate with the value of surplus (Class III) milk. See 18 Fed. Reg., at 8448. [10] That presumption was based in turn on the supposition that the nonpool milk could not have been worth more than the Class III price where purchased since it could not be shipped elsewhere for Class I use. But it must be apparent that it is only if the milk is denied access to other marketing areas or if a prohibitive payment is assessed on its use elsewhere that it will depreciate in value to Class III levels. For if the milk can be freely shipped elsewhere for fluid use or if it is purchased in an area where prices paid to producers are regulated, it will command a higher price. Indeed, the facts of the case now before us demonstrate the shortcomings of the Secretary's reasoning. One of the petitioners, Suncrest Farms, Inc., purchases its milk in Pennsylvania under regulations established by the Pennsylvania Milk Control Commission. In September 1957, which was one of the months during which it sought to sell its milk in the New York-New Jersey Marketing Area, Suncrest was required to pay $6.40 per cwt. for the milk it purchased from dairy farmers in Pennsylvania. The Class I-Class III differential in the New York-New Jersey Marketing Area during that month was $2.78 per cwt. Thus, if the compensatory payment were assessed, Suncrest would actually be forced to pay $9.18 per cwt. for fluid milk sold in the area, while the handlers maintaining pool plants in the area would pay only the Class I price, which was $6.23 in August 1957. [11] If competitive parity among handlers of pool and nonpool milk were the only objective of the Secretary's compensatory regulation, other marketing orders of the Secretary show that this result has been achieved without imposing unnecessary hardships, virtually trade barriers as in the instance just given, [12] on the nonpool milk. [13] It is considering the effect of the present compensatory payment provision on the pool producers, however, that the principal concern of the Secretary becomes quite apparent. As has been noted (p. 82, supra ), the sale for fluid use of nonpool milk in the marketing area displaces pool milk that might otherwise be used for this premium outlet. Since the market area's blend price is computed only with reference to the pool milk, the effect of the entry of nonpool milk is to drive down the price that is paid to producers in the area. A close examination of the workings of the present compensatory payment provision reveals that its effect is to preserve for the benefit of the area's producers the blend price that they would receive if all outside milk were physically excluded and they alone would supply the fluid-milk needs of the area For every cwt. of pool milk that is forced into surplus use by the entry of nonpool milk, the handler introducing the outside milk is required to pay for the benefit of the area's producers the difference between the value the pool milk would have had if the nonpool milk had never entered and the value it has once the nonpool milk is sold for fluid use. [14] In effect, therefore, the nonpool milk is forced to subsidize the pool milk and insulate the pool milk from the competitive impact caused by the entry of outside milk. This was recognized by the Court of Appeals which held that such a compensatory payment was designed to compensate the pool for the loss of the Class I fluid milk utilization and . . . protect the uniform blend price in the marketing area. 287 F. 2d, at 730. It is only if the Secretary has been authorized by the statute to impose such economic trade barriers on the entry of milk into an area so as to protect the prices received by the pool producers that the present compensatory payment plan can be sustained as necessary to effectuate the expressly authorized provisions of this Order.",the purpose and effect of the compensatory payment.
+564,106423,1,5,"In light of the legislative history of § 8c (5) (G) we conclude that the compensatory payment provision of the New York-New Jersey Milk Marketing Order must fall as inconsistent with the policy expressed by Congress in that section. [20] Because it conflicts with § 8c (5) (G), the payment provision cannot be justified under the general terms of § 8c (7) (D), which prevents the inclusion of conditions that are inconsistent with express statutory provisions. Nor is the compensatory payment clause saved by the circumstance that in some instances it may also fortuitously operate to put the handlers of pool and non-pool milk on a competitive par. As has been pointed out (note 13, supra ), there are other means available to the Secretary for achieving this result, while affording protection to pool producers, without imposing almost insuperable trade restrictions on the entry of nonpool milk into a marketing area. The Government contends that the effect of § 8c (5) (G) may not be considered by this Court since that provision was not cited by the petitioners in the administrative proceeding in the Department of Agriculture. But even on the Government's premise that an unauthorized regulation should be upheld by this Court merely because the provision prohibiting it was not cited in the administrative proceeding in which it was attacked, this case presents no such instance. The administrative petition filed with the Department of Agriculture alleged that the effect of the compensatory payment clause amounted to establishing tariffs or barriers interfering with the free flow of milk across state lines, an obvious reference to the prohibition of § 8c (5) (G). In addition, the Government contends that the petitioners had the choice of joining the market-wide pool, in which case they would not have been subject to the compensatory payment provisions. Their election to stay out of the pool, it is argued, bars any attack on the consequences of their choice. However, such an election is surely illusory. The consequences of joining the pool would have been that petitioners would have been forced to pay the blend price to all their producers wherever located and account to the Producer Settlement Fund for all milk wherever sold. In these circumstances the election was not voluntary as in Booth Fisheries v. Industrial Comm'n, 271 U. S. 208, 211. It was coercive and, indeed, no election at all. Whether full regulation of the petitioners would be permissible under the Act is a question which we need not reach in this case. If the Secretary chooses to impose such regulation as a consequence of a handler's introducing any milk into a marketing area, the validity of such a provision would involve considerations different from those now before us. With respect to these petitioners, however, and with regard to the regulation here in issue, we conclude that the action of the Secretary of Agriculture exceeded the powers entrusted to him by Congress. The Secretary of course remains free to protect, in any manner consistent with the provisions of the statute, the blend price in this or any other marketing area against economic consequences resulting from the introduction of outside milk. We do not now decide whether or not any new regulation directed to that end could be made to apply retrospectively, or whether, if it could be validly so applied, the presently impounded funds could be resorted to pro tanto in its effectuation. Cf. United States v. Morgan, 307 U. S. 183. What further proceedings the Secretary may see fit to take in the light of our decision, or what determinations may be made by the District Court in relation to any such proceedings, are not matters which we should attempt to forecast or hypothetically to decide. Morgan v. United States, 304 U. S. 1, 23, 26. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case.",the invalidity of the present compensatory payment provision.
+565,105922,1,1,"The Court of Appeals thought that the Commission had no jurisdiction to consider petitioners' proposal because it was limited to a firm price agreed upon by the parties applicant. Their refusal to accept certification at a lower price, even to the extent of canceling their contracts and withholding the gas from interstate commerce, the court held, resulted in the Commission's losing jurisdiction. We do not believe that this follows. No sales, intrastate or interstate, of gas had ever been made from the leases involved here. The contracts under which the petitioners proposed to sell the gas in the interstate market were all conditioned on the issuance of certificates of public convenience and necessity. A failure by either party to secure such certificates rendered the contracts subject to termination. Certainly the filing of the application for a certificate did not constitute a dedication to the interstate market of the gas recoverable under these leases. Nor is there doubt that the producers were at liberty to refuse conditional certificates proposed by the Commission's second order. While the refusal might have been couched in more diplomatic language, it had no effect on the Commission's power to act on the rehearing requested. Even though the Commission did march up the hill only to march down again upon reaching the summit we cannot say that this about-face deprived it of jurisdiction. We find nothing illegal in the petitioners' rejection of the alternative price proposed by the Commission and their standing firm on their own.",jurisdiction of the commission.
+566,105922,1,2,"The purpose of the Natural Gas Act was to underwrite just and reasonable rates to the consumers of natural gas. Federal Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591 (1944). As the original § 7 (c) provided, it was the intention of Congress that natural gas shall be sold in interstate commerce for resale for ultimate public consumption for domestic, commercial, industrial, or any other use at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest. 52 Stat. 825. [7] The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. The heart of the Act is found in those provisions requiring initially that any proposed service, sale, operation, construction, extension, or acquisition . . . will be required by the present or future public convenience and necessity, § 7 (e), 15 U. S. C. § 717f (e), and that all rates and charges made, demanded, or received shall be just and reasonable, § 4, 15 U. S. C. § 717c. The Act prohibits such movements unless and until the Commission issues a certificate of public convenience and necessity therefor, § 7 (c), 15 U. S. C. § 717f (c). Section 7 (e) vests in the Commission control over the conditions under which gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (1956), file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U. S. C. § 717d, which authorizes the Commission sua sponte, or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however, the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during the pendency of a § 5 proceeding. In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7 (e) of the Act as being required by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, was decided in 1954, cases instituted under § 5 are still in the investigative stage. This long delay, without the protection of refund, as is possible in a § 4 proceeding, would provide a windfall for the natural gas company with a consequent squall for the consumers. This the Congress did not intend. Moreover, the fact that the Commission was not given the power to suspend initial rates under § 7 makes it the more important, as the Commission itself says, that this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest. 17 F. P. C. 563, 575. This is especially true where, as here, the initial price will set a pattern in an area where enormous reserves of gas appear to be present. We note that in petitioners' proof a map of the Continental Shelf area off of the coast of Louisiana shows that the leases here involved cover but 17 out of a blocked-out area covering some 900 blocks of 5,000 acres each. The potential of this vast acreage, in light of discoveries already made as shown by the record, is stupendous. The Commission has found that the transaction here covers the largest reserve ever committed to interstate commerce in a single sale. Indications are that it is but a puff in comparison to the enormous potentials present under the seabed of the Gulf. The price certificated will in effect become the floor for future contracts in the area. This has been proven by conditions in southern Louisiana where prices have now vaulted from 17 cents to over 23 cents per MCF. New price plateaus will thus be created as new contracts are made and unless controlled will result in exploitation at the expense of the consumer, who eventually pays for the increases in his monthly bill. It is true that the Act does not require a determination of just and reasonable rates in a § 7 proceeding as it does in one under either § 4 or § 5. Nor do we hold that a just and reasonable rate hearing is a prerequisite to the issuance of producer certificates. What we do say is that the inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7. Their proposals must be supported by evidence showing their necessity to the present or future public convenience and necessity before permanent certificates are issued. This is not to say that rates are the only factor bearing on the public convenience and necessity, for § 7 (e) requires the Commission to evaluate all factors bearing on the public interest. The fact that prices have leaped from one plateau to the higher levels of another, as is indicated here, does make price a consideration of prime importance. This is the more important during this formative period when the ground rules of producer regulation are being evolved. Where the application on its face or on presentation of evidence signals the existence of a situation that probably would not be in the public interest, a permanent certificate should not be issued. There is, of course, available in such a situation, a method by which the applicant and the Commission can arrive at a rate that is in keeping with the public convenience and necessity. The Congress, in § 7 (e), has authorized the Commission to condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant's existing rates by reason of favored nation clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary. This is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra , but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act's standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate. Thus the purpose of the Congress to create a comprehensive and effective regulatory scheme, Panhandle Eastern Pipe Line Co. v. Public Service Comm'n of Indiana, 332 U. S. 507, 520 (1947), is given full recognition. And § 7 is given only that scope necessary for a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission . . . . United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, at 341. On the other hand, if unconditional certificates are issued where the rate is not clearly shown to be required by the public convenience and necessity, relief is limited to § 5 proceedings, and, as we have indicated, full protection of the public interest is not afforded. Our examination of the record here indicates that there was insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of the permanent certificates. The witnesses tendered developed little more information than was included in the printed contracts. As the proposed contract price was higher than any paid by Tennessee, including offshore production in the West Delta area of Louisiana, it is surprising that evidence, if available, was not introduced as to the relative costs of production in the two submerged areas. Moreover the record indicates that the proposed price was some 70% higher than the weighted average cost of gas to Tennessee; still no effort was made to give the reason why. More damaging, was the evidence that this price was greatly in excess of that which Tennessee pays from any lease in southern Louisiana. Likewise the $16,000,000 pipeline to the producers' wells was unsupported by evidence of practice or custom. Respondents contend—and it stands undenied—that this alone would add 2 cents per MCF to the cost of the gas. Again the free movement of distillates retained by the producers was shrugged off as being de minimis, without any supporting data whatever. Nor was the evidence as to whether the certification of this price would trigger increases in leases with favored nation clauses convincing, and the claim that it would not lead to an increase in rates by Tennessee was not only unsupported but has already proven unfounded. [8] Nor do we find any support whatever in the record for the conclusory finding on which the order was based that the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas. 17 F. P. C. 880, 881. Admittedly any such need was wrapped up in the Commission's action in Docket G-11107, where Tennessee was asking for permission to enlarge its facilities. However, the two dockets were not consolidated and the Presiding Examiner conditioned his approval here on the granting of the application in Docket G-11107, no part of which record is here. Neither is there evidence supporting the finding that the producers would seek to dispose of their gas elsewhere than to Tennessee Gas and the interstate market, ibid. While the Commission says that statements were made in argument, apparently by counsel, that this was the case, we find no such testimony. Since some 90% of all commercial gas moves into the interstate market, the sale of such vast quantities as available here would hardly be profitable except interstate. These considerations require an affirmance of the judgment with instructions that the applications be remanded to the Commission for further proceedings. It is so ordered.",the validity of the order.
+567,108474,1,4,"1. Our holding necessarily means that a cognovit clause is not, per se, violative of Fourteenth Amendment due process. Overmyer could prevail here only if the clause were constitutionally invalid. The facts of this case, as we observed above, are important, and those facts amply demonstrate that a cognovit provision may well serve a proper and useful purpose in the commercial world and at the same time not be vulnerable to constitutional attack. 2. Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision other legal consequences may ensue. 3. Overmyer, merely because of its execution of the cognovit note, is not rendered defenseless. It concedes that in Ohio the judgment court may vacate its judgment upon a showing of a valid defense and, indeed, Overmyer had a post-judgment hearing in the Ohio court. If there were defenses such as prior payment or mistaken identity, those defenses could be asserted. And there is nothing we see that prevented Overmyer from pursuing its breach-of-contract claim against Frick in a proper forum. Here, again, that is precisely what Overmyer has attempted to do, thus far unsuccessfully, in the Southern District of New York. The judgment is Affirmed. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.",Some concluding comments are in order:
+568,118346,2,1,"The Tank Vessel Act of 1936, 49 Stat. 1889, enacted specific requirements for operation of covered vessels. The Act provided that [i]n order to secure effective provisions against the hazards of life and property, additional federal rules could be adopted with respect to the design and construction, alteration, or repair of such vessels, the operation of such vessels, and the requirements of the manning of such vessels and the duties and qualifications of the officers and crews thereof. The purpose of the Act was to establish a reasonable and uniform set of rules and regulations concerning . . . vessels carrying the type of cargo deemed dangerous. H. R. Rep. No. 2962, 74th Cong., 2d Sess., 2 (1936). The Tank Vessel Act was the primary source for regulating tank vessels for the next 30 years, until the Torrey Canyon grounding led Congress to take new action.",The Tank Vessel Act.
+569,118346,2,2,"Responding to the Torrey Canyon spill, Congress enacted the Ports and Waterways Safety Act of 1972 (PWSA). The Act, as amended by the Port and Tanker Safety Act of 1978, 92 Stat. 1471, contains two somewhat overlapping titles, both of which may, as the Ray Court explained, preclude enforcement of state laws, though not by the same pre-emption analysis. Title I concerns vessel traffic in any port or place under the jurisdiction of the United States. 110 Stat. 3934, 33 U. S. C. § 1223(a)(1) (1994 ed., Supp. III). Under Title I, the Coast Guard may enact measures for controlling vessel traffic or for protecting navigation and the marine environment, but it is not required to do so. Ibid. Title II does require the Coast Guard to issue regulations, regulations addressing the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels . . . that may be necessary for increased protection against hazards to life and property, for navigation and vessel safety, and for enhanced protection of the marine environment. 46 U. S. C. § 3703(a). The critical provisions of the PWSA described above remain operative, but the Act has been amended, most significantly by the Oil Pollution Act of 1990 (OPA), 104 Stat. 484. OPA, enacted in response to the Exxon Valdez spill, requires separate discussion.",The Ports and Waterways Safety Act of 1972.
+570,118346,2,3,"The OPA contains nine titles, two having the most significance for these cases. Title I is captioned Oil Pollution Liability, and Compensation and adds extensive new provisions to the United States Code. See 104 Stat. 2375, 33 U. S. C. § 2701 et seq. (1994 ed. and Supp. III). Title I imposes liability (for both removal costs and damages) on parties responsible for an oil spill. § 2702. Other provisions provide defenses to, and limitations on, this liability. 33 U. S. C. §§ 2703, 2704. Of considerable importance to these cases are OPA's saving clauses, found in Title I of the Act, § 2718, and to be discussed below. Title IV of OPA is entitled Prevention and Removal. For the most part, it amends existing statutory provisions or instructs the Secretary of Transportation (whose departments include the Coast Guard) to take action under previous grants of rule making authority. For example, Title IV instructs the Coast Guard to require reporting of marine casualties resulting in a significant harm to the environment. 46 U. S. C. § 6101(a)(5) (1994 ed. and Supp. V). Title IV further requires the Secretary to issue regulations to define those areas, including Puget Sound, on which single hulled tankers shall be escorted by other vessels. 104 Stat. 523. By incremental dates specified in the Act, all covered tanker vessels must have a double hull. 46 U. S. C. § 3703a.",The Oil Pollution Act of 1990.
+571,118346,2,4,"The scheme of regulation includes a significant and intricate complex of international treaties and maritime agreements bearing upon the licensing and operation of vessels. We are advised by the United States that the international regime depends upon the principle of reciprocity. That is to say, the certification of a vessel by the government of its own flag nation warrants that the ship has complied with international standards, and vessels with those certificates may enter ports of the signatory nations. Brief for United States 3. Illustrative of treaties and agreements to which the United States is a party are the International Convention for the Safety of Life at Sea, 1974, 32 U. S. T. 47, T. I. A. S. No. 9700, the International Convention for Prevention of Pollution from Ships, 1973, S. Exec. Doc. C, 93-1, 12 I. L. M. 1319, as amended by 1978 Protocol, S. Exec. Doc. C, 96-1, 17 I. L. M. 546, and the International Convention of Standards of Training, Certification and Watchkeeping for Seafarers, With Annex, 1978 (STCW), S. Exec. Doc. EE, 96-1, C. T. I. A. No. 7624. The United States argues that these treaties, as the supreme law of the land, have pre-emptive force over the state regulations in question here. We need not reach that issue at this stage of the case because the state regulations we address in detail below are pre-empted by federal statute and regulations. The existence of the treaties and agreements on standards of shipping is of relevance, of course, for these agreements give force to the longstanding rule that the enactment of a uniform federal scheme displaces state law, and the treaties indicate Congress will have demanded national uniformity regarding maritime commerce. See Ray, 435 U. S., at 166 (recognizing Congress anticipated arriving at international standards for building tank vessels and understanding the Nation was to speak with one voice on these matters). In later proceedings, if it is deemed necessary for full disposition of the case, it should be open to the parties to argue whether the specific international agreements and treaties are of binding, pre-emptive force. We do not reach those questions, for it may be that pre-emption principles applicable to the basic federal statutory structure will suffice, upon remand, for a complete determination.",Treaties and International Agreements.
+572,85024,1,1,"13 It is acknowledged that a tribunal, professing to be a Court of Admiralty, has condemned the property in question, and that the Appellees possess it by virtue of a capture on the high seas. This is prima facie evidence of the correctness of the title, and throws the onus probandi upon the Appellants. 14 A Court of Admiralty is a Court whose jurisdiction is co-ordinate with that of every other throughout the world. The Admiralty law is ' of all times and of all nations ,' and its decrees, so far as they uffect the thing itself, and so long as they remain unreversed, can never be questioned. The end being gained, it is an immaterial question, what were the means , as they are sanctified by the end. Whether the proceedings are erroneous, or not, according to our notions of right and wrong, whether they are predicated upon a mistake of the law , or of the fact , or are founded upon regulations consistent with, or repugnant to, the law of nations, are questions wholly immaterial. The sentence has sealed the proceedings, and those questions can never judiciary come before this Court. 15 In confirmation of these positions, it might be sufficient to refer to the decisions of this Court, where the principles are settled. 16 In the case of Rose v. Himely , 4 Cr. 292, this Court refused to confirm the property of the alleged purchaser, because the Court, passing sentence, had neither the actual nor constructive jurisdiction, nor power, over the subject the controversy. The point upon which it was decided was, that the vessel and cargo were seized, out of the territorial jurisdiction claimed by the French government of St. Domingo, for a breach of municipal regulations, and were never carried within that jurisdiction, but were sold by the captor at a foreign port. 17 Two Judges, (the Chief Justice and Judge Washington) thought that, in order to give jurisdiction, the property should have been taken as prize of war, and brought infra praesidia . Three (Judges Cushing, Chase and Livingston) were of opinion, that it would be conclusive even under a municipal regulation, provided it were carried to the country of the captors. Judge Johnson considered it conclusive at all events. But even in that case, the Chief Justice says, in p. 276, 'If the 'Court of St. Domingo had jurisdiction, the sentence 'is conclusive.' In the case of Hudson and others v. Guestier , and La Font v. Bigelow , 4 Cr. 293, it is decided that, in case of prize of war, a condemnation, while lying in a neutral port , will bind the property; an that the same principle applies to a seizure made within the territory of a state, for a violation of its municipal laws , p. 296. Judges Chase and Livingston dissented, because the vessel was not carried into a French port for trial. Judge Johnson adhered to his former opinion, that it was immaterial whether the capture was made in the exercise of municipal or belligerent rights, or whether within the jurisdictional limits of France, where she is supreme, or upon the high seas, where her authority is concurrent with that of other nations. P. 298. 18 In the case of Croudson and others, v. Leonard , 4 Cr. 434, it was decided, that a sentence of condemnation for breach of blockade, was conclusive evidence of a violation of the warranty of neutrality in a policy of insurance. 19 In the case of Rose & Himely, above mentioned, the incidental questions were decided in favor of our positions; for here it was prize of war , seized and condemned within the jurisdiction of the Court; yet it may be said the issue of that case was adverse. If so, it was expressly over-ruled in Hudson & Smith, v. Guestier , 6 Cr. 281. The Court there unanimously decided, that the judge of the French Court must have had a right to dispese of every question made in behalf of the owner of the property, whether it related to the jurisdiction of the Court, or arose out of the law of nations, or out of the French decrees, or in any other way: and even if the reasons of his judgment should not be satisfactory, it would be no ground for a foreign Court to rescind his proceedings, and to refuse to consider his sentence as conclusive on the property; and that, as the title was changed by the condemnation at Guadalope, the original owner had no right to pursue it in the hands of a vendee. 20 But this is no new principle of law originating with the present state of the world, which would seem rather to forbid it; since the rapacity of Courts of admiralty on the one side, and their acknowledged subserviency to the governing power on the other, diminish the respect which would otherwise be due to their sentences. 21 The conclusive effect of a foreign sentence in changing the property seems to have been first judicially decided in the case of Hughes v. Cornelius , 2 Shower , 242. Sir T. Raymond , 473. Skin. 59. Lord Raym. 893. 935. Vern. 21. The authority of this case has never been questioned. The only question has been as to the collateral effect between underwriters and the assured in cases of warranty in a policy of insurance. And even there, whenever the condemnation has been upon the ground of its being the property of an enemy, the sentence has always been holden to be conclusive, without regard to the circumstances by which the Court came to that result. The sentence is conclusive as to whatever it purports to decide. Park. 355. 360, 361-2, Rob. 173, The Christopher . 4 Rob. 35, The Henrick and Maria . 5 Rob. 255, The Comet . 4 Rob. 3, The Helena . 3 Bos. & Pul. 505, Lothian v. Henderson , 7 T. R. 526, Calvert v. Boville , 7 T. R. 681, Geyer v. Aguilar. East , 473, Oddy v. Boville . 3 Bos. & Pul. 201, Baring v. Clagett . 5 East , 99, Baring v. Royal Exch. Ins. Co. 5 East , 155, Bolton v. Gladstone . Such also has been the course of decisions in the different American States. 1 Binney , 295, Calhoun v. Penn. In. Co. 3 Binney , 220, Cheviot v. Faussat . 2 Johnson's N. Y. cases , 451, Vanderheuvel v. The United In. Co. S. C. 127. 22 Such being the acknowledged effect of a foreign condemnation, the only remedy for the injured party is a resort to the Court of the captors for redress. If that government will not afford it, he must apply to his own, which will make it a national concern to be settled either by negotiation or war, if it be deemed a matter of sufficient importance. Doug. 614, Le Caux v. Eden . 23 The fact that the Milan decree was a violation of the law of nations, and of our neutral rights, can make no difference. For if an unjust condemnation, professing to be founded upon a just law, be conclusive, there is no reason why a condemnation, founded upon an unjust law, should not be equally conclusive. 24 The question is not, whether this Court will lend its aid to carry into effect the Milan decree, but whether it will reverse the sentence of a foreign Court, and destroy vested rights acquired under such a sentence by a bona fide purchaser. 25 But it is said the purchase was made before the sentence of condemnation was passed, and was therefore void. This, however, can make no difference. The effect of the condemnation is not to vest the property, but to sanctify a title which was vested by the capture; to confirm all intermediate acts, and to give a judicial sanction to that which was already sufficiently firm in point of fact. 1 Wils. 211. 2 Azuni , 262. 12 Mod. 134, Rex v. Broome. Carth. 398. S. C. The condemnation does not give property, it only establishes the fact that the captor had a lawful title by the capture. These maritime sales in market overt give an indefeasible title. 4 Johnson , 38, 39, Grant v. M'Lachlan . In cases of foreign attachment, if the attached goods are perishable, or from their situation are exposed to peculiar danger, the constant practice is to order a sale, and such sales are valid, although the attaching creditor may fail to support his claim. 26 It is an established principle, says the Court of errors, (2 Johnson's cases , 458,) that any person purchasing will be secure. 27 LAW, in reply , cited the cases of Geyer v. Aguilar, Pollard v. Bell, Price v. Bell, Bird v. Appleton, Mayne v. Walter . 1 Rob. 144, and Havelock v. Rockwood , 8 T. R. 268, to show that there must be a good cause for condemnation by the law of nations. He cited also, 4 Cr. 221. Doug. 574, and 1 Rob. 139, to the same point, and to show the limitation of the general principle of conclusiveness of a foreign sentence. As to the extent of the power of France over neutral commerce, he cited Marten's Law of Nations , 332; and to show that the Berlin and Milan decrees were in violation of our neutral rights, and were so declared by our government, he referred to the President's message to Congress of the 15 th of December , 1810, and cited 4 Cr. 292, Rose v. Himely . 3 Rob. 99, 333, 2 Rob. 239. 28 To show that the Court must have jurisdiction, before its decree can be conclusive, he cited 4 Cr. 471. 3 Rob. 96. To support the position that a sale before condemnation is not valid, he cited Marten's 332. 4 Cr. 250. 1 Browne's civil law , 254. 1 Rob. 139. 29 DANA, on the same side . 30 This is an appeal by a citizen of the United States to his government for redress for a violation of his neutral rights by a foreign sovereign. This Court exercises that branch of the government, which, in some countries of Europe, is exercised by the sovereign himself. The only question is, whether this Court has power to declare void a condemnation founded upon a decree which the legislature and the executive of the United States have declared to be a violation of our neutral rights, and contrary to the law of nations. This is a question never before agitated in the Courts of the United States. 31 This vessel has not violated the law of nations, nor the municipal law of any state or nation. 32 The sovereign power of a nation cannot be exercised on the high seas, unless over its own subjects or pirates, or jure belli . It can affect hostile property only. A municipal regulation can not rightfully affect neutral property, beyond the territorial jurisdiction. On the high seas all nations are equal. This property, having never been within the French jurisdiction, can never have offended against French municipal law. The Court had no jurisdiction under the municipal law of France in such a case. Suppose, in case of capture and recapture, the first captors proceed to libel and condemn the property in a French Court, while it is safe in a port of the United States, having never been within the jurisdiction of France. It can never be pretended that such a condemnation would be valid. 33","R. INGERSOLL, contra."
+573,105948,1,1,"A. Where lower court which withheld the case from the jury or set aside a jury verdict for the employee and ordered a new trial or rendered judgment for the employer was reversed: Hill v. Atlantic Coast Line R. Co., 336 U. S. 911. Urie v. Thompson, 337 U. S. 163. Brown v. Western R. of Alabama, 338 U. S. 294. Carter v. Atlantic & St. Andrews Bay R. Co., 338 U. S. 430. Stone v. New York, Chicago & St. Louis R. Co., 344 U. S. 407. Harsh v. Illinois Terminal R. Co., 348 U. S. 940. Smalls et al. v. Atlantic Coast Line R. Co., 348 U. S. 946. O'Neill v. Baltimore & Ohio R. Co., 348 U. S. 956. Neese v. Southern R. Co., 350 U. S. 77. Anderson v. Atlantic Coast Line R. Co., 350 U. S. 807. Strickland v. Seaboard Air Line R. Co., 350 U. S. 893. Cahill v. New York, N. H. & H. R. Co., 350 U. S. 898, 351 U. S. 183. Rogers v. Missouri Pacific R. Co., 352 U. S. 500. Webb v. Illinois Central R. Co., 352 U. S. 512. Arnold v. Panhandle & Santa Fe R. Co., 353 U. S. 360. Futrelle v. Atlantic Coast Line R. Co., 353 U. S. 920. Shaw v. Atlantic Coast Line R. Co. et al., 353 U. S. 920. Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U. S. 925. Thomson v. Texas & Pacific R. Co., 353 U. S. 926. McBride v. Toledo Terminal R. Co., 354 U. S. 517. Ringhiser v. Chesapeake & Ohio R. Co., 354 U. S. 901. Gibson v. Thompson, 355 U. S. 18. Stinson v. Atlantic Coast Line R. Co., 355 U. S. 62. Honeycutt v. Wabash R. Co., 355 U. S. 424. Ferguson v. St. Louis-San Francisco R. Co., 356 U. S. 41. Sinkler v. Missouri Pacific R. Co., 356 U. S. 326. Moore v. Terminal R. Assn., 358 U. S. 31. Baker et al. v. Texas & Pacific R. Co., 359 U. S. 227. Conner v. Butler, post, p. 29. Harris v. Pennsylvania R. Co., ante, p. 15. B. Where lower court which withheld the case from the jury or set aside a jury verdict for the employee and ordered a new trial or rendered judgment for the employer was sustained: Reynolds v. Atlantic Coast Line R. Co., 336 U. S. 207. Moore v. Chesapeake & Ohio R. Co., 340 U. S. 573. Herdman v. Pennsylvania R. Co., 352 U. S. 518.",cases in which certiorari was granted.
+574,105948,1,2,"A. Where lower court withheld case from the jury or overturned a jury verdict for employee and rendered judgment for the employer: Scocozza et al. v. Erie R. Co., 337 U. S. 907. Killian v. Pennsylvania R. Co. et al., 338 U. S. 819. Lavender v. Illinois Central R. Co., 338 U. S. 822. Roberts v. Alabama Great Southern R. Co., 340 U. S. 829. Emmick v. Baltimore & Ohio R. Co., 340 U. S. 831. Roberts v. Missouri-Kansas-Texas R. Co., 340 U. S. 832. Gentry v. Seaboard Air Line R. Co., 340 U. S. 853. Moleton v. Union Pacific R. Co., 340 U. S. 932. Healy v. Pennsylvania R. Co., 340 U. S. 935. Ottley v. St. Louis-San Francisco R. Co., 340 U. S. 948. Craven v. Atlantic Coast Line R. Co., 340 U. S. 952. Jaroszewski v. Central R. Co., 344 U. S. 839. Creamer v. Ogden Union R. & Depot Co., 344 U. S. 912. Frizzell v. Wabash R. Co., 344 U. S. 934. Gill v. Pennsylvania R. Co., 346 U. S. 816. Smith v. Baltimore & Ohio R. Co., 346 U. S. 838. Wetherbee v. Elgin, Joliet & Eastern R. Co., 346 U. S. 867. Shellhammer v. Lehigh Valley R. Co., 347 U. S. 990. Keiper v. Northwestern Pacific R. Co., 350 U. S. 948. Click v. Jacksonville Terminal Co., 350 U. S. 994. Barnett v. Terminal R. Assn. of St. Louis, 351 U. S. 953. Lupo v. Norfolk & Western R. Co., 352 U. S. 891. Collins v. Atlantic Coast Line R. Co., 352 U. S. 942. Bennett v. Southern R. Co., 353 U. S. 958. Kelly v. Pennsylvania R. Co., 355 U. S. 892. Dessi v. Pennsylvania R. Co., 356 U. S. 967. Baum v. Baltimore & Ohio R. Co., 358 U. S. 881. B. Where lower court sustained a jury verdict for the employer: Jones v. Illinois Terminal R. Co., 347 U. S. 956. Conser v. Atchison, Topeka & Santa Fe R. Co., 348 U. S. 828. Metrakos v. Cleveland Union Terminals Co., 348 U. S. 872. Kane v. Chicago, Burlington & Quincy R. Corp., 348 U. S. 943. Daulton v. Southern Pacific Co., 352 U. S. 1005. Burch v. Reading Co., 353 U. S. 965. Brinkley v. Pennsylvania R. Co., 358 U. S. 865. Masterson v. New York Central R. Co., post, p. 832. C. Where lower court reversed a jury verdict for the employee and directed a new trial: Banning v. Detroit, Toledo & Ironton R. Co., 338 U. S. 815. Dixon v. Atlantic Coast Line R. Co., 342 U. S. 830. Thomas v. Chesapeake & Ohio R. Co., 344 U. S. 921. Milom v. New York Central R. Co., 355 U. S. 953. Anderson v. Atlantic Coast Line R. Co ., post, p. 841. D. Where lower court sustained a jury verdict for the employee or held that the employee's case should have gone to the jury: Atlantic Coast Line R. Co. v. Haselden, 338 U. S. 825. Atlantic Coast Line R. Co. v. Hill, 340 U. S. 814. New York, New Haven & Hartford R. Co. v. Korte, 342 U. S. 868. Atchison, Topeka & Santa Fe R. Co. v. White, 343 U. S. 915. Pennsylvania R. Co. v. Donnelly, 344 U. S. 855. Denver & Rio Grande Western R. Co. v. McGowan, 344 U. S. 918. Terminal Railroad Assn. of St. Louis v. Barnett, 345 U. S. 956. Southern Pacific Co. v. Miller, 346 U. S. 909. Chicago, Milwaukee, St. Paul & Pacific R. Co. v. Woodrow, 347 U. S. 935. Fort Worth & Denver R. Co. v. Prine, 348 U. S. 826. Chicago, Burlington & Quincy R. Co. v. Bonnier, 348 U. S. 830. Chicago & North Western R. Co. v. Margevich, 348 U. S. 861. Louisiana & Arkansas R. Co. v. Johnson, 348 U. S. 875. Chattanooga Station Co. v. Massey, 348 U. S. 896. Chicago, Rock Island & Pacific R. Co. v. Kifer, 348 U. S. 917. Elgin, Joliet & Eastern R. Co. v. Crowley et al., 348 U. S. 927. Chicago, Rock Island & Pacific R. Co. v. Wright, 349 U. S. 905. Atlantic Coast Line R. Co. v. Chancey, 349 U. S. 916. Great Northern R. Co. v. Hallada, 350 U. S. 874. New York Central R. Co. v. Ruddy, 350 U. S. 884. New York, New Haven & Hartford R. Co. v. Cereste, 351 U. S. 951. Louisiana & Arkansas R. Co. v. Moore, 351 U. S. 952. Texas & Pacific R. Co. v. Buckles et al., 351 U. S. 984. Kansas City Southern R. Co. v. Justis, 352 U. S. 833. Chicago Great Western R. Co. v. Scovel, 352 U. S. 835. New York, Chicago & St. Louis R. Co. v. Masiglowa, 352 U. S. 1003. Illinois Central R. Co. v. Bowman, 355 U. S. 837. Elgin, Joliet & Eastern R. Co. v. Gibson, 355 U. S. 897. Martin v. Tindell, 355 U. S. 959. Kansas City Southern R. Co. v. Thomas, 356 U. S. 959. Missouri-Kansas-Texas R. Co v. Bush, 358 U. S. 827. Wabash R. Co. v. Wehrli, 358 U. S. 932. Butler et al. v. Watts, 359 U. S. 926. Pennsylvania R. Co. v. Byrne, 359 U. S. 960. Illinois Central R. Co. v. Andre, post, p. 820. E. Where lower court set aside a jury verdict for the employer because of erroneous instructions and granted a new trial: Wabash R. Co. v. Byler, 344 U. S. 826. Delaware, Lackawanna & Western R. Co. v. Siegrist, 360 U. S. 917.",cases in which certiorari was denied.
+575,98054,2,2,"§ 315. Every person driving a licensed hack, or express, shall be licensed as such driver, and every application for such license shall be indorsed, in writing, by two reputable residents of The City of New York testifying to the competence of the applicant. No owner of a licensed hack or express shall employ an unlicensed driver under a penalty of $10 for each and every offense. (Amend. app. June 29, 1909.)",II. Drivers of Licensed Vehicles.
+576,98054,2,6,"§ 330. Every vehicle of whatever construction kept or used for the conveyance of baggage, packages, parcels and other articles within or through The City of New York for pay, shall be deemed a public express, and the owner thereof shall be deemed a public expressman, and the term expressman shall be deemed to include any common carrier of baggage, packages, parcels or other articles within or through The City of New York. (Ord. app. May 22, 1899, § 18.) § 331. Every public express shall show on each outside thereof the word Express, or the letters Exp., together with the figures of its official number. (Id., § 19.) § 332. Every owner of a public express shall give a bond to The City of New York for each and every vehicle licensed in a penal sum of $100, with sufficient surety, approved by the Mayor or Chief of the Bureau of Licenses, conditioned for the safe and prompt delivery of all baggage, packages, parcels and other articles or things entrusted to the owner or driver of any such licensed express. (Id., § 20) § 333. The legal rates for regular deliveries, unless otherwise mutually agreed, shall be as follows in the city: Between points within any borough — Not more than five miles apart, each piece .......... $0 40 Not more than ten miles apart, each piece ........... 55 Not more than fifteen miles apart, each piece ....... 75 ===== Between points in different boroughs: One-half the above rates in addition. Special deliveries at rates to be mutually agreed upon. (Id., § 21.) [The succeeding provisions of Article III (subdivisions VI-XVI) and Article IV, relate to Junk Dealers, Dealers in Second-Hand Articles, Peddlers, etc., being the remaining businesses described in § 305.] TITLE 3. — GENERAL REGULATIONS AND COMPLAINTS. § 373. All license fees received by the Bureau of Licenses shall be regularly paid over to the City Treasury, except the license fees received from hackmen, dealers in junk and second-hand articles, and for stands within stoop-lines, which shall be paid into the Sinking Funds for the Redemption of the City Debt. (Ord. app. May 22, 1899, § 56.) § 374. The Mayor shall have power to appoint inspectors in the Bureau of Licenses to see that the provisions of this ordinance are fully and properly complied with; and all licensed vehicles and places of business shall be regularly inspected, and the result of such inspection shall be indorsed on the official license therefor, together with the date of inspection and the signature of the inspector, and all inspections shall be regularly reported to the Bureau of Licenses. (Id., § 57.) § 375. Every licensee shall have the official license and exhibit the same upon the demand of any person; and shall report within three days to the Bureau of Licenses any change of residence or place of business; and shall at all times perform the public duties of the business licensed when called upon so to do, if not actually unable. (Id., § 58.) § 376. All words, letters and numbers hereinbefore prescribed for licensed vehicles shall be shown permanently and conspicuously on each outside thereof in colors contrasting strongly with background, and not less than two inches high, as directed and approved by the Mayor or Chief of the Bureau of Licenses, and shall be kept legible and plainly visible at all times during the term of the license; and shall be obliterated or erased upon change of ownership or expiration of the license; and no person shall have or use any vehicle with words, letters or numbers thereon like those herein prescribed for licensed vehicles without being duly licensed therefor. (Id., § 59.) . . . § 378. The Chief of the Bureau of Licenses, or Deputy Chief, shall have power to hear and determine complaints against licensees hereunder and impose a fine of not more than five dollars or less than one dollar for any violation of the regulations herein provided, subject to the approval of the Mayor, who shall have power to suspend the license pending payment of such fine. All such fines, when collected, shall be paid into the Sinking Fund for the Redemption of the City Debt. (Id., § 61.) TITLE 4. — VIOLATIONS. § 379. Except as hereinbefore otherwise provided, no person shall violate any of the regulations of this ordinance under a penalty of ten dollars for each offense. No such violation shall be continued under a penalty of one dollar for each day so continued. Any person engaging in or carrying on any business herein regulated without a license therefor, or any person violating any of the regulations of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction thereof by any magistrate, either upon confession of the party or competent testimony, may be fined not more than ten dollars for each offense, and in default of payment of such fine may be committed to prison by such magistrate until the same be paid; but such imprisonment shall not exceed ten days. (Id., § 62, as amended June 29, 1909.)",V. Expresses and Expressmen.
+577,97949,1,1,"Prior to the construction of the Huntington Short Line levee by the United States the waters of the Mississippi River did not overflow and submerge the Timberlake plantation hereinafter described at such frequent intervals and for such duration as to disturb the claimant in the profitable use, enjoyment, and possession thereof or so as to materially affect its cultivation, productive capacity, or market value. It was then suitable for the purpose of raising thereon, and there was profitably raised thereon, crops of cotton, cotton seed, corn, hay, and other products. Since the completion of said Huntington Short Line levee by the United States, placing the plantation of claimant between the old and new levee, in the restricted and narrower high-water channel of the river, the rises in the water of said river, by reason of the water being thus confined and restricted in its flow, have been, and are now, occurring at such frequent intervals and for such duration as to prevent the claimant from raising any kind of a crop thereon; the buildings have become untenantable and uninhabitable; the fencing washed away; the land covered with superinduced additions of water, earth, sand, and gravel to a depth of from 3 to 12 feet; said land has since grown up in willows, cottonwood, underbrush, and weeds so as to render it valueless to her; to destroy its market value; and to compel its abandonment.",timberlake plantation.
+578,109949,1,1,"Section 5 requires federal preclearance before a political subdivision of a State covered by § 4 of the Act may enforce a change in any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . . This provision marked a radical departure from traditional notions of constitutional federalism, a departure several Members of this Court have regarded as unconstitutional. [1] Indeed, the Court noted in the first case to come before it under the Act that § 5 represents an uncommon exercise of congressional power, South Carolina v. Katzenbach, 383 U. S. 301, 334 (1966), and the Justice Department has conceded in testimony before Congress that it is a substantial departure . . . from ordinary concepts of our federal system. Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 536 (1975) (testimony of Stanley Pottinger, Asst. Atty. Gen., Civil Rights Division). Congress tempered the intrusion of the Federal Government into state affairs, however, by limiting the Act's coverage to voting regulations. Indeed, the very title of the Act shows that the Act's thrust is directed to the protection of voting rights. Section 2 forbids the States to use any  voting qualification or prerequisite to voting, or standard, practice, or procedure (emphasis added) to deny anyone the right to vote on account of race. Similarly, § 4 sharply curtails the rights of certain States to use tests or devices as prerequisites to voting eligibility. [T]est or device is defined in § 4 (c), 42 U. S. C. § 1973b (c), as any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. (Emphasis added.) Finally, § 5 requires preclearance only of any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting  (emphasis added). [2] The question under this language, therefore, is whether Rule 58 of the Board pertains to voting. Contrary to the suggestion of the Court's opinion, see ante, at 42-43, the answer to this question turns neither on the Board's possible discrimination against the appellee, nor on the potential of enactments such as Rule 58 for use as instruments of racial discrimination. Section 5 by its terms is not limited to enactments that have a potential for discriminatory use; rather, it extends to all regulations with respect to voting, regardless of their purpose or potential uses. The affected party's race was conceded by counsel to be irrelevant in determining whether Rule 58 pertains to voting, see Tr. of Oral Arg. 25-27; nor is the timing of the adoption of Rule 58 of any significance. Indeed, in stating his cause of action under the Act, the appellee does not allege any discrimination on the basis of race. [3] Yet the Court, in holding that Rule 58 is subject to the preclearance requirements of § 5, relies on a perceived potential for discrimination. In so doing, the Court simply disregards the explicit scope of § 5 and relies upon factors that the parties have conceded to be irrelevant. [4] Separated from all mistaken references to racial discrimination, the Court's holding that Rule 58 is a standard, practice, or procedure with respect to voting is difficult to understand. It tortures the language of the Act to conclude that this personnel regulation, having nothing to do with the conduct of elections as such, is state action with respect to voting. No one is denied the right to vote; nor is anyone's exercise of the franchise impaired. To support its interpretation of § 5, the Court has constructed a tenuous theory, reasoning that, because the right to vote includes the right to vote for whoever may wish to run for office, any discouragement given any potential candidate may deprive someone of the right to vote. In constructing this theory, ante, at 41, the Court relies upon Bullock v. Carter, 405 U. S. 134 (1972); Hadnott v. Amos, 394 U. S. 358 (1969); and Allen v. State Board of Elections, 393 U. S. 544 (1969)—cases that involved explicit barriers to candidacy, such as the filing fees held to violate the Fourteenth Amendment in Bullock. The Court states that the reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance. Ante, at 41. But the notion that a State or locality imposes a qualification on candidates by refusing to support their campaigns with public funds is without support in reason or precedent. As no prior § 5 decision arguably governs the resolution of this case, the Court draws upon broad dictum that, taken from its context, is meaningless. [5] For example, in Allen v. State Board of Elections, supra, at 566, the Court suggested that § 5 would require clearance of any state enactment which alter[s] the election law of a covered State in even a minor way. Even if the language in Allen were viewed as necessary to the Court's holding in that case, it would not support today's decision. In Allen, as in each of the cases relied upon today, [6] the Court was considering an enactment relating directly to the way in which elections are conducted: either by structuring the method of balloting, setting forth the qualifications for candidates, or determining who shall be permitted to vote. These enactments could be said to be with respect to voting in elections. Rule 58, on the other hand, effects no change in an election law or in a law regulating who may vote or when and where they may do so. It is a personnel rule directed to the resolution of a personnel problem: the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than to counseling schoolchildren. After extending the scope of § 5 beyond anything indicated in the statutory language or in precedent, the Court attempts to limit its holding by suggesting that Rule 58 somehow differs from a neutral personnel practice governing all forms of absenteeism, as it specifically addresses the electoral process. See ante, at 40. Thus, the Court intimates that it would not require Rule 58 to be precleared if the rule required Board employees to take unpaid leaves of absence whenever an extracurricular responsibility required them frequently to be absent from their duties—whether that responsibility derived from candidacy for office, campaigning for a friend who is running for office, fulfilling civic duties, or entering into gainful employment with a second employer. The Court goes on, however, to give as the principal reason for extension of § 5 to Rule 58 the effect of such rules on potential candidates for office. What the Court fails to note is that the effect on a potential candidate of a neutral personnel practice governing all forms of absenteeism is no less than the effect of Rule 58 as enacted by the Dougherty County School Board. Thus, under a general absenteeism provision the appellee would go without pay just as he did under Rule 58; the only difference would be that Board employees absent for reasons other than their candidacy would join the appellee on leave. Under the Court's rationale, therefore, even those enactments making no explicit reference to the electoral process would have to be cleared through the Attorney General or the District Court for the District of Columbia. Indeed, if the Court truly means that any incidental impact on elections is sufficient to trigger the preclearance requirement of § 5, then it is difficult to imagine what sorts of state or local enactments would not fall within the scope of that section. [7]","Standard, Practice, or Procedure"
+579,109949,1,2,"Section 5 requires federal preclearance only of those voting changes that are adopted either by a State covered under § 4 or by a political subdivision of such a State. Although § 14 (c) (2) of the Act restricts the term political subdivision to state institutions that conduc[t] registration for voting, last Term the Court ruled that the preclearance requirement of § 5 applied to the city of Sheffield, Ala., which is without authority to register voters. See United States v. Board of Commissioners of Sheffield, 435 U. S. 110 (1978). Sheffield had been given authority, however, to undertake a substantial restructuring of the method by which its government officials would be selected. [8] Thus, pursuant to a voter referendum, Sheffield had changed from a commission to a mayor-council form of government. Councilmen were to be elected at large, but would run for numbered seats corresponding to the two council seats given each of the city's four wards. The Court held that Sheffield was a political subdivision, in spite of its lack of authority to register voters. Today the Court states that appellants' contention is squarely foreclosed by our decision last Term in Sheffield. Ante, at 44. The contention that this local school board is not a political subdivision under the Act is foreclosed only because the Court now declares it to be so, as neither the holding nor the rationale of Sheffield applies to this case. The Sheffield decision was based on two grounds, neither of which is present here. First, the Sheffield Court relied upon congressional intent as derived from the Act's structure, the language of the Act, the legislative history of . . . enactment and re-enactments, and the Attorney General's consistent interpretations of § 5. 435 U. S., at 117-118. Second, the Court based its decision on the frustration of the Act's basic policy that would result if a State could circumvent the Act's provisions by simply withdrawing the power to register voters from all or selected cities, counties, parishes, or other political subdivisions. [9] There is nothing in the language, structure, or legislative history of the Act that suggests it was Congress' intent that local entities such as the Board were to fall within the reach of § 5; nor has the Court cited any consistent interpretation of § 5 by the Attorney General that supports the Court's holding. [10] Looking to the structure of the Act, the Court argues that whether a subdivision has electoral responsibilities is of no consequence in determining whether § 5 is applicable. Ante, at 45-46. Rather, it is said that this provision directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it. Ibid. Neither Sheffield nor any other decision of the Court suggests that § 5 applies to the actions of every local entity however remote its powers may be with respect to elections and voting. Indeed, the Court indicated the importance of direct power over elections in Sheffield when it repeatedly emphasized Sheffield's power over the electoral process. [11] See, e. g., 435 U. S., at 118, 120, 122, 127. A rational application of Sheffield would require consideration of whether the entity enacting a change had a substantial measure of authority over the way in which elections were held or over the right to vote. The city of Sheffield had such authority; the Dougherty County School Board does not. Although professing to find support in the legislative history of the Act, the Court cites no committee report or statement by any supporter of the Act that suggests a congressional intention to require federal preclearance of actions by local entities that are powerless to exercise any control over elections or voting. The Court does try to connect § 5 to school boards by references to legislative history that are entirely irrelevant. The Court neglects to make clear that each of these references pertained to a school board enacting changes in the way its members were elected, something the Dougherty County School Board is without authority to do. [12] See 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis) (Any changes, so far as election officials were concerned, which were made in precincts, county districts, school districts, municipalities, or State legislatures . . . had to be submitted); Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 467-470 (1975) (school board enacting changes from ward to at-large elections for its members); S. Rep. No. 94-295, p. 27 (1975) (school boards in Texas adopting [e]lection law changes to avoid election of minority groups to school boards). Furthermore, the Sheffield Court's concern over the possible circumvention of the Act is inapposite here, as the Board (unlike the city of Sheffield) has no authority to regulate the electoral process. There can be no danger, therefore, that substantial restructuring of the electoral system will take place in Dougherty County without the scrutiny of either the Attorney General or the District Court for the District of Columbia. Thus, none of the factors relied upon in Sheffield is present in this case: There is no relevant language of the Act, nothing in the Act's structure, nothing in its legislative history, and no consistent interpretation of § 5 by the Attorney General to support the extension of § 5 to the Board's enactments. Nor is it possible that a local school board that is without authority over the electoral process will be used to circumvent the Act's basic policy. There simply is no parallel in fact or governmental theory between a city like Sheffield and the Dougherty County School Board. Finding no support for its decision in the rationale of Sheffield, the Court falls back upon language in that opinion that all entities having power over any aspect of the electoral process are subject to § 5—language merely expressing a conclusion drawn from a consideration of the factors present in Sheffield, but absent here. [13] The Board has no power over any aspect of the electoral process in the normal sense of these words. It did not purport by Rule 58 to regulate the appellee's election to the Georgia House of Representatives; it has been given no authority under Georgia law to do so. Rather, the Board merely has said to its employees that, if they choose to run for any elective office, the Board will not affirmatively support their campaign by paying their wages despite the neglect of their duties that inevitably will occur. Such neutral action designed to protect the public fisc hardly rises to the level of power over . . . the election process. In sum, I would reverse the judgment below on either or both of two grounds. The Dougherty County School Board is not a political subdivision within the meaning of the Act. Even if it were deemed to be such, the personnel rule at issue is not a standard, practice, or procedure with respect to voting. As respectful as I am of my Brothers' opinions, I view the Court's decision as simply a judicial revision of the Act, unsupported by its purpose, statutory language, structure, or history.",Political Subdivision
+580,104758,1,1,"The respondents' case and the decision below are rested heavily on this argument that the Commission is invading the province of the judiciary. The Court of Appeals held that the Commission's order of September 2, 1947, represented an unauthorized attempt to enforce that court's decree. It pointed out that the statute had made the court's own jurisdiction of the proceeding exclusive and its own decree final. It considered that every vestige of jurisdiction over that subject was firmly and exclusively lodged in [the] Court of Appeals. It noted that it had required filing of only the original compliance reports, and that it had protected its jurisdiction by reserving power to enter further orders necessary to enforce compliance and prevent evasion. It thought that the effect of the Commission's proceedings was to assert such jurisdiction to reside elsewhere. It seems conceded, however, that some power or duty, independently of the decree, must still have resided in the Commission. [3] Certainly entry of the court decree did not wholly relieve the Commission of responsibility for its enforcement. The decree recognized that. It left to the Commission the right and hence the responsibility to initiate contempt proceedings for the violation of this decree. This must have contemplated that the Commission could obtain accurate information from time to time on which to base a responsible conclusion that there was or was not cause for such a proceeding. The decree also required the original report showing the manner and form of each respondent's compliance to be filed, not with the court but with the Commission. Presumably the Commission was expected to scrutinize it and, if insufficient on its face, to reject it and move the court to take notice of the default. And the duty likewise was left upon the Commission to move the court if any respondent made a false report. The duty would appear to be the same if a temporary compliance were truly reported but conduct resumed which would violate the decree. In addition, the Trade Commission has a continuing duty to prevent unfair methods of competition and unfair or deceptive acts or practices in commerce. That responsibility as to all within the coverage of the Act is not suspended or exhausted as to any violator whose guilt is once established. If the Commission had petitioned the court itself to order additional reports of compliance, it could properly have been required to present some evidence of probable violation to overcome the presumption of legality, of innocence, and of obedience to the law which respondents here urge. Courts hesitate to alter or supplement their decrees except the need be proved as well as asserted. Evidence the Commission did not have; it had at most a suspicion, or let us say a curiosity as to whether respondents' reported reformation in business methods was an abiding one. Must the decree, after a single report of compliance, rest upon respondents' honor unless evidence of a violation fortuitously comes to the Commission? May not the Commission, in view of its residual duty of enforcement, affirmatively satisfy itself that the decree is being observed? Whether this usurps the courts' own function is, we think, answered by consideration of the fundamental relationship between the courts and administrative bodies. The Trade Commission Act is one of several in which Congress, to make its policy effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process. Its agencies are provided with staffs to institute proceedings and to follow up decrees and police their obedience. While that process at times is adversary, it also at times is inquisitorial. These agencies are expected to ascertain when and against whom proceedings should be set in motion and to take the lead in following through to effective results. It is expected that this combination of duty and power always will result in earnest and eager action but it is feared that it may sometimes result in harsh and overzealous action. To protect against mistaken or arbitrary orders, judicial review is provided. Its function is dispassionate and disinterested adjudication, unmixed with any concern as to the success of either prosecution or defense. Courts are not expected to start wheels moving or to follow up judgments. Courts neither have, nor need, sleuths to dig up evidence, staffs to analyze reports, or personnel to prepare prosecutions for contempts. Indeed, while some situations force the judge to pass on contempt issues which he himself raises, it is to be regretted whenever a court in any sense must become prosecutor. Those occasions should not be needlessly multiplied by denying investigative and prosecutive powers to other lawful agencies. The court in this case advisedly left it to the Commission to receive the report of compliance and to institute any contempt proceedings. This was in harmony with our system. When the process of adjudication is complete, all judgments are handed over to the litigant or executive officers, such as the sheriff or marshal, to execute. Steps which the litigant or executive department lawfully takes for their enforcement are a vindication rather than a usurpation of the court's power. In the case before us, it is true that the Commission's cease and desist order was merged in the court's decree; but the court neither assumed to itself nor denied to the Commission that agency's duty to inform itself and protect commerce against continued or renewed unlawful practice. This case illustrates the difference between the judicial function and the function the Commission is attempting to perform. The respondents argue that since the Commission made no charge of violation either of the decree or the statute, it is engaged in a mere fishing expedition to see if it can turn up evidence of guilt. We will assume for the argument that this is so. Courts have often disapproved the employment of the judicial process in such an enterprise. Federal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends. The judicial subpoena power not only is subject to specific constitutional limitations, which also apply to administrative orders, such as those against self-incrimination, unreasonable search and seizure, and due process of law, but also is subject to those limitations inherent in the body that issues them because of the provisions of the Judiciary Article of the Constitution. We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan no fishing expeditions. It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions. Compare Jones v. Securities & Exchange Comm'n, 298 U. S. 1, with United States v. Morgan, 307 U. S. 183, 191. The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law. Of course, the Commission cannot intrude upon or usurp the court's function of adjudication. The decree is always what the court makes it; the court's jurisdiction to review is and remains exclusive, its judgment final. What the Commission has done, however, is not to modify but to follow up this decree. It has not asked this report in the name of the court, or in reliance upon judicial powers, but in reliance upon its own law-enforcing powers. That Congress did not regard it as a judicial function to investigate compliance with court decrees, at least initially, is shown by its action as to other antitrust decrees. Section 6 (c) of the Act under consideration specifically authorizes the Commission, on its own initiative and without leave of court, to investigate compliance with final decrees in cases prosecuted by the Attorney General and not involving the Commission as a party. Congress obviously deemed it a function of the Commission, rather than of the courts, to probe compliance with such decrees, even when it had no part in obtaining them. It surely was not because of fear it would involve collision with the judicial function that Congress omitted express authorization for the Commission to follow up decrees in its own cases. Express grant of power would only seem necessary as to decrees in which the Commission had no other interest. Whether the Commission has invaded any private right of respondents, we consider under later rubrics. Our only concern under the present heading is whether the Commission's order infringes prerogatives of the court. We hold it does not.",invasion of court of appeals jurisdiction.
+581,104758,1,2,"The Administrative Procedure Act was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. It created safeguards even narrower than the constitutional ones, against arbitrary official encroachment on private rights. Thus § 3 (a) of the Act requires every agency to which it applies, which includes the Federal Trade Commission, to publish in the Federal Register certain statements of its rules, organization and procedure, including the nature and requirements of all formal or informal procedures available, and adds that, No person shall in any manner be required to resort to organization or procedure not so published. In addition § 6 (b) proscribes any requirement of a report or other investigative demand in any manner or for any purpose except as authorized by law. Principally on the basis of these two sections respondents contend that the current order cannot be enforced except in violation of the Administrative Procedure Act. Have the respondents been ordered to comply with procedure of which they were not put on notice by publication in the Federal Register? And to the extent that the procedure had been defined and published, was it authorized by law? The pertinent provisions of the Administrative Procedure Act became effective September 11, 1946. On December 11, 1946, the Federal Trade Commission published in the Federal Register its Rules of Practice, 11 Fed. Reg. 14233-14239. The Commission's Rule XXVI, id., 14237, republished without change in 12 Fed. Reg. 5444, 5448, sets the time limit for filing initial reports of compliance with Commission orders and asserts the Commission's right to require, within its sound discretion, the filing of further compliance reports thereafter. [4] In § 7.12 of its Statement of Organization, Procedures, and Functions, 12 Fed. Reg. 5450, 5452, the Commission restated its right to require by order such supplemental reports of compliance as it considers warranted, and defined the contents of such a report. [5] We conclude that the Commission's published Rule XXVI announced the right it claims in this case to demand of a party against whom an enforcement decree has been entered that it file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order . . . . Taken together with the Commission's Statement of Organization, Procedures, and Functions, supra, if indeed not by itself, Rule XXVI amply met the requirements of § 3 (a) of the Administrative Procedure Act. Respondents hardly challenge this conclusion. Theirs is the more subtle argument that requirement of supplemental reports following court enforcement of a Commission order is unauthorized by statute and ultra vires, so that no valid notice of Rule XXVI had been or could be given, as required by § 3 (a) of the Administrative Procedure Act. Also, it is said to be in direct violation of § 6 (b) of that Act. This leads to the question of statutory authority for the order to report, a question we must determine even apart from consideration of the Administrative Procedure Act. Accordingly we turn to the Federal Trade Commission Act itself to see whether it contains statutory authority for the Commission's Rule XXVI, as well as for its order here sought to be enforced, issued, as it was, pursuant to the procedures proclaimed in that Rule. If we find such statutory authority, we must conclude that the objections under the Administrative Procedure Act are taken in vain.",violation of the administrative procedure act.
+582,104758,1,3,"The Court of Appeals found the Commission to be without statutory authority to require additional reports as to compliance. Section 6 of the Federal Trade Commission Act, it thought, could not be invoked in connection with a decree sought and entered pursuant to § 5, which sections the court regarded as insulated from each other and directed to wholly different situations. Section 6, so it was held, authorized requirement only of special reports supplemental to annual reports and could not be authority for requiring special reports supplemental to a report of compliance required by court decree in a § 5 case. At the root of this position lies the elaborate and plausible argument of respondents that §§ 5 and 6 of the Act set up self-sufficient, independent and exclusive procedures for dealing with different matters and that therefore neither section can be supported or aided by the other. Respondents also say that the present use of the asserted power is novel and unprecedented in Commission practice and introduces a new method of investigating compliance. Respondents are not without statements by the Commission or its officials, dicta from judicial opinions, views of text writers and facts of legislative history which give some support to this theory. But this Court never before has been called upon to deal consciously and squarely with the subject. The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise. We know that unquestioned powers are sometimes unexercised from lack of funds, motives of expediency, or the competition of more immediately important concerns. We find no basis for holding that any power ever granted to the Trade Commission has been forfeited by nonuser. The Commission's organic Act, § 5, comprehensively provides substantive and procedural rules for checking unfair methods of competition. The procedure is complete from complaint and service of process through final order, court review, and enforcement proceedings to recover penalties which are not those here sued for. This entire subject of unfair competition, it is true, came into the bill late in its legislative history and dealt with a commercial evil quite different from the target of prior antitrust laws. It is to be noted, however, that although complete otherwise, this section confers no power to investigate this or any other matter. That power, without which all others would be vain, must be found in other sections of the Act. The Commission, for power to investigate compliance with a § 5 order, has turned to § 6, which authorizes it to require certain reports but is not expressly applicable to a § 5 case. Respondents say it might better have turned to § 9, which authorizes it to send investigators to examine their books, copy documents and issue subpoenas, and which is expressly applicable to § 5 proceedings. Section 6, on which the Commission relies, adds, among other things and with exceptions not material, the power to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, . . . and its relation to other corporations and to individuals, associations, and partnerships. It also authorizes the Commission to require, by general or special orders, corporations engaged in commerce. . . to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing. To one informed of no fact apart from this text, it would appear to grant ample power to order the reports here in question. Respondents are in the class subject to inquiry, the call is for what appears to be a special report and the matter to be reported would seem to be as to business conduct and practices about which the Commission is authorized to inquire. But respondents advance several arguments to persuade us that this seemingly comprehensive power is subject to limitations not evident in the text. Respondents derive from legislative history their contention that Congress divided the duties and powers of the Commission into two separate categories, one in § 6 merely re-enacting the old powers of investigation and publicity in antitrust matters—essentially a mere continuance of the former powers of the old Bureau of Corporations. The other was a new unfair-competition power, self-contained and sealed off in § 5. It is argued that the reports set forth in § 6 can be required only in support of general economic surveys and not in aid of enforcement proceedings under . . . section 5. While we find a good deal which would warrant our concluding that § 6 was framed with the pre-existing antitrust laws in mind, and in the expectation that the information procured would be chiefly useful in reports to the President, the Congress, or the Attorney General, we find nothing that would deny its use for any purpose within the duties of the Commission, including a § 5 proceeding. A construction of such an Act that would allow information to be obtained for only a part of a Commission's functions and would require the Commission to pursue the rest of its duties as if the information did not exist would be unusual, to say the least. The information was such as the Commission was authorized to obtain and we think it could be required for use in determining whether there had been proper compliance with the court's decree in a § 5 case. It is argued, however, and the court below has agreed, that the special report authorized by statute does not embrace the one here asked as to the method of compliance with the decree. We find nothing in the legislative history that would justify so limiting the meaning of special reports, or holding that the report here asked is not such a one. The very House Committee Report (H. R. Rep. No. 533, 63d Cong., 2d Sess.) which the court below thought sustained respondents' contention, we read in its context to support the Commission. Speaking of what became this section, the Report said, The commission, under this section, may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation in its annual reports does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary. Id., at p. 4. An annual report of a corporation is a recurrent and relatively standardized affair. The special report was used to enable the Commission to elicit any information beyond the ordinary date of a routine annual report. If the report asked here is not a special report, we would be hard put to define one. Nor does the fact that § 5 applies to individuals, partnerships, and corporations, while §§ 6 (b) and 10 apply only to corporations, lead us to conclude that the Act must not be read as an integrated whole. The argument that, because the reporting and penalty provisions of the latter extend only to corporations they must not be invoked to implement, as against corporations, a § 5 proceeding which contemplates action against persons and partnerships as well, would have force were there not sound reason for more drastic powers to compel disclosure from corporations than from natural persons. What the former may be compelled to disclose without objection the latter may withhold, or reveal only after exacting the price of immunity from prosecution. Corporations not only have no constitutional immunity from self-incrimination, but the disparity between artificial and natural persons is so significant that differing treatment can rarely be urged as an objection to a particular construction of a statute. Moreover, Congress may have considered that the volume or proportion of unincorporated business or the relatively small size of individually owned enterprises, or even a lesser capacity and disposition to resist made it possible to omit persons from duties and penalties imposed on artificial combinations of capital. We conclude that the authority of the Commission under § 6 to require special reports of corporations includes special reports of the manner in which they are complying with decrees enforcing § 5 cease and desist orders.",statutory authority to require reports.
+583,104758,1,4,"The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186. Although the right to be let alone—the most comprehensive of rights and the right most valued by civilized men, Brandeis, J., dissenting in Olmstead v. United States, 277 U. S. 438, 471, at 478, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U. S. 616, Hale v. Henkel, 201 U. S. 43, 70, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra ; United States v. White, 322 U. S. 694. While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm'n v. American Tobacco Co., 264 U. S. 298, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra . They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. Cf. Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232; Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210; Wickard v. Filburn, 317 U. S. 111, at 129. Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest. Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm'n v. American Tobacco Co., supra . But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 208. Nothing on the face of the Commission's order transgressed these bounds. Nor do we consider whether, for reasons peculiar to these cases not apparent on the face of the orders, these limits are transgressed. Such questions are not presented by the procedure followed by respondents. Before the courts will hold an order seeking information reports to be arbitrarily excessive, they may expect the supplicant to have made reasonable efforts before the Commission itself to obtain reasonable conditions. Neither respondent raised objection to the order's sweep, nor asked any modification, clarification or interpretation of it. Both challenged, instead, power to issue it. Their position was that the Commission had no more authority to issue a reasonable order than an unreasonable one. That, too, was the defense to this action in the court below. Of course, there are limits to what, in the name of reports, the Commission may demand. Just what these limits are we do not attempt to define in the abstract. But it is safe to say that they would stop the Commission considerably short of the extravagant example used by one of the respondents of what it fears if we sustain this order—that the Commission may require reports from automobile companies which include filing automobiles. In this case we doubt that we should read the order as respondents ask to require shipment of extensive files or gifts of expensive books. This is not a necessary reading certainly, and other parties to the decree seem to have been able to satisfy its requirements. If respondents had objected to the terms of the order, they would have presented or at least offered to present evidence concerning any records required and the cost of their books, matters which now rest on mere assertions in their briefs. The Commission would have had opportunity to disclaim any inadvertent excesses or to justify their demands in the record. We think these respondents could have obtained any reasonable modifications necessary, but, if not, at least could have made a record that would convince us of the measure of their grievance rather than ask us to assume it. It is argued that if we sustain this use of § 6, the power will be unconfined and its arbitrary exercise subject to no judicial review or control, unless and until the Government brings suit, as here, for penalties. The Government, it is said, may delay such action while ruinous penalties accumulate and defendant runs the risk that his defenses will not be sustained. However, we are not prepared to say that courts would be powerless if after an effort to clarify or modify such an order it still is considered to be so arbitrary as to be unlawful and the Government pursues a policy of accumulating penalties while avoiding a judicial test by refusing to bring action to recover them. Since we do not think this record presents the question, we do not undertake to determine whether the Declaratory Judgment Act, the Administrative Procedure Act, or general equitable powers of the courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order. Cf. Oklahoma Operating Co. v. Love, 252 U. S. 331. It is enough to say that, in upholding this order upon this record, we are not to be understood as holding such orders exempt from judicial examination or as extending a license to exact as reports what would not reasonably be comprehended within that term as used by Congress in the context of this Act. The judgment accordingly is Reversed. MR. JUSTICE DOUGLAS and MR. JUSTICE MINTON took no part in the consideration or decision of these cases.",rights under fourth and fifth amendments.
+584,88153,1,1,"Mr. Donahue, contra: 85 To make a loss or damage by stranding a subject of general average, the stranding must be voluntarily or purposely done. 86 The question then presented, as applied to the circumstances of the case at bar, is this: Is the accidental stranding of a vessel to be deemed a voluntary or intentional stranding within the meaning of the law, when it appears that the stranding was either directly or incidentally occasioned by the intentional exposure of the vessel to extraordinary perils, out of the usual course of navigation and of the ship's duties as a common carrier? 87 The principles established by different cases cited in the other side, such as Caze v. Reilly , 19 Columbian Insurance Company v. Ashby , 20 Sims v. Gurney , 21 Gray v. Waln , 22 seem to be 88 1. That the intention to consign to inevitable loss the objects (whether the goods or the ship) which are selected to bear the burden of the risk forms no element of the right to contribution. This principle is expressly declared by the Supreme Court in Barnard v. Adams , 23 and will not be denied in the present case. 89 2. It is also decided in these cases, that where a ship has been voluntarily stranded, the circumstance that she is thereby lost strengthens rather than destroys her claim for contribution against the cargo saved by the sacrifice. 90 3. That though the vessel may have been in the most imminent danger of being stranded by the force of the elements, yet, if the actual stranding is the immediate result of human agency, and is different from the one impending, and effected for the common safety, the case is one for general average. 91 But in all these cases the actual stranding as it occurred was intentional. The doubt arose from the fact that a stranding of some kind was imminent, if not inevitable, and that the volition of the master was exercised merely in the selection of a less dangerous part of the shore whereon to strand his ship. 92 But in the case at bar it was not part of the master's intention to strand the vessel. The stranding was not only involuntary but unexpected, except so far as he was aware that in attempting to run into an unknown harbor he incurred that risk, amongst others, and that it was the chief risk he encountered. That he voluntarily subjected the vessel and cargo to whatever risks such a course involved cannot be doubted, but it is equally clear that he did not voluntarily and intentionally strand his vessel, that is, that the stranding was not the immediate and direct result of an intention to effect that particular object. 93 It may be said that the whole deviation to a port of distress, and especially the entering this port, was a sacrifice for the common safety. But if an accidental damage of this kind is to be allowed in general average, because it occurred during a voluntary deviation, rendered necessary by a vis major , and therefore is the effect and consequence of a sacrifice for the common safety, the same principle would require that every loss incurred during such a deviation should be contributed for. 94 Every peril encountered during a deviation is encountered out of the usual course of navigation for the voyage, and might, in a certain sense, be said to be the consequence and effect of a sacrifice made for the common safety. Thus, if the damage consequent upon the voluntary exposure to the dangers of entering an unknown harbor be general average, by parity of reasoning losses arising from directing the ship to parts of the seas where the chances of collision are greatly increased, or to high latitudes, where the risks of damage from icebergs are enhanced, or to stormy and inhospitable coasts, where the damages of shipwreck might be far greater than if the regular and usual course of the voyage had been pursued, might also be contributed; for the practical results of the principle contended for would be, that in all cases of deviation all the interests would be bound to contribute, or would become the insurers against any accidental damage sustained by any one of them. 95 If it be said that the risk incurred in entering an unknown and unfrequented harbor was extraordinary, we answer: 96 1. That in the case supposed, and in many others, the risks incurred in consequence of a deviation may be quite as great and as much out of the usual course of navigation for the voyage as those incurred by the Star of Hope. 97 2. That it would be imparacticable for courts to make the determination of the right to contribution depend upon nice discriminations between different degrees of peril, or to attempt to decide in each case whether the carrier was or was not bound, by his contract, to expose his vessel to the precise degree of risk he encountered; and 98 3. That it is better to establish on such a subject a clear and well-defined rule, susceptible of general application, than to make the decision depend upon uncertain estimates of the degree of risk encountered, and thus give rise to many unfounded claims and to incessant litigation. 99 Independently of what precedes, which is in fact the argument of the court below, we submit that the ship should bear the loss, because by an express contract,—that namely of the charter-party,—the owner of the vessel expressly undertook to keep the vessel at his own expense in the condition in which she ought to be. The charter made no exception. 100 On the whole case the ship should bear the loss. 101 Reply: To the point, taken here for the first time, that the charter-party bound the owners to keep the ship staunch, well-fitted, &c., for the voyage, the answer is: That this covenant is no more than the law would imply without express words, and is subject to the understood exception of the perils of the seas. 24 102 Mr. Justice CLIFFORD delivered the opinion of the court. 103 These are appeals in admiralty, brought here by the claimants of the ship Star of Hope, from a decree of the Circuit Court, rendered on appeal from a decree of the District Court, in four suits in rem instituted against the ship in the latter court, three being for the non-performance of a contract of affreightment, and the other for services rendered, and liabilities and expenses incurred, as consignees of the vessel. Twelve other suits were also instituted against the ship by other shippers for the non-delivery of their respective shipments, in which no appeals were taken, as the amount in controversy in the several cases was less than two thousand dollars. 104 1. Reference to one of the libels for the non-performance of the affreightment contract will be sufficient, as they all contain substantially the same allegations. Take the first one, for example, which was filed by the charterers. They describe the intended voyage as one from the port of New York to the port of San Francisco; they also allege that the goods were shipped on board the vessel; that she sailed on the tenth of February, 1856, from the port of shipment; that on the eighteenth of April following, in entering or attempting to enter the port of San Antonio, she accidentally grounded or stranded upon a bank or shoal there situated; that she thereby received such injuries that she was obliged, in order that she might be able to continue the voyage, to put back to Montevideo for repairs; that the master, after the vessel arrived there, being without money, credit, or other means to execute the repairs, sold a valuable portion of the goods shipped by and belonging to the libellants, of the value of forty-four thousand seven hundred dollars, and with the proceeds thereof paid for the said repairs; that the repairs having been thus made the ship resumed her voyage, and arrived safely at her port of destination; that by reason of the sale of their goods the libellants lost the whole amount sold, and that the master and owners of the ship neglect and refuse to make restitution. 105 2. Prior to the filing of the answer the fifteen affreightment suits were consolidated, and leave was given to the claimants of the ship to file one general answer to all those libels, and also to file one general stipulation therein for costs and expenses. 106 Pursuant to that leave the claimants filed their answer, in which they allege that the injury and damage to the ship at the Bay of San Antonio were incurred by the master voluntarily and deliberately for the general safety, and especially for the safety of the cargo and the lives of those on board, and that consequently all loss and damage sustained by the ship at that bay, and all costs and expenses of the subsequent repairs, and all other necessary costs and expenses incurred while at Montevideo and in getting to sea again, together with the costs and expenses incurred for the wages and provisions of the master, officers, and crew, to the time when the ship resumed her voyage, are, of right and according to law, a subject of general average contribution, to be borne by the ship, her freight, and her cargo, and also by the owners thereof in their just proportions. They also allege that the goods of the libellants having been sold by necessity to execute the repairs, are, of right, to be included in the general average, together with all loss and damage to the libellants in consequence of the sale at the port of distress. 107 3. Brief reference must also be made to the libel filed by the consignees of the ship, as the fourth appeal under consideration is from that part of the decree relating to that suit. Annexed to the libel is a schedule setting forth the particular expenses and liabilities incurred for which the suit is brought, and the appellants, in response to that claim, allege, in the answer, that if any such disbursements were made, or any such expenses or liabilities were incurred, as is therein supposed, the same are a portion of the general average upon the ship, her freight, and cargo, to be borne by them all ratably, as alleged in the answer to the other libels. 108 Both parties consenting, the cause was referred to a commissioner to take and state an account and adjustment, upon the basis that the damage, loss, and expenses incurred by the ship are a subject of general average contribution, as contended by the claimants. Subsequent to that order, and before the hearing, the parties filed the agreed statement of facts set forth in the record. Although filed subsequent to the order of reference, still it is quite evident that it was drawn up and agreed to prior to the order, as one of the conditions of the order is that it shall not affect prejudicially the agreements of the parties as contained in the agreed statement. 109 Other evidence was introduced in addition to what is contained in the agreed statement, and the commissioner having heard the parties reported his conclusions in writing to the court, as directed in the order of reference. Exceptions to the report were duly taken by both parties, and they were again heard in support of the same; but the court being of the opinion that the damage, loss, and expenses incurred by the ship, as described in the answer and in the agreed statement, are not the proper subject of general average contribution, sustained the exceptions filed by the libellants, over ruled those filed by the claimants, and entered the decree set forth in the transcript. Appeal was taken by the claimants from that decree to the Circuit Court, where the decree of the District Court was in all things affirmed. Dissatisfied with the decree as affirmed, the claimants appealed to this court, and still insist that the damage, loss, and expenses incurred by the ship are the proper subject of general average between the ship, her cargo, and freight, as alleged in the answer, which is the principal question presented for decision. 110 4. Much less difficulty will attend the solution of the question than is usual in cases of this description, as all the facts material to be considered in deciding the case are set forth in the agreed statement signed by the counsel of the respective parties. 111 Part of the cargo was furnished by the charterers, but large quantities of goods were also shipped by the libellants in the other libels, numbered from two to fifteen inclusive, and the owners of the ship also, by the consent of the charterers, shipped two hundred and forty-four and a half tons of coal on their own account. They were not interested in the other shipments, nor is it necessary to describe the goods composing the residue of the cargo, except to say that among the merchandise shipped were five hundred casks and packages of spirituous liquors, and forty or fifty kegs of gunpowder, prepared as 'patent safety fuses,' and the agreed statement shows that the spirituous liquors were stowed next to the coal shipped by the owners. 112 With a full cargo on board, the ship sailed for her port of destination on the day alleged in the pleadings, and during the voyage, to wit, on the fourteenth of April following, it was discovered that great quantities of smoke and vapor were issuing from the fore and after hatches of the ship. She was proceeding on her voyage, at the time the discovery was made, in latitude forty-six degrees south, longitude fifty-three degrees west, but the weather was squally and the sea was rough. Precautions, such as are usual on such occasions, were immediately adopted: the hatches were fastened down, and 'everything made tight,' in order to check as much as possible the progress of the fire, at least until a port of succor could be reached. 113 Great alarm was felt, and the fears of all were much increased by the fact, well known to all, that the cargo contained prepared gunpowder and large quantities of spirituous liquors. Under the circumstances the crew refused to continue the voyage, and the master determined, very properly, as the parties agree, to make for the Bay of San Antonio, on the southeast coast of Patagonia, as the nearest anchorage, and at the end of four days the ship arrived off that bay, and set the usual signal for a pilot. 114 Throughout that period the signs of fire continued to increase, and in getting up the chains, so as to be ready to cast anchor without delay, they were found to be quite hot, and there were other indications of fire, which greatly heightened the general alarm. Unwilling to run into a bay, unknown to him, without a pilot, the master set his signal as aforesaid and waited three hours for one, but no one came, and it became evident that none could be expected, as the coast was wild and desolate. 115 Something must be done, as the alarm increased as the impending peril became more imminent. Haul off the master could not, as the wind and waves were against any such movement. He could not resume the voyage for the same reason, and also because the crew utterly refused their cooperation; nor could he with safety any longer attempt to 'lie to,' as the ship was gradually approaching the shore, and because she was exposed both to the impending peril of fire on board, and to the danger, scarcely less imminent, of shipwreck from the wind and waves. Nothing, therefore, remained for the master to do, which it was within his power to accomplish, but to run the vessel ashore, which it is agreed by the parties would have resulted in the 'certain and almost instant loss of vessel, cargo, and all on board,' or to make the attempt to run into the bay without the assistance of a pilot. Evidently he would have been faithless to every interest committed to his charge if he had attempted to beach the vessel at that time and place, as the agreed statement shows that the weather was rough, that the wind was high and blowing towards the land with a heavy sea, and that the shore was rocky and precipitous. 116 What the master did on the occasion is well described by the parties in the agreed statement, in which they say he at length determined, as the best thing to be done for the general safety, and especially for the preservation of the cargo and the lives of those on board, to make the attempt to run in without a pilot, preferring all risks to be thereby incurred rather than to remain outside in the momentary apprehension of destruction to all, and the parties agree that he was fully justified in his decision as tested by all the circumstances, although the ship in attempting to enter the bay grounded on a reef, and before she could be got to sea again sprung aleak and sustained very serious injuries in her bottom. 117 Great success, however, attended the movement, notwithstanding those injuries, as the water taken in by the ship extinguished the fire, and the ship remained fast and secure from shipwreck until the winds subsided and the sea became calm. 118 Repairs could not be made at that place, and the parties agree that the injuries to the ship were such as fully justified the master in returning to Montevideo for that purpose, as that was the nearest port where the repairs could be made. He arrived there on the twenty-seventh of the same month, and it appears by the agreed statement that the just and necessary expenses incurred by the ship at that port to enable her to resume the voyage were one hundred thousand dollars, including repairs, unloading, warehousing, and reloading of the cargo, and that the master, being without funds or credit, was obliged to sell a considerable portion of the cargo to defray those expenses. 119 Repaired and rendered seaworthy by those means the ship, on the eleventh of September, in the same year, resumed her voyage and arrived at her port of destination on the seventh of December following, and the master, without unnecessary delay, delivered the residue of the shipments in good order to the respective consignees, as required by the contract of affreightment. 120 5. General average contribution is defined to be a contribution by all the parties in a sea adventure to make good the loss sustained by one of their number on account of sacrifices voluntarily made of part of the ship or cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more of the parties for the general benefit of all the interests embarked in the enterprise. Losses which give a claim to general average are usually divided into two great classes: (1.) Those which arise from sacrifices of part of the ship or part of the cargo, purposely made in order to save the whole adventure from perishing. (2.) Those which arise out of extraordinary expenses incurred for the joint benefit of ship and cargo. 25 121 Common justice dictates that where two or more parties are engaged in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice to avoid the impending danger or incurs extraordinary expenses to promote the general safety, the loss or expenses so incurred shall be assessed upon all in proportion to the share of each in the adventure. 26 122 Where expenses are incurred or sacrifices made on account of the ship, freight, and cargo, by the owner of either, the owners of the other interests are bound to make contribution in the proportion of the value of their several interests, but in order to constitute a basis for such a claim it must appear that the expenses or sacrifices were occasioned by an apparently imminent peril; that they were of an extraordinary character; that they were voluntarily made with a view to the general safety; and that they accomplished or aided at least in the accomplishment of that purpose. 27 123 Authorities may be found which attempt to qualify this rule, and assert that where the situation of the ship was such that the whole adventure would certainly and unavoidably have been lost if the sacrifice in question had not been made, the party making it cannot claim to be compensated by the other interests, because it is said that a thing cannot be regarded as having been sacrificed which had already ceased to have any value, but the correctness of the position cannot be admitted unless it appears that the thing itself for which contribution is claimed was so situated that it could not possibly have been saved, and that its sacrifice did not contribute to the safety of the crew, ship, or cargo. Sacrifices, where there is no peril, present no claim for contribution, but the greater and more imminent the peril the more meritorious the claim for such contribution, if the sacrifice was voluntary and contributed to save the associated interests from the impending danger to which the same were exposed. 28 124 Such claims have their foundation in equity, and rest upon the doctrine that whatever is sacrificed for the common benefit of the associated interests shall be made good by all the interests which were exposed to the common peril and which were saved from the common danger by the sacrifice. Much is deferred in such an emergency to the judgment and decision of the master; but the authorities, everywhere, agree that three things must concur in order to constitute a valid claim for general average contribution: First, there must be a common danger to which the ship, cargo, and crew were all exposed, and that danger must be imminent and apparently inevitable, except by incurring a loss of a portion of the associated interests to save the remainder. Secondly, there must be the voluntary sacrifice of a part for the benefit of the whole, as for example a voluntary jettison or casting away of some portion of the associated interests for the purpose of avoiding the common peril, or a voluntary transfer of the common peril from the whole to a particular portion of those interests. Thirdly, the attempt so made to avoid the common peril to which all those interests were exposed must be to some practical extent successful, for if nothing is saved there cannot be any such contribution in any case. 29 125 Equity requires, says Emerigon, that in these cases those whose effects have been preserved by the loss of the merchandise of others shall contribute to this damage, and commercial policy as well as equity favors the principle of contribution, as it encourages the owner, if present, to consent that his property, or some portion of it, may be cast away or exposed to peculiar and special danger to save the associated interests and the lives of those on board from impending destruction; and if not present, the moral tendency of the well-known commercial usage is to induce the master to exercise an independent judgment in the emergency for the benefit of all concerned. 30 126 Masters are often compelled, in the performance of their duties, to choose between the probable consequences of imminent perils threatening the loss of the ship, cargo, and all on board, and a sacrifice of some portion of the associated interests in their custody and under their control, as the only means of averting the dangers of the impending peril in their power to employ. The must elect in such an emergency, and if they, in the exercise of their best skill and judgment, decide that it is their duty to lighten the ship, cut away the masts, or to strand the vessel, courts of justice are not inclined to overrule their determinations. 127 Owners of vessels are under obligation to employ masters of reasonable skill and judgment in the performance of their duties, but they do not contract that they shall possess such qualities in an extraordinary degree, nor that they shall do in any given emergency what, after the event, others may think would have been best. From the necessity of the case the law imposes upon the master the duty, and clothes him with the power, to judge and determine, at the time, whether the circumstances of danger in such a case are or are not so great and pressing as to render a sacrifice of a portion of the associated interests indispensable for the common safety of the remainder. Standing upon the deck of the vessel, with a full knowledge of her strength and condition, and of the state of the elements which threaten a common destruction, he can best decide in the emergency what the necessities of the moment require to save the lives of those on board and the property intrusted to his care, and if he is a competent master, if an emergency actually existed calling for a decision whether such sacrifice was required, and if he appears to have arrived at his conclusion with due deliberation, by a fair exercise of his own skill and judgment, with no unreasonable timidity, and with an honest intent to do his duty, it must be presumed, in the absence of proof to the contrary, that his decision was wisely and properly made. 31 128 Controversies respecting the allowance or adjustment of general average more frequently arise in cases where the sacrifice made consisted of a jettison of a portion of the cargo than in respect to any other disaster in navigation. 32 129 Explanations and illustrations upon the subject, therefore, whether found in treatises or in judicial decisions, are usually more particularly applicable to cases of that description than to a case where the vessel was stranded, but the leading principles of law by which the rights of parties are to be ascertained and determined in such cases are the same whether the sacrifice made consisted of a part of the cargo or of a part or the whole of the ship, as the controlling rule is, that what is given for the general benefit of all shall be made good by the contribution of all, which is the germ and substance of all the law upon the subject. 130 Doubts at one time were entertained whether a loss occasioned by a voluntary stranding of the vessel, even though it was made for the general safety, and to avoid the probable consequences of an imminent peril to the whole adventure, was the proper subject of general average contribution, but those doubts have long since been dissipated in most jurisdictions, and they have no place whatever in the jurisprudence of the United States. 131 Where the ship is voluntarily run ashore to avoid capture, foundering, or shipwreck, and she is afterwards recovered so as to be able to perform her voyage, the loss resulting from the stranding, says Mr. Arnould, is to be made good by general average contribution, and the writer adds that there is no rule more clearly established than this by the uniform course of maritime law and usage. 33 132 Sustained as that proposition is at the present day by universal consent, it does not seem to be necessary to refer to other authorities in its support, nor is it necessary to enlarge that rule in order to dispose of the present controversy, but to prevent any misconception as to the views of the court it is deemed proper to add that it is settled law in this court that the case is one for general average, although the ship was totally lost, if the stranding was voluntary and was designed for the common safety, and it appears that the act of stranding resulted in saving the cargo. 34 133 Undoubtedly the sacrifice must be voluntary and must have been intended as a means of saving the remaining property of the adventure, and the lives of those on board, and unless such was the purpose of the act it gives no claim for contribution, but it is not necessary that there should have been any intention to destroy the thing or things cast away, as no such intention is ever supposed to exist. On the contrary it is sufficient that the property was selected to suffer the common peril in the place of the whole of the associated interests, that the remainder might be saved. 35 134 6. Suggestion is made that the act of stranding of the vessel in this case was not a voluntary act, as the reef where she grounded was not visible at the time and was unknown to the master, but the agreed statement shows that in undertaking to run into the bay the master knew that the chief risk he had to encounter was the stranding of the ship, and the precautions which he took to guard against that danger show to the entire satisfaction of the court that the disaster was not altogether unexpected. As the ship advanced the lead was constantly employed, showing eight fathoms at first, then seven, then six only, and so on, the depth continuing to diminish at each throw of the lead until the ship grounded and remained fast. 135 Grant that the master did not intend that the ship should ground on that reef, still it is clear that he was aware that such a danger was the chief one he had to encounter in entering the bay, and the case shows that he deliberately elected and decided to take that hazard rather than to remain outside, where, in his judgment, the whole interests under his control, and the lives of all on board were exposed to imminent peril if not to certain destruction. Under these circumstances it is not possible to decide that the will of man did not in some degree contribute to the stranding of the ship, which is all that is required to constitute the stranding a voluntary act within the meaning of the commercial law. 36 136 Suppose the storm outside the bay was irresistible and overpowering, still it does not follow that there was no exercise of judgment, for there may be a choice of perils when there is no possibility of perfect safety. 37 137 Destruction of all the interests was apparently certain if the ship remained outside, but the master under the circumstances elected to enter the bay, without the assistance of a pilot, knowing that there was great danger that the ship might ground in the attempt, but his decision was, that it was better for all concerned to make the attempt than to remain where he was, even if she did ground, and the result shows that he decided wisely for all interests, as damage resulted to none except to the ship, and she would doubtless have been destroyed if she had continued to remain outside of the bay. 38 138 Guided by these considerations our conclusion is, that the loss and damage sustained by the ship at the place of the disaster, and the costs and expenses of the rapairs, and all the other costs and expenses as charged in the adjustment, are the proper subject of general average contribution, as alleged by the claimants in their answer. 139 Details will be avoided, as the decree must be reversed and the cause remanded for further proceedings. 140 7. Apart from the error in the principle of the decree there is a manifest error in the amount allowed in the first case, but inasmuch as there must be a new hearing and a new decree, the correction of the error can best be made in the Circuit Court. 141 Brief consideration must also be given to the exceptions, taken by the claimants, to the report of the commissioner, which were overruled by the court. They are three in number, and they will be considered in the order in which they were made. 142 i. That the commissioner erred in charging the ship or freight with any part of the expenses incurred by the charterers in the ex parte adjustment procured by them prior to the order of reference to the commissioner. 143 Unusual difficulty attends the inquiry, on account of the indefinite character of the exception and the uncertain state of the evidence, but the conclusion of the court being that the case is one for general average, it seems to the court that those expenses constitute a matter to be adjusted between the charterers and the libellants irrespective of the controversy presented in this record, unless the results of that adjustment were adopted and used by the commissioner. Influenced by these suggestions the exception is sustained, but the matter is left open for further inquiry when the mandate is sent down. 144 ii. That the commissioner erred in assuming that the valuation of the ship as given in the policy of insurance is the proper basis of her contributory value in the statement of the amount for general average. 145 As a general rule, the value of the ship for contribution, where she was received no extraordinary injuries during the voyage, and has not been repaired on that account, is her value at the time of her arrival at the termination of the voyage, but if she met with damage before she arrived, by perils of the sea, and had been repaired, then the value to be assumed in the adjustment is her worth before such repairs were made. Neither party gave any evidence as to the value of the ship prior to the disaster except what appears in the policy of insurance, and under the circumstances it is difficult to see what better rule can be prescribed than that adopted by the commissioner. 39 146 Strictly speaking the rule is the value of the ship antecedent to the injuries received, but as that requirement can seldom be met the usual resort is her value at the port of departure, making such deduction for deterioration as appears to be just and reasonable. 40 147 No proofs on that subject, except the policy of insurance, was offered by either party, and inasmuch as ships are seldom insured beyond their actual value the exception is overruled. 148 iii. That the commissioner erred in carrying into particular average certain expenses incurred by the master at the port where the repairs were made, which should have been regarded as the proper subject of general average. 149 Considerable difficulty also attends this inquiry for the want of a more definite statement of the grounds of the complaint. We think it plain, however, that the exception must be sustained, as some of the matters charged as particular average, in whole or in part, ought clearly to have been included at their full value among the incidental expenses necessarily incurred in making the repairs, but in view of the circumstances we shall not attempt to do more than to state the general principles which should regulate the adjustment in the particulars involved in the exception, and leave their application to be made in the case by the court below, where the parties, if need be, may again be heard. 150 8. Whatever the nature of the injury to the ship may be, and whether it arose from the act of the master in voluntarily sacrificing a part of it or in voluntarily standing the vessel, the wages and provisions of the master, officers, and crew from the time of putting away for the port of succor, and every expense necessarily incurred during the detention for the benefit of all concerned, are general average. 41 151 Repairs necessary to remove the inability of the ship to proceed on her voyage are now regarded everywhere as the proper subject of general average. Expenses for repairs beyond what is reasonable necessary for that purpose are not so regarded, but it is not necessary to examine the exceptions to the rule with any particularity in this case, as the parties agree that all the expenses incurred were necessary to enable the ship to resume her voyage. 152 The wages and provisions of the master, officers, and crew are general average from the time the disaster occurs until the ship resumes her voyage, if proper diligence is employed in making the repairs. 42 153 Towing the ship into port, and extra expenses necessarily incurred in pumping to keep her afloat until the leaks can be stopped, are to be included in the adjustment. 43 154 Surveys, port charges, the hire of anchors, cables, boats, and other necessary apparatus, for temporary purposes in making the repairs, are all to be taken into the account as well as the expenses of unloading, warehousing, and reloading the cargo after the repairs are completed. 44 155 Repairs in such a case cannot be made by the master unless he has means or credit, and if he has neither, and his situation is such that he cannot communicate with the owners, he may sell a part of the cargo for that purpose if it is necessary for him to do so in order to raise the means to make the repairs. Sacrifices made to raise such means are the subject of general average, and the rule is the same whether the sacrifice was made by a sale of a part of the cargo or by the payment of marine interest. 45 156 Governed by these rules it is believed the rights of the parties may be adjusted without serious difficulty or danger of mistake. 157 DECREE REVERSED in respect to each of the four cases before the court.",[The counsel then directed his argument to the exceptions to the commissioner's report.]
+585,89962,1,1,"In one sense, a railroad is never completed. There is never, or hardly ever, a time when something more cannot be done, and is not done, to render the most perfect road more complete than it was before. This fact is well exemplified by the history of the early railroads of the country. At first, many of them were constructed with a flat rail, or iron bar, laid on wooden string-pieces, resulting in what was known, in former times, as snake-heads — the bars becoming loose, and curving up in such a manner as to be caught by the cars, and forced through the floors amongst the passengers. Then came the T rail; and finally the H rail, which itself passed through many successive improvements. Finally, steel rails in the place of iron rails have been adopted as the most perfect, durable, safe, and economical rails on extensive lines of road. Bridges were first made of wood, then of stone, then of stone and iron. Grades originally crossed, and, in most cases, do still cross, highways and other roads on the same level. The most improved plan is to have them, by means of bridges, pass over, or under, intersecting roads. A single track is all that is deemed necessary to begin with; but now, no railroad of any pretensions is considered perfect until it has at least a double track. Depots and station-houses are at first mere sheds, which are deemed sufficient to answer the purpose of business. These are succeeded, as the means of the company admit, by commodious station and freight houses, of permanent and ornamental structure. And so the process of improvement goes on; so that it is often a nice question to determine what is meant by a complete, first-class railroad; and if a question of right or obligation between parties depends upon the completion of such a structure, courts are obliged to spell out, from the circumstances of the case, and the language and acts of the parties, what they mean when they use such terms. In the present case, we have for our guidance several clauses in the charter of the Union Pacific Railroad Company (the act of 1862), in which the terms referred to are used, as well as the acts of the parties in reference thereto. One of these clauses is in the fourth section of the act, which contains an engagement on the part of the government to grant certain sections of land to the company on the completion of a certain number of miles of its road. The third section having granted to the company every alternate section of the public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of the railroad, on the line thereof, and within the limits of ten miles, not otherwise disposed of by the United States, the fourth section proceeds as follows: — SECT. 4. That whenever said company shall have completed forty consecutive miles of any portion of said railroad and telegraph line, ready for the service contemplated by this act, and supplied with all necessary drains, culverts, viaducts, crossings, sidings, bridges, turnouts, watering-places, depots, equipments, furniture, and all other appurtenances of a first-class railroad, the rails and all the other iron used in the construction and equipment of said road to be American manufacture of the best quality, the President of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue conveying the right and title to said lands to said company, on each side of the road as far as the same is completed, to the amount aforesaid; and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners... . Provided, however, that no such commissioners shall be appointed by the President of the United States unless there shall be presented to him a statement, verified on oath by the president of said company, that such forty miles have been completed in the manner required by this act, and setting forth with certainty the points where such forty miles begin and where the same end, which oath shall be taken before a judge of a court of record. By the act of 1864 (13 Stat. 356), the amount and extent of the grant is doubled. Again, by the fifth section of the act of 1862 it is enacted as follows: — SECT. 5. That, for the purposes herein mentioned, the Secretary of the Treasury shall, upon the certificate in writing of said commissioners of the completion and equipment of forty consecutive miles of said railroad and telegraph, in accordance with the provisions of this act, issue to said company bonds of the United States of $1,000 each, payable in thirty years after date, bearing six per centum per annum interest, ... to the amount of sixteen of said bonds per mile for each section of forty miles, and to secure the repayment to the United States, as hereinafter provided, of the amount of said bonds so issued and delivered to said company, together with all interest thereon which shall have been paid by the United States, the issue of said bonds and delivery to the company shall ipso facto constitute a first mortgage on the whole line of the railroad and telegraph, together with the rolling-stock, fixtures, and property of every kind and description, and in consideration of which said bonds may be issued. By the eleventh section the amount of bonds granted was to be $48,000 per mile for one hundred and fifty miles through the Rocky Mountains, and for the same distance including the Sierra Nevada Mountains, and $32,000 per mile between those points; and by the act of 1864 the completed sections were reduced to twenty miles instead of forty. By the sixth section of the act it is further enacted as follows: — SECT. 6. That the grants aforesaid are made upon condition that said company shall pay said bonds at maturity, and shall keep said railroad and telegraph line in repair and use, and shall at all times transmit despatches over said telegraph line, and transport mails, troops and munitions of war, supplies and public stores, upon said railroad for the government whenever required to do so by any department thereof, and that the government shall at all times have the preference in the use of the same for all the purposes aforesaid (at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service), and all compensation for services rendered for the government shall be applied to the payment of said bonds and interest until the whole amount is fully paid. Said company may also pay the United States, wholly or in part, in the same or other bonds, treasury notes, or other evidences of debt against the United States, to be allowed at par, and after said road is completed, until said bonds and interest are paid, at least five per centum of the net earnings of said road shall also be annually applied to the payment thereof. Reading these sections together, it seems hardly possible to conceive that the word completed, in the last clause of the sixth section, has any other or different meaning from that which it has in the fourth and fifth sections; or that the five per cent of the net earnings should not be demandable by the government as soon as the whole line was completed in the same manner in which any forty [or twenty] miles was to be completed in order to entitle the company to bonds. This conclusion is so obvious and self-evident that it hardly needs a word of argument to maintain it. Now, the findings of fact show that the company began to claim the subsidy of lands and bonds for completed sections of the railroad and telegraph line in June, 1866; and from that time forward made similar successive applications nearly or quite every month, tendering the affidavit of the president of the company as to the completion of the several sections, as required by the act. The first of these affidavits was made on the 25th of June, 1866, and was in the words following: — John A. Dix, being duly sworn, deposeth and saith, that he is president of the Union Pacific Railroad Company, and in pursuance of the requirements of sect. 4 of the act of Congress approved July 1, 1862, entitled `An Act to aid in the construction of the railroad and telegraph line from the Missouri River to the Pacific Ocean,' &c., he now states, under oath, that one hundred and five consecutive miles of said railroad, beginning at Omaha and ending at a point one hundred and five miles westward thereof, on the line designated by the maps of said company on file in the Department of the Interior, have been completed and equipped in all respects as required by the act referred to, as he is informed by the engineer charged with the construction of said line, and as he verily believes to be true; and he further states, under oath, that one hundred and five miles of telegraph have been completed for the said one hundred and five consecutive miles, as he is also advised by the engineer in charge. JOHN A. DIX, President. Sworn to, June 25, 1866. The last affidavit, relating to the completion of the last section of the road (and indeed extending some fifty miles beyond the point of division finally agreed upon between the Union and Central Pacific Railroad Companies), was made on the 13th of May, 1869, and was in the words following: — Oliver Ames, being duly sworn, deposeth and saith that he is president of the Union Pacific Railroad. And in pursuance of the requirements of sect. 4 of the act of Congress approved July 1, 1862, entitled `An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean,' &c., he now states, under oath, that another section of eighty-six miles, commencing at 1,000 mile and ending at 1,086 mile-post, was completed on the tenth day of May, 1869, making in all 1,086 consecutive miles of said road, beginning at the initial point on section 10, opposite western boundary of the State of Iowa, as fixed by the President of the United States, and ending at a point 1,086 miles westward therefrom on the line designated by the maps of said company on file in the Department of the Interior, that have been completed and equipped in all respects as required by the act referred to, as he is informed by the engineer charged with the construction of said line, and as he verily believes to be true. And he further states, under oath, that 1,086 miles of telegraph have been completed for the said 1,086 consecutive miles, as he is also advised by the engineer in charge. OLIVER AMES, President Union Pacific Railroad Company. Sworn to, May 13, 1869. The Court of Claims finds as a matter of fact that on the 10th of May, 1869, the last rail of the claimant's road was laid, and about a week afterwards the road was opened over the entire length to public use for the transportation of passengers and freight, and for the service of the government; and this service was from that time forward performed continuously. It further found that on the 23d of December, 1865, the President of the United States, under the authority of sect. 4 of the said act of July 1, 1862, appointed commissioners to examine and report upon the first section of forty miles of said road; and some time prior to April 30, 1866, he appointed other commissioners to examine and report upon the second section of twenty-five miles of said road; and after the making of each of the foregoing affidavits, he appointed other commissioners to examine the sections of the road as successively completed, and report to him in relation thereto. The reports of the commissioners so appointed were made in the first instance to the Secretary of the Interior, who transmitted them to the President, who approved the recommendations of the Secretary of the Interior by writing his approval thereon. The following is the first letter of the said secretary, with the President's indorsement thereon: — DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C., Jan. 24, 1866. SIR, — I have the honor to submit herewith enclosed, for your action, the report of the commissioners appointed by you on the 23d December, 1865, to examine the first section of forty miles of the Union Pacific Railroad, extending west from the city of Omaha, Territory of Nebraska. The company authorized to build this road having, as shown in the report of the commissioners, obligated itself to remedy, within a reasonable time, the deficiencies in the construction of said section, I respectfully recommend that the same be accepted, and proper steps be ordered for the issue of the bonds and land-grants due the company agreeably to law. I am, sir, with much respect, your obedient servant, JAS. HARLAN, Secretary. THE PRESIDENT. EXECUTIVE MANSION, Jan. 24, 1866. The within recommendations of the Secretary of the Interior are approved, and the Secretary of the Treasury and himself are hereby directed to carry the same into effect. ANDREW JOHNSON. Similar reports were made by the Secretary of the Interior, as the successive sections were completed and reported on by the commissioners, down to and including the ninth day of February, 1869, and were severally approved by the President; and the company received the subsidy bonds of the government in accordance therewith. As it appeared by the reports of some of the commissioners that the several sections of road were not, and could not, under the circumstances be, fully completed up to the ultimate standard of a first-class railroad, though they might be, and actually were, completed, section by section, so as to admit of transportation and travel over the same, the railroad company, on the 12th of February, 1869, being thereto required by the Attorney-General of the United States, as a guaranty for the ultimate full completion and equipment of the road, executed an agreement of the last-mentioned date to deposit in the Treasury Department their own first-mortgage bonds (which by the act of July 2, 1864, they had been authorized to issue, and which were to be preferred to the lien of the United States) to the amount of $3,000,000, to be held by the government as security for the completion of the road according to the provisions of the statutes in that behalf, and until the President, on a proper examination of the same, should be satisfied that it was so completed. At the same time, the company also agreed, by way of further security, to leave their land-grants with the government, without taking out patents for the same, until the President should be satisfied as aforesaid, — or pro tanto to such extent as he might not be satisfied. On the 10th of April, 1869, a joint resolution was passed by Congress, by which, amongst other things, it was declared that the common terminus of the Union Pacific and the Central Pacific railroads should be at or near Ogden. And that the President was thereby authorized to appoint a board of eminent citizens, not exceeding five in number, to examine and report upon the condition of the two roads (the Union Pacific and the Central Pacific), and what sum, if any, would be required to complete each of them. And the President was further authorized and required to withhold from them an amount of subsidy bonds sufficient to secure the full completion of the roads as first-class roads, or to receive an equal amount of the first-mortgage bonds of the companies. A board of five eminent citizens was appointed under this resolution in the month of August following. In the mean time, two additional reports were made by the Secretary of the Interior to the President, one on the 27th of May, 1869, and the other on the 15th of July, 1869, in each case recommending the acceptance of the sections referred to therein, and also recommending the issue of bonds therefor, in accordance with the agreement aforesaid, to the effect that the company should deposit its first-mortgage bonds with the Secretary of the Treasury to such amount as might be deemed necessary to secure the ultimate completion of the road. The last of these reports, with the President's indorsement thereon, is in the words following, to wit: — DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C., July 15, 1869. Sir, — I have the honor to transmit herewith, for your action, five reports, dated the 9th ultimo, of the commissioners, Messrs. Gouverneur K. Warren and James F. Wilson; also the report of Isaac N. Morris, the other commissioner, dated May 28, 1869, appointed by you to examine and report upon a section of 85 88/100 miles of the road and telegraph line, constructed by the Union Pacific Railroad Company, commencing on the road of said company at the 1,000th mile-post west from Omaha and terminating at the 1,085 88/100 mile-post. The majority of said commissioners, in their report, represent the said section of 85 88/100 miles ready for present service, and completed and equipped as a first-class railroad, and that the telegraph line is completed for the same distance; and as the company have paid the per diem and mileage due them under the twenty-first section of the act of Congress approved July 27, 1866, on account of their examination of said section of road and telegraph line, I therefore respectfully recommend the acceptance of the same and the issue of bonds and of patents for land due on account of said section, agreeably to the act approved July 1, 1862, entitled `An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes,' and the acts amendatory thereof. Said bonds and patents to be issued to the Union Pacific Railroad Company on account of the work from said 1,000th mile-post to the `common terminus of the Union Pacific and Central Pacific Railroads,' `at or near Ogden;' and the bonds and patents on account of said work from said common terminus to Promontory Summit to be issued to such company as the proper authority, after full investigation of the respective claims of the Union Pacific Railroad Company and the Central Pacific Railroad Company of California shall determine to be thereunto lawfully entitled: Provided, however, that no bonds or patents shall in any event be issued until such security shall be deposited with the Secretary of the Treasury necessary to secure the ultimate completion of the road, agreeably to the acts mentioned in my letter to you of the 27th of May last. I am, sir, very respectfully, your obedient servant, J.D. Cox, Secretary. THE PRESIDENT. EXECUTIVE MANSION, July 15, 1869. The within recommendations of the Secretary of the Interior are approved, and the Secretary of the Treasury and himself are hereby directed to carry the same into effect. U.S. GRANT. It is found by the Court of Claims that on the 22d of July, 1869, in partial performance of this last order of the President, $640,000 of subsidy bonds were issued to the company, being the subsidy for the section of twenty miles extending from the 1,000th to the 1,020th mile from Omaha, the subsidy bonds on all the previous sections having been received by the company before that time. As before stated, in August, 1869, the President, in accordance with the joint resolution of April 10, 1869, appointed a board of five eminent citizens, to examine and report upon the condition of the road, and what sum would be required to complete it as a first-class railroad. This board made a detailed examination, and on the 30th of October, 1869, made an elaborate report, specifying a number of particular things at various points, such as ballasting, embankment, masonry, trestle-work, &c., which required perfecting to put the road in first-class condition; estimating the aggregate expense of such improvements on the whole line from Omaha to Ogden at $1,586,100. They conclude their report as follows: This great line, the value of which to the country is inestimable, and in which every citizen should feel a pride, has been built in about half the time allowed by Congress, and is now a good and reliable means of communication between Omaha and Sacramento, well equipped, and fully prepared to carry passengers and freight with safety and despatch, comparing in this respect favorably with a majority of the first-class roads in the United States. This report being made and accepted, on the 3d of November, 1869, the Secretary of the Interior issued directions to the Commissioner of the General Land-Office to commence patenting lands to the companies, and to issue patents for one half of the lands which they were to receive, — the patents for the other half to be suspended until further directions, in addition to the bonds retained, as security for the completion of the roads in the matters reported deficient or not up to the standard by the said committee. Up to the 6th of November, 1869, the point at which the Union Pacific and Central Pacific roads should meet was not settled; but assuming that the former would go no further west than Ogden, 1,033 68/100 miles from Omaha, the Secretary of the Treasury on that day ordered that bonds at the rate of $32,000 per mile for the distance of 13 68/100 miles from the 1,020th mile-post to Ogden should be issued, but ordered that the register of the treasury should hold $323,488 thereof as security for the over-issue of first-mortgage bonds by the company, and deliver the balance to it. The reason of withholding these bonds was, that the company, having been authorized by the act of July 2, 1864, supplementary to its charter, to issue the same amount of first-mortgage bonds as it was entitled to receive from the government, and which was accorded a priority over the lien of the government bonds, and having actually constructed the road fifty-three miles west of Ogden, had issued a larger amount of its own bonds than the amount of subsidy to which it was entitled as the point of division between its road and that of the Central Pacific was finally settled. By a subsequent arrangement with the Central Pacific Railroad Company, the point of junction between the two roads was fixed at a point five miles west of Ogden, which entitled the Union Pacific Company to bonds for such five additional miles, amounting to $160,000, which it received in July, 1870, making the total amount of subsidy bonds which it was entitled to, and did receive, the sum of $27,235,760. It thus appears that prior to the sixth day of November, 1869, the entire road of the company had, in separate sections, been reported by it, under the oath of its president, as being completed and furnished as a first-class railroad, in accordance with the requirements of the act, and that upon the strength of these representations, and the corresponding reports of the commissioners appointed to examine the several sections, it had been accepted by the President; and that the company, with the exception of the last $160,000 of bonds, the claim to which arose from a mutual arrangement between the two companies, had received its entire subsidy of government bonds; and had received an order for the issuing of patents for its grant of public lands to the extent of one half thereof; the patents for the other half being suspended, by virtue of the agreement made in April, 1869, as security for the more perfect completion of certain parts of the work. It is urged that the acceptance of the road by the President up to this period was only provisional, and not final. We cannot perceive that this makes any difference. It was an acceptance by which the company was enabled to receive its subsidy of government bonds; and was sought by it in order that it might obtain them. It seems to us unnecessary to look further, or to review the subsequent proceedings which took place between the President and the company, in reference to the fulfilment of the conditions by the latter, on which the issue of the patents for the remaining lands depended. It appears that another commission was appointed to examine the road in 1874, and that, on their report, the President was satisfied that all the imperfections, as a security for the removal of which any patents had been suspended, were removed. The company insists that this was the period which should be taken for the completion of the road in reference to the payment of five per cent of its net earnings, — a period five years after it had reported the last section completed according to the act of Congress, and after the President, by virtue of the agreement aforesaid, had consented to accept it as completed for the purpose of enabling the company to draw its subsidy of government bonds, and after it had received said bonds. Can a stronger case of estoppel than this well be presented? The plea that the government still retained a portion of the public lands which the company was to receive, as security for the supply of certain deficiencies in the road, cannot avail to diminish the strength of the estoppel. This was done by the voluntary agreement of the company itself. And as, by making this concession, it succeeded in obtaining the formal acceptance of its road for the sake of the benefit to accrue therefrom, to wit, the procurement of the subsidy bonds, the company ought to be willing to bear the burden of such acceptance, to wit, the payment annually of five per cent of the net earnings of the road on account of the bonds. It would be an unfair construction of the acts of the parties under the law, to hold that the road was completed for one purpose and not for the other. We think, therefore, that the Court of Claims was right in deciding that the road was completed on the sixth day of November, 1869, so far as the duty of the company to account for five per cent of its net earnings is concerned. II. The question next arising is, What are the net earnings for five per cent of which the company became liable to account, and in what manner are they payable? In the first place, they are the net earnings of the road; that is, the net earnings of the road as a railroad, including the telegraph. They have nothing to do with the income or profits of the company as a holder of public lands. The proceeds of this source of income are no part of the earnings of the road. These earnings, however, must be regarded as embracing all the earnings and income derived by the company from the railroad proper, and all the appendages and appurtenances thereof, including its ferry and bridge at Omaha, its cars, and all its property and apparatus legitimately connected with its railroad. In the present case, but little difficulty is presented in determining what are the proper earnings of the road, except in one particular. The company insists that the compensation accruing to it for services performed for the government, under the sixth section of the act of 1862, should not be estimated amongst the earnings of the road, in taking an account of net earnings upon which to calculate the five per cent in question. That compensation is not receivable by the company, — does not come into its hands, — at least was not receivable by it according to the act of 1862, but was directed by the sixth section to be applied to the payment of the subsidy bonds. After giving this direction, the section proceeds to add, that after the road is completed, until said bonds and interest are paid, five per centum of the net earnings of said road shall also be annually applied to the payment thereof. It is contended that the net earnings here referred to are intended to be exclusive of said compensation for government service, no part of which the company was to receive. It must be admitted that there is some force in this view. But the majority of the court is of opinion that the plain letter of the statute cannot be thus varied by construction. The compensation accruing by means of services performed for the government is unquestionably earnings of the road and telegraph; and as there are no words in the act which go to show any intention to except this portion of earnings from the other earnings of the road in estimating the amount of net earnings, the conclusion arrived at is, that no such exception can be made. The fact that by a subsequent law the company is allowed to receive in money one-half of the compensation referred to, removes to a great extent the practical difficulties that have been suggested in this behalf. There is another item in the table of earnings set forth in the eighteenth finding of the Court of Claims which may require consideration. We refer to the seventh item, entitled company freight. If this means freight for the transportation of the company's own property over its own road, it ought not to be put down as a receipt, unless the same amount is also embraced amongst the expenses on the other side of the account. How this fact may be we have not before us the means of knowing. The evidence which the Court of Claims has in its possession will enable it to determine this matter. We merely decide that if the item appears only as a receipt or earning, and is of the character we have supposed, it ought to be excluded from theaccount. Having considered the question of receipts or earnings, the next thing in order is the expenditures which are properly chargeable against the gross earning in order to arrive at the net earnings, as this expression is to be understood within the meaning of the act. As a general proposition, net earnings are the excess of the gross earnings over the expenditures defrayed in producing them, aside from, and exclusive of, the expenditure of capital laid out in constructing and equipping the works themselves. It may often be difficult to draw a precise line between expenditures for construction, and the ordinary expenses incident to operating and maintaining the road and works of a railroad company. Theoretically, the expenses chargeable to earnings include the general expenses of keeping up the organization of the company, and all expenses incurred in operating the works and keeping them in good condition and repair; whilst expenses chargeable to capital include those which are incurred in the original construction of the works, and in the subsequent enlargement and improvement thereof. With regard to the last-mentioned class of expenditures, however, namely, those which are incurred in enlarging and improving the works, a difference of practice prevails amongst railroad companies. Some charge to construction account every item of expense, and every part and portion of every item, which goes to make the road, or any of its appurtenances or equipments, better than they were before; whilst others charge to ordinary expense account, and against earnings, whatever is taken for these purposes from the earnings, and is not raised upon bonds or issues of stock. The latter method is deemed the most conservative and beneficial for the company, and operates as a restraint against injudicious dividends and the accumulation of a heavy indebtedness. The temptation is, to make expenses appear as small as possible, so as to have a large apparent surplus to divide. But it is not regarded as the wisest and most prudent method. The question is one of policy, which is usually left to the discretion of the directors. There is but little danger that any board will cause a very large or undue portion of their earnings to be absorbed in permanent improvements. The practice will only extend to those which may be required from time to time by the gradual increase of the company's traffic, the despatch of business, the public accommodation, and the general permanency and completeness of the works. When any important improvement is needed, such as an additional tract, or any other matter which involves a large outlay of money, the owners of the road will hardly forego the entire suspension of dividends in order to raise the requisite funds for those purposes; but will rather take the ordinary course of issuing bonds or additional stock. But for making all ordinary improvements, as well as repairs, it is better for the stockholders, and all those who are interested in the prosperity of the enterprise, that a portion of the earnings should be employed. We think that the true interest of the government, in this case, is the same as that of the stockholders; and will be subserved by encouraging a liberal application of the earnings to the improvement of the works. It is better for the ultimate security of the government in reference to the payment of its loan, as well as for the service which it may require in the transportation of its property and mails, that a hundred dollars should be spent in improving the works, than that it should receive five dollars towards the payment of its subsidy. If the five per cent of net earnings, demandable from the company, amounted to a new indebtedness, not due before, like a rent accruing upon a lease, a more rigid rule might be insisted on. But it is not so; the amount of the indebtedness is fixed and unchangeable. The amount of the five per cent and its receipt at one time or another is simply a question of earlier or later payment of a debt already fixed in amount. If the employment of any earnings of the road in making improvements lessens the amount of net earnings, the government loses nothing thereby. The only result is, that a less amount is presently paid on its debt; whilst the general security for the whole debt is largely increased. We are disposed to agree, therefore, with the judge who delivered the concurring opinion in the court below, that the twenty-seventh item of expenditure, as stated in the table of expenses in the eighteenth finding, entitled expenditures for station buildings, shops, &c., is a charge that may properly be made against earnings, since, as the fact is, such expenditures were actually paid therefrom, and were not carried to capital account. Should the company ever attempt to make a stock or bond dividend in consideration of such expenditure, the government would be entitled to demand its due proportion thereof by way of payment on account of its debt. But as long as such expenditures are fairly and in good faith charged to account of earnings, we see no good reason for disallowing the charge. Of course, the allowance of this item will supersede the deduction of fifteen per cent from the seventh item of earnings; which item, however, is subject to the observations that have already been made upon it. Expenses of the same kind as those included in item 27, which are contained in other items, and were disallowed by the Court of Claims, are to be allowed in like manner as those in item 27, including the expenses for issuing bonds. We agree with the Court of Claims in its rejection of the expenditures contained in items 17 to 30 in the table referred to, excepting item 27. All payments of interest on the bonded indebtedness of the company should be charged to capital interest account, and not to current expenditures. Though payable out of earnings before any dividend can be made to stockholders, they cannot be deducted for the purpose of ascertaining the net earnings of the road, as that term is to be understood in the sixth section of the act. The bonded debt incurred for the purpose of construction and equipment is but another form of capital, analogous to preferred stock; and the interest accruing thereon is in the nature of a dividend on such capital. It has nothing to do with, and cannot affect, the amount of the net earnings of the road. So the expenses of land and town-lot departments, and taxes on lands and town lots, are expenses properly belonging to the land department of the company's property. They are entirely distinct from its expenses as a railroad company; and form no proper charge, in the accounts, against the earnings of the road. The other items disallowed by the court require no particular remark. Their irrelevancy in the account of net earnings is obvious. III. We have still to consider the manner in which, and the conditions subject to which, the five per cent of net earnings is payable and demandable. We have seen that by the fifth section of the act of 1862 the issue to the company of the subsidy bonds was to constitute a first mortgage on the whole line of the railroad and telegraph, together with the rolling-stock, fixtures, and property of every kind and description, [and] in consideration of which said bonds should be issued. By the act of July 2, 1864, this priority of the government claim was relinquished in favor of a certain amount of first-mortgage bonds which, by that act, the company was authorized to issue. The provision referred to is contained in the tenth section of the act of 1864, which is as follows: — SECT. 10. And be it further enacted, that sect. 5 of said act [of July 1, 1862] be so modified and amended that the Union Pacific Railroad Company, the Central Pacific Railroad Company, and any other company authorized to participate in the construction of said road, may, on the completion of each section of said road, as provided in this act and the act to which this act is an amendment, issue their first-mortgage bonds on their respective railroad and telegraph lines to an amount not exceeding the amount of the bonds of the United States, and of even tenor and date, time of maturity, rate and character of interest, with the bonds authorized to be issued to said railroad companies respectively. And the lien of the United States bonds shall be subordinate to that of the bonds of any or either of said companies hereby authorized to be issued on their respective roads, property, and equipments, except as to the provisions of the sixth section of the act to which this act is an amendment, relating to the transmission of despatches and the transportation of mails, troops, munitions of war, supplies, and public stores for the government of the United States. It is found by the Court of Claims that the Union Pacific Railroad Company did issue its first-mortgage bonds as authorized by this section, and to the full amount allowed thereby. The company contends that the interest of these bonds, if not its other interest, should be charged as an expenditure against the earnings of the road in taking an account of its net earnings, which would reduce the net earnings of each year by the amount of said interest. We have already expressed an opinion that this claim cannot be sustained. The interest on these bonds do not, any more than the interest of any other bonds of the company, form any proper portion of the expenditures of the road to be considered in estimating the net earnings mentioned in sect. 6 of the act of 1862. But whilst we decide against the company on this point, we are clearly of opinion that the annual interest accruing on these particular bonds are to be first paid out of the net earnings, before the government can demand its five per cent thereof. We conceive this to be the legitimate effect of the concession by the government of its priority. It can hardly be pretended that, notwithstanding this concession, the five per cent to be applied in payment of the government bonds is to be first paid. It seems to us an absurdity to say that these bonds are entitled to a priority, but that the government must be first paid. This would be to grant a priority, and, in the same breath, to take it back again. It will not do to say that both must be paid, if there is not enough to pay both. It is a question between two parties having a claim against a common fund, and one of them having a priority over the other. It may, perhaps, be urged that the first-mortgage bondholders have no lien on the net earnings. But it has the same lien that the government has. Both liens are coextensive with the whole property of the company, so far at least as relates to the railroad and telegraph lines and their equipment and all property appurtenant thereto. There is a direction, it is true, that if the company makes net earnings, it shall pay five per cent thereof on its debt to the government. But that direction was contained in the act of 1862; the authority to issue the first-mortgage bonds, and the concession of priority thereto, was given two years afterwards, and is the controlling enactment. It cannot be supposed, after this transaction, that the company is bound to pay the government first, and to allow the interest on the first-mortgage bonds to go unpaid, or, in order to pay it, to go out in the money market and make a new loan. Such could never have been the intention of the law. Not to pay the interest on the first mortgage would expose the road and works to be seized and sold, — a result, certainly, that could not be to the interest of the government, when we consider that its entire debt is postponed to the first mortgage, and would be liable to be lost by such a proceeding. Borrowing money to pay the interest (if it could be borrowed) would only be to put off the evil day. The interest accruing on the first mortgage is as much payable out of the net earnings as the five per cent payable to government is. It is the proper fund out of which to pay both; and if but one can be paid, the former has the precedence; or else the whole government debt might be paid to the exclusion of the first mortgage, which is admitted to have the priority. Such a result would be manifestly absurd. The truth is, that the provision for paying five per cent of the net earnings on the subsidy debt was a provision for payment out of a particular fund. If by voluntary agreement on the part of the government a portion of that fund is appropriated to another purpose (which we think it is), then the government is entitled to go against the balance only. The provision created no new obligation or indebtedness, but only entitled the government to anticipate part payment of a fixed indebtedness out of a particular fund, if there should be such a fund. If the fund should not arise, or should be exhausted by claims to which the government gave priority over its own claim, there would clearly be nothing for the government to demand. It is not like the case of two mortgages, one prior to the other, and both having claims for interest coming due. In such case, if both claims are not paid, the one which is not paid becomes a cause of action, and may be put in suit. Here, the claim of the government is on the fund alone. If that is exhausted by its own consent, no cause of action arises. There is simply nothing left of the fund to which it has a right to resort. The government, however, may contend that if there is not a sufficient surplus of net earnings in one year to pay the five per cent due for that year, it may be carried over to a succeeding year, and taken out of the surplus thereof. We do not think that this position is more tenable than the other. Each year is to stand by itself. If there is a deficit in any year instead of net earnings, such deficit cannot be carried over into the next year's accounts by the company; and if there are net earnings which are absorbed by the interest due on the first mortgage, the claim of five per cent cannot be carried over into the next year by the government. The one is no more a debt than the other is a credit. The statute makes the application an annual one. If the year produces net earnings sufficient for the purpose, the government gets its five per cent; if it does not produce sufficient, the government does not get its five per cent; and there the account ends for that year. It was never intended that this account should be carried on from one year to another. This seems to us to be the fair and reasonable construction of the statutes, and one that does no injustice to either of the parties. The object of Congress in all of them was to extend a liberal hand in aid of the enterprise which the company undertook to carry out, and not to exact, in addition to the amount of service which the company was required to perform, the payment of any part of its loan before maturity, except a small portion of the net earnings of the road which the company would be presumed to have in its hands. So far as these were otherwise disposed of by the government's own consent, the application to its debt must be regarded as intended to be waived. The fact that by the ninth section of the act of March 3, 1871 (16 Stat. 525), the Secretary of the Treasury is required to pay over in money to the companies one-half of the compensation for the services performed by them for the United States, has no bearing on the question now under consideration. The statutes out of which this question arises were all passed long before, and are to be construed as if the act of 1871 had never been passed. We may add, in conclusion, that Congress, by the act passed May 7, 1878 (20 Stat. 56), supplementary to the acts of 1862 and 1864, has expressly directed that, in estimating the net earnings of the roads, the interest of the first-mortgage bonds, as well as the current expenses, is to be deducted from the gross earnings. Whilst this enactment cannot be invoked as furnishing any decisive rule for the construction of the statutes under review, it at least shows that Congress deems the interest of said first-mortgage bonds as fairly entitled to priority of payment out of the earnings of the road, before the payment of any portion thereof on the government debt. We think, therefore, that we are justified in supposing that our conclusion is in harmony with the views of the legislature, as to the justice and right of the case. The conclusions to which we have come on the whole case will require the following modifications of the decree appealed from: — First, In estimating the amount of gross earnings, no deduction will be made from the earnings included in items 7 or 12, as set forth in the table contained in the eighteenth finding of the Court of Claims, unless it be found that item 7, entitled company freight, is for transporting the company's own property on its road, and is not balanced by being also contained among the expenditures. If this be the case, then the whole of item 7 should be struck out. Secondly, In estimating the amount of expenditures to be deducted from gross earnings, the claimant should be credited with the expenditures contained in item 27 of the table of expenditures, and the other expenses which are disallowed by the Court of Claims, except items 17 to 26 inclusive, and items 28, 29, and 30, which are properly disallowed. Thirdly, If with these modifications it should be found that the net earnings, in any one year, were not more than sufficient to pay the interest on the first-mortgage bonds accruing in said year, then the company will not be decreed to pay any portion of the said five per cent of net earnings for that year. But if the net earnings were more than sufficient to pay said interest, the excess will be subject, as far as it will go, to the payment of said five per cent; but the company will not be decreed to pay any more than said excess. The decree will be reversed with instructions to enter a decree in accordance with this opinion; and it is So ordered.","First, as to the completion of the road."
+586,91697,2,1,"2. Answer of the plaintiff to the petition of the corporation defendant for a removal, herewith served. 3. Affidavits of J.H. McKune, W.F. George, and Jennie B. Ritter, herewith served; and 4. Also offer oral evidence. None of the affidavits here referred to are found in the transcript, and there is no statement of any oral evidence that was produced. The court heard the motion on the 27th of July and remanded the suit. From this order an appeal was taken and writ of error brought, and these have been docketed here as separate causes. It was not necessary to docket the cause twice because it was brought here both by appeal and writ of error. Hurst v. Hollingsworth, 94 U.S. 111. There was but one action in the court below, and there is but one record. The appeal and writ of error bring up but one order or judgment for review, and there is, therefore, but one case here. Upon the face of the complaint there is in the suit but a single cause of action, and that is the wrongful pollution of the water of the plaintiff's canal by the united action of all the defendants working together. Such being the case, the controversy was not separable for the purposes of a removal, even though the defendants answered separately, setting up separate defences. Pirie v. Tvedt, 115 U.S. 41; Sloane v. Anderson, 117 U.S. 275, 278. It is claimed, however, that, as the answers show that the Plymouth Company is the real defendant, and the petition alleges that the others are nominal parties only, and joined with that company as sham defendants to prevent a removal, the suit must be treated as in legal effect against the New York corporation alone, and, therefore, removable. So far as the complaint goes, all the defendants are necessary and proper parties. A judgment is asked against them all, both for an injunction and for money. Hayward and Hudson are admitted by the answer to be officers of the corporation, and Montgomery its superintendent. These persons are all citizens of California, and amenable to process in that State. It is not denied that they are all actively engaged in the operations of the company; and Montgomery, as the superintendent of its mines and mills, must necessarily be himself personally connected with the alleged wrongful acts for which the suit was brought. It is undoubtedly true that if the company has a good defence to the action, that defence will inure to the benefit of all the other defendants; but it by no means follows that, if the company is liable, the other defendants may not be equally so, and jointly with the company. It is possible, also, that the company may be guilty and the other defendants not guilty, but the plaintiff in its complaint says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but until his defence is made out the case stands against him, and the rights of all must be governed accordingly. Under these circumstances, the averments in the petition, that the defendants were wrongfully made to avoid a removal can be of no avail in the Circuit Court upon a motion to remand, until they are proven, and that, so far as the present record discloses, was not attempted. The affirmative of this issue was on the petitioning defendant. That corporation was the moving party, and was bound to make out its case. The order remanding the cause is Affirmed.",The transcript and record on file in said Circuit Court in said cause.
+587,104617,1,3,"THE STATUTORY INTENT OF THE SETTLOR REQUIRED TO MAKE THE ESTATE TAX APPLICABLE IS ABSENT AND A CONTRARY INTENT IS PRESENT. The undisputed evidence shows that, at the time of the transfer by trust, there was an absence of conscious intent on the part of the settlor that the trust property, or any part of it, should ever return to him or to his estate. In fact, there is strong evidence showing that he intended affirmatively to make a complete and irrevocable transfer which would exclude all possibility of a reverter to him. The trust recited as complete a transfer as any outright deed of gift would have recited if made directly to his children, except for the natural feature that, at their immature age, the transfer was made to trustees and these trustees were required by the irrevocable terms of the trust to deliver complete title to the settlor's children, or to their descendants, at a future date. The settlor's intent and the completeness of the transfer would have been no more complete if, instead of fixing the date for the future distribution of the trust property at the date of his own death, he had fixed it arbitrarily at December 19, 1940, which later proved to be the date of his death. The intent and completeness of the transfer, similarly, would have been no more complete if he had fixed the date of termination of the trust to coincide with the death of a third person instead of with his own death. THE STATUTE REQUIRES A FINDING OF THE SETTLOR'S INTENT. Section 811 (c) requires us to find the settlor's intent as a condition of the application of that Section to this case. Accordingly, if the settlor had used language in his trust instrument which expressly, or even impliedly, had created or recognized a possible reverter in favor of the settlor, that language in itself would have been evidence that the settlor had intended the trust to include a reverter in his favor and that he had intended the trust property, in the event of a realization of that reverter, to pass from him to his estate, under the 1920 trust, upon the expiration of that trust at his death. It is, however, in the complete absence of such language in the trust instrument that the Government now claims that a possible reverter has arisen by operation of law. The existence of such a reverter, accordingly, may or may not have been intended in fact, and may not have been even thought about by the settlor. To say that the settlor must have intended all the legal consequences of his acts begs the question. So construed, the Section would have the same meaning as if the word intended had been omitted. Intended should be given its normal, factual meaning. To intend means to have in mind as a design or purpose. [12] The question of intent is one of fact, difficult to determine, but determinable, nevertheless. Section 811 (c) involves more than merely determining whether a transfer took effect, as a matter of law, at or after death or whether a string or tie, as a matter of law, was retained until death. There remains for determination the fact whether the settlor did actually intend that the 1920 transfer take effect in possession or enjoyment upon the expiration of the trust at his death. Section 811 (c) expressly covers transfers either  in contemplation of or intended to take effect in possession or enjoyment at or after . . . death.  (Italics supplied.) We have held that the settlor-decedent's motive must be determined before it can be held that a transfer was in contemplation of death. United States v. Wells, 283 U.S. 102. That case included a transfer in trust, inter vivos, which was held not to have been made in contemplation of . . . death. Similarly, factual intent should be found in order to determine whether a transfer was intended to take effect in possession or enjoyment at or after . . . death. In United States v. Wells , Chief Justice Hughes, speaking for the Court, said (pp. 116-117): The quality which brings the transfer within the statute is indicated by the context and manifest purpose. Transfers in contemplation of death are included within the same category, for the purpose of taxation, with transfers intended to take effect at or after the death of the transferor. The dominant purpose is to reach substitutes for testamentary dispositions and thus to prevent the evasion of the estate tax. . . . As the transfer may otherwise have all the indicia of a valid gift inter vivos, the differentiating factor must be found in the transferor's motive. In cases involving contemplation of . . . death under § 811 (c) the required motive impelling a transfer  is a question of fact in each case. (Italics supplied.) See Allen v. Trust Co. of Georgia, 326 U.S. 630, 636. So also, in each case under § 811 (c), the question whether the decedent has at any time made a transfer, by trust or otherwise, . . . intended to take effect in possession or enjoyment at or after his death, . . . should be one of fact. In determining the issue as to the settlor's intent in making his 1920 transfer, inter vivos, in the present case, the following considerations are material and persuasive: 1. Language of the trust instrument. — There was no language in this instrument which expressed or even affirmatively implied an intent to make a transfer to take effect in possession or enjoyment at or after the death of the settlor rather than in praesenti. If the trust instrument had contained such an express or affirmatively implied declaration of the settlor's intent, it might have been conclusive of the issue. If there had been even a description of, or reference to, a possible reverter to the settlor, that would have been strong evidence of the intent required by § 811 (c). The absence of any such description or reference was consistent with a lack of intent that there be such a reverter. It was negative evidence to the effect that such a reverter was not intended and not desired by the settlor. In an instrument of this kind it is natural for the settlor to give affirmative expression to each beneficial use to which he intends or desires the trust property to be put. It cannot be argued effectively in this case that the complete silence of the trust instrument on the subject of a possible reverter of the trust property to the settlor or to his estate amounted to an expression of intent by the settlor that such a reverter be permitted to arise by operation of law. As a matter of fact, the extrinsic evidence presented in this case tended to establish an opposite intent and desire. In the present case, the overwhelming improbability of a complete failure of beneficiaries was so complete that it supplied a natural reason for omitting further provisions for distribution of the trust property. The likelihood that a 47-year-old settlor would outlive his three children and also his prospective grandchildren obviously was small. As it turned out, none of the settlor's three children predeceased him, and the distribution of the trust property was made to them without reaching his grandchildren. The facts of this case as they existed in 1920 presented to the settlor quite a different problem from that which would have been presented if, at that time, he had named as the only beneficiary of the trust a person with a life expectancy obviously shorter than his own. Standing alone, the instrument evidences a simple transfer in praesenti, comparable to that in Reinecke v. Northern Trust Co., supra . The language of the instrument, therefore, certainly did not, in itself, require the property which was transferred, in 1920, to be included, in 1940, in the settlor's gross estate for federal estate tax purposes. If anything, the language itself, read in the light of Illinois law as stated above in the discussion of the third proposal and as regarded by tle settlor in the light of the advice of his legal counsel, is expressive of an intent that there be no possibility of a reverter, and of an intent to make an absolute and complete transfer to the trustees in praesenti. 2. Remoteness of the possible reverter. — The remoteness of the possible realization of a suggested reverter (whether arising from express provision of a trust or by operation of law) is an important factor in establishing the probable intent of the settlor of any trust to make, thereby, a transfer to take effect in possession or enjoyment at or after his death. If the 1920 trust instrument had named as its sole beneficiary a person having a comparatively short life expectancy, then, assuming a reversion in favor of the settlor under Illinois law, the possibility of its occurrence would have been substantial. It would have been so great that, if the settlor had expressly mentioned such a reversion in the trust instrument, that mention of it would have substantially demonstrated the existence of the intent required by § 811 (c). Even if the settlor had made no express mention of such a reversion and thus had left its effectiveness wholly to the operation of the law of Illinois, the circumstances themselves, including the high probability of the realization of the reversion, would have supplied important evidence upon which to base a finding of the required intent on the part of the settlor. However, with the inclusion of each additional youthful beneficiary of the trust, the basis for a conclusion that the settlor intended to establish a reversion to himself or to his estate and to postpone the transfer of the possession or enjoyment of the property until at or after his death was weakened. The Tax Court, upon undisputed evidence, reduced to a mathematical basis the possibility presented by the suggested reverter in this case. The computations were stated to have been based upon a mortality table and an assumed rate of interest prescribed in Treasury Regulations as applicable to federal estate taxes. The computations also were stated to have been based upon assumed ages of a settlor and of beneficiaries corresponding substantially with those stated in the facts of this case. The computations showed that the probability that a person of the age of this settlor would survive three persons of the respective ages of the primary beneficiaries who were living at the date of the creation of this trust was only 0.01612, or about 1 1/2 chances out of 100. Similarly, the value of the right of a person, of the age of the settlor in 1920, to receive $1 on the death of the last of three persons of the ages of the primary beneficiaries was $0.00390. In 1920, the most favorable computation would thus have placed a value of less than $4,000 upon the settlor's interest in the suggested reverter relating to a $1,000,000 trust fund. These computations do not take into consideration the additional possibility that many grandchildren might have been born in time to qualify as beneficiaries of this trust, and thus further reduce the possibility of reverter. In fact, three such grandchildren were born in time to qualify — thus reducing the value to the settlor, in 1940, of the suggested reverter, on a $1,000,000 trust fund, to about $70. The relation of $70 to $1,000,000 ordinarily would be de minimis and certainly not one which would induce Congress to permit the assessment of a tax of over $450,000 because of its existence. This demonstration of the remoteness of the possible reverter, if any, in this case is persuasive at least in showing the fact to have been that the settlor, in establishing this trust, probably intended it to be nothing other than a completed gift to those of his children or their descendants who might survive him. In 1920 the gift, as such, was tax-free. Such a gift today would be subject to a gift tax. The assessment of a gift tax upon such a transaction emphasizes the impropriety, rather than the propriety, of also applying to it an estate tax at the death of the settlor. In 1920 the character of the gift was the same as it would be today and the fact that it was not subject to a gift tax then does not make it any more subject to the 1940 estate tax than if a gift tax had been paid upon it. 3. Direct evidence of the intent of the settlor. — Substantial evidence confirmed the absence of the factual intent necessary in order to make § 811 (c) applicable. There was no direct evidence indicating the existence of an actual intent on the part of the settlor to provide for a reverter to himself or to his estate or, in any other manner, to cause his 1920 transfer to trustees for the benefit of his descendants to take effect in possession or enjoyment at or after his death. On the other hand, there was undisputed evidence indicating the absence of such an intent. In fact, it indicated the probable existence of a contrary intent. The Illinois attorney who drew the trust instrument testified that, prior to the drafting of the instrument, the settlor had stated that he desired and intended the trust property to be transferred to trustees for the benefit of his children and that he wanted at no time to retain any interest in it. The attorney added that, in drafting the trust, he had endeavored to carry out the instructions of his client and that he believed he had done so. That attorney is a member of the firm representing the estate of the settlor-decedent in the instant case. As attorneys for the estate of the 1940 decedent, they argue that, under the law of Illinois, as they understood it and as they advised their client in 1920, there has not arisen any possibility of a reverter to the settlor under this trust by operation of law or otherwise. The receipt of that opinion by the settlor at the time of executing the trust instrument supports the petitioners' contention that the settlor then intended to translate into this Illinois trust his purpose to make an absolute and complete transfer of the subject matter of the trust, and thereby to make irrevocable provision for its future distribution. In view of the uncontroverted and convincing evidence of the absence of any such factual intent on the part of the settlor as is required to bring his 1920 transfer within the terms of § 811 (c), and in view of the judgment of the Tax Court in favor of the settlor-decedent's executors, there is no need to remand the case to that court for a further finding in support of its judgment. For the reasons stated in the foregoing discussion of the fifth proposal, and also for the reasons stated in the discussion of the third proposal to the effect that no possibility of a reverter arose in favor of the settlor by operation of the law of Illinois, I believe that the judgment of the United States Court of Appeals should be reversed.",the fifth proposal.
+588,104522,1,2,"That case was decided in 1926 by a unanimous Court, Chief Justice Taft writing. It involved a bill in equity to enjoin further violations of the Sherman Act. While violations of the Act by agreements fixing the resale price of patented articles (incandescent light bulbs) sold to dealers also were alleged in the bill, so far as here material the pertinent alleged violation was an agreement between General Electric and Westinghouse Company through which Westinghouse was licensed to manufacture lamps under a number of General Electric's patents, including a patent on the use of tungsten filament in the bulb, on condition that it should sell them at prices fixed by the licensor. On considering an objection to the fixing of prices on bulbs with a tungsten filament, the price agreement was upheld as a valid exercise of patent rights by the licensor. Speaking of the arrangement, this Court said: If the patentee. . . licenses the selling of the articles [by a licensee to make], may he limit the selling by limiting the method of sale and the price? We think he may do so, provided the conditions of sale are normally and reasonably adapted to secure pecuniary reward for the patentee's monopoly. P. 490. This proviso must be read as directed at agreements between a patentee and a licensee to make and vend. The original context of the words just quoted makes clear that they carry no implication of approval of all a patentee's contracts which tend to increase earnings on patents. The opinion recognizes the fixed rule that a sale of the patented article puts control of the purchaser's resale price beyond the power of the patentee. P. 489. Compare United States v. Univis Lens Co., 316 U.S. 241. Nor can anything be found in the General Electric case which will serve as a basis to argue otherwise than that the precise terms of the grant define the limits of a patentee's monopoly and the area in which the patentee is freed from competition of price, service, quality or otherwise. Compare Mercoid Corporation v. Mid-Continent Inv. Co., 320 U.S. 661, 665, 666; United States v. Masonite Corp., 316 U.S. 265, 277-78, 280; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510. General Electric is a case that has provoked criticism and approval. It had only bare recognition in Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 456. That case emphasized the rule against the extension of the patent monopoly, p. 456, to resale prices or to avoid competition among buyers. Pages 457-58. We found it unnecessary to reconsider the rule in United States v. Masonite Corp., 316 U.S. 265, 277, although the arrangement there was for sale of patented articles at fixed prices by dealers whom the patentee claimed were del credere agents. As we concluded the patent privilege was exhausted by a transfer of the articles to certain agents who were part of the sales organization of competitors, discussion of the price-fixing limitation was not required. In Katzinger Co. v. Chicago Mfg. Co., 329 U.S. 394, 398, where a suit was brought to recover royalties on a license with price limitations, this Court refused to examine the General Electric rule because of the claimed illegality of the Katzinger patent. If the patent were invalid, the price-fixing agreement would be unlawful. We affirmed the action of the Circuit Court of Appeals in remanding the case to the District Court to determine the validity of the patent. The General Electric case was cited with approval in Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 31. Other courts have explained or distinguished the General Electric rule. [14] As a reason for asking this Court to reexamine the rule of the General Electric case, the Government states that price maintenance under patents through various types of agreements is involved in certain pending cases. [15] Furthermore, the point is made that there is such a host of difficult and unsettled questions arising from the General Electric holding that the simplest solution is to overrule the precedent on the power of a patentee to establish sale prices of a licensee to make and vend a patented article. [16] Such a liquidation of the doctrine of a patentee's power to determine a licensee's sale price of a patented article would solve problems arising from its adoption. Since 1902, however, when Bement v. National Harrow Co., 186 U.S. 70, was decided, a patentee has been able to control his licensee's sale price within the limits of the patent monopoly. [17] Litigation that the rule has engendered proves that business arrangements have been repeatedly, even though hesitatingly, made in reliance upon the contractors' interpretation of its meaning. Appellees urge that Congress has taken no steps to modify the rule. [18] Such legislative attitude is to be weighed with the counterbalancing fact that the rule of the General Electric case grew out of a judicial determination. The writer accepts the rule of the General Electric case as interpreted by the third subdivision of this opinion. As a majority of the Court does not agree with that position, the case cannot be reaffirmed on that basis. Neither is there a majority to overrule General Electric. In these circumstances, we must proceed to determine the issues on the assumption that General Electric continues as a precedent. Furthermore, we do not think it wise to undertake to explain, further than the facts of this case require, our views as to the applicability of patent price limitation in the various situations listed by the Government. On that assumption where a conspiracy to restrain trade or an effort to monopolize is not involved, a patentee may license another to make and vend the patented device with a provision that the licensee's sale price shall be fixed by the patentee. The assumption is stated in this way so as to leave aside the many variables of the General Electric rule that may arise. For example, there may be an aggregation of patents to obtain dominance in a patent field, broad or narrow, or a patent may be used as a peg upon which to attach contracts with former or prospective competitors, touching business relations other than the making and vending of patented devices. Compare United States v. United States Gypsum Co., post, p. 364, decided today; United States v. Masonite Corp., 316 U.S. 265. It may be helpful to specify certain points that either are not contested or are not decided in this case. The agreements, if illegal, restrain interstate commerce contrary to the Sherman Act. No issue of monopoly is involved. (F.F. 31.) Cf. American Tobacco Co. v. United States, 328 U.S. 781, 788. That is to say, the complaint charges restraint of trade under § 1 and does not charge monopoly under § 2 of the Sherman Act, so that we need not deal with the problems of consolidation, merger, purchase of competitors or size of business as tending toward attaining monopoly. See United States v. United Shoe Machinery Co., 247 U.S. 32, 44-55; United States v. Aluminum Co. of America, 148 F.2d 416, 427-31; United States v. American Tobacco Co., 221 U.S. 106, 181-83; United States v. United States Steel Corp., 251 U.S. 417, 451. We are not dealing with a charge of monopoly or restraint because of the aggregation of patents, by pooling or purchase, by an owner or owners, in a single industry or field. See United States v. United Shoe Machinery Co., 247 U.S. 32. Within the limits of the patentee's rights under his patent, monopoly of the process or product by him is authorized by the patent statutes. It is stipulated by the United States that the validity of the patents is not in issue. With these points laid aside, we proceed to the issues presented by this record.",The General Electric Case.
+589,104522,1,3,"Under the above-mentioned assumption as to General Electric, the ultimate question for our decision on this appeal may be stated, succinctly and abstractly, to be as to whether in the light of the prohibition of § 1 of the Sherman Act, note 1, supra, two or more patentees in the same patent field may legally combine their valid patent monopolies to secure mutual benefits for themselves through contractual agreements, between themselves and other licensees, for control of the sale price of the patented devices. The appellees urge that the findings of the District Court, quoted in note 13 supra, stand as barriers to a conclusion here that § 1 of the Sherman Act has been violated by the licenses. Since there was material evidence to support the District Court's finding of the evidentiary facts and the Court necessarily weighed the credibility of the witnesses and the probative value of their testimony to establish appellees' contentions, appellees insist that the inferences or conclusions as to violations of the Sherman Act, drawn by the District Court, must be accepted by us. [19] As to the evidentiary facts heretofore stated, there is no dispute. From them the District Court made findings of fact Nos. 32 to 36, inclusive, hereinbefore set out in note 13. Even though we accept, as we do, these findings on preliminary facts as correct, the last sentence in findings 32 and 34 crumbles their asserted bar to an examination by us as to whether the agreements are violative of the Sherman Act. Those sentences are to the effect that there was an agreement to fix prices between all parties in the language of the contracts as set out in notes 8 and 9 supra. If the patent rights do not empower the patentees to fix sale prices for others, the agreements do violate the Act. The previous summary in this opinion of the agreements which compose these arrangements demonstrates that the agreements were intended to and did fix prices on the patented devices. Compare Interstate Circuit v. United States, 306 U.S. 208, 226. While Line's sublicenses to others than General Electric, note 9, gave to Line the power which it exercised to fix prices only for devices embodying its own Schultz patent, the sublicense agreements licensed the use of the dominant Lemmon patent. As the Schultz patent could not be practiced without the Lemmon, the result of the agreement between Southern and Line for Line's sublicensing of the Lemmon patent was to combine in Line's hands the authority to fix the prices of the commercially successful devices embodying both the Schultz and Lemmon patents. Thus, though the sublicenses in terms followed the pattern of General Electric in fixing prices only on Line's own patents, the additional right given to Line by the license agreement of January 12, 1940, between Southern and Line, to be the exclusive licensor of the dominant Lemmon patent, made its price fixing of its own Schultz devices effective over devices embodying also the necessary Lemmon patent. See note 9. By the patentees' agreement the dominant Lemmon and the subservient Schultz patents were combined to fix prices. In the absence of patent or other statutory [20] authorization, a contract to fix or maintain prices in interstate commerce has long been recognized as illegal per se under the Sherman Act. [21] This is true whether the fixed price is reasonable or unreasonable. It is also true whether it is a price agreement between producers for sale or between producer and distributor for resale. It is equally well settled that the possession of a valid patent or patents does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent monopoly. [22] By aggregating patents in one control, the holder of the patents cannot escape the prohibitions of the Sherman Act. See Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20; United States v. United States Gypsum Co., post, p. 364. During its term, a valid patent excludes all except its owner from the use of the protected process or product. United States v. United Shoe Machinery Co., 247 U.S. 32, 58; Special Equipment Co. v. Coe, 324 U.S. 370, 378. This monopoly may be enjoyed exclusively by the patentee or he may assign the patent or any interest therein to others. Rev. Stat. § 4898, as amended 55 Stat. 634. As we have pointed out, a patentee may license others to make and vend his invention and collect a royalty therefor. Thus we have a statutory monopoly by the patent and by the Sherman Act a prohibition, not only of monopoly or attempt to monopolize, but of every agreement in restraint of trade. Public policy has condemned monopolies for centuries. The Case of Monopolies, Darcy v. Allein, 11 Co. Rep. 84-b. See United States v. Aluminum Co. of America, 148 F.2d 416, 428-49. See Employment Act of 1946, § 2, 60 Stat. 23. Our Constitution allows patents. Art. I, § 8, cl. 8. The progress of our economy has often been said to owe much to the stimulus to invention given by the rewards allowed by patent legislation. The Sherman Act was enacted to prevent restraints of commerce but has been interpreted as recognizing that patent grants were an exception. Bement v. National Harrow Co., supra, 92, 21 Cong. Rec. 2457. Public service organizations, governmental and private, aside, our economy is built largely upon competition in quality and prices. Associated Press v. United States, 326 U. S 1, 12-14. Validation by Congress of agreements to exclude competition is unusual. [23] Monopoly is a protean threat to fair prices. It is a tantalizing objective to any business compelled to meet the efforts of competitors to supply the market. Perhaps no single fact manifests the power and will to monopolize more than price control of the article monopolized. There can be no clearer evidence of restraint of trade. Whatever may be the evil social effect of cutthroat competition on producers and consumers through the lowering of labor standards and the quality of the produce and the obliteration of the marginal to the benefit of the surviving and low-cost producers, the advantages of competition in opening rewards to management, in encouraging initiative, in giving labor in each industry an opportunity to choose employment conditions and consumers a selection of product and price, have been considered to overbalance the disadvantages. The strength of size alone, the disappearance of small business are ever-present dangers in competition. Despite possible advantages to a stable economy from efficient cartels with firm or fixed prices for products, it is crystal clear from the legislative history and accepted judicial interpretations of the Sherman Act that competition on prices is the rule of congressional purpose and that, where exceptions are made, Congress should make them. The monopoly granted by the patent laws is a statutory exception to this freedom for competition and consistently has been construed as limited to the patent grant. Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 452, 455; United States v. Univis Lens Co., 316 U.S. 241; Hartford-Empire Co. v. United States, 323 U.S. 386. It is not the monopoly of the patent that is invalid. It is the improper use of that monopoly. The development of patents by separate corporations or by cooperating units of an industry through an organized research group is a well known phenomenon. However far advanced over the lone inventor's experimentation this method of seeking improvement in the practices of the arts and sciences may be, there can be no objection, on the score of illegality, either to the mere size of such a group or the thoroughness of its research. It may be true, as Carlyle said, that Genius is an infinite capacity for taking pains. Certainly the doctrine that control of prices, outside the limits of a patent monopoly, violates the Sherman Act is as well understood by Congress as by all other interested parties. We are thus called upon to make an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by the Sherman Act. That adjustment has already reached the point, as the precedents now stand, that a patentee may validly license a competitor to make and vend with a price limitation under the General Electric case and that the grant of patent rights is the limit of freedom from competition under the cases first cited at note 22. With the postulates in mind that price limitations on patented devices beyond the limits of a patent monopoly violate the Sherman Act and that patent grants are to be construed strictly, the question of the legal effect of the price limitations in these agreements may be readily answered. Nothing in the patent statute specifically gives a right to fix the price at which a licensee may vend the patented article. 35 U.S.C. §§ 40, 47. While the General Electric case holds that a patentee may, under certain conditions, lawfully control the price the licensee of his several patents may charge for the patented device, no case of this Court has construed the patent and anti-monopoly statutes to permit separate owners of separate patents by cross-licenses or other arrangements to fix the prices to be charged by them and their licensees for their respective products. Where two or more patentees with competitive, non-infringing patents combine them and fix prices on all devices produced under any of the patents, competition is impeded to a greater degree than where a single patentee fixes prices for his licensees. The struggle for profit is less acute. Even when, as here, the devices are not commercially competitive because the subservient patent cannot be practiced without consent of the dominant, the statement holds good. The stimulus to seek competitive inventions is reduced by the mutually advantageous price-fixing arrangement. Compare, as to acts by a single entity and those done in combination with others, Swift & Co. v. United States, 196 U.S. 375, 396; United States v. Reading Co., 226 U.S. 324, 357; Eastern States Lumber Dealers' Assn. v. United States, 234 U.S. 600; Binderup v. Pathe Exchange, 263 U.S. 291. The merging of the benefits of price fixing under the patents restrains trade in violation of the Sherman Act in the same way as would the fixing of prices between producers of nonpatentable goods. If the objection is made that a price agreement between a patentee and a licensee equally restrains trade, the answer is not that there is no restraint in such an arrangement but, when the validity of the General Electric case is assumed, that reasonable restraint accords with the patent monopoly granted by the patent law. Where a patentee undertakes to exploit his patent by price fixing through agreements with anyone, he must give consideration to the limitations of the Sherman Act on such action. The patent statutes give an exclusive right to the patentee to make, use and vend and to assign any interest in this monopoly to others. The General Electric case construes that as giving a right to a patentee to license another to make and vend at a fixed price. There is no suggestion in the patent statutes of authority to combine with other patent owners to fix prices on articles covered by the respective patents. As the Sherman Act prohibits agreements to fix prices, any arrangement between patentees runs afoul of that prohibition and is outside the patent monopoly. We turn now to the situation here presented of an agreement where one of the patentees is authorized to fix prices under the patents. The argument of respondents is that if a patentee may contract with his licensee to fix prices, it is logical to permit any number of patentees to combine their patents and authorize one patentee to fix prices for any number of licensees. In this present agreement Southern and Line have entered into an arrangement by which Line is authorized to and has fixed prices for devices produced under the Lemmon and Schultz patents. It seems to us, however, that such argument fails to take into account the cumulative effect of such multiple agreements in establishing an intention to restrain. The obvious purpose and effect of the agreement was to enable Line to fix prices for the patented devices. Even where the agreements to fix prices are limited to a small number of patentees, we are of the opinion that it crosses the barrier erected by the Sherman Act against restraint of trade though the restraint is by patentees and their licensees. As early as 1912, in Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, this Court unanimously condemned price limitation under pooled [24] patent licenses. [25] As the arrangement was coupled with an agreement for limitation on jobbers' resale prices, the case may be said to be indecisive on patent license agreements for price control of a product without the jobber's resale provision. No such distinction appears in the opinion. This Court has not departed from that condemnation of price fixing. Even in Standard Oil Co. v. United States, 283 U.S. 163, where an arrangement by which the patentees pooled their oil cracking patents and divided among themselves royalties from licensees fixed by the pooling contracts was upheld, the theory was reiterated that a price limitation for the product was unlawful per se. Pp. 170, 173, 175. Of course, if a purpose or plan to monopolize or restrain trade is found, the arrangement is unlawful. P. 174. The Government's contention in that case that the limitation on royalties in itself violated the Sherman Act by fixing an element in the price was dismissed because the Court was of the view that controlled royalties were effective as price regulators only when the patentees dominated the industry. P. 174. This domination was thought by this Court not to have been proven. When a plan for the patentee to fix the sale prices of patented synthetic hardboard on sales made through formerly competing manufacturers and distributors, designated as del credere agents, [26] came before this Court on allegations that the plan was in violation of the Sherman Act, we invalidated the scheme. We said that the patentee could not use its competitor's sales organization as its own agents so as to control prices. The patent monopoly, under such circumstances, we said, was exhausted on disposition of the product to the distributor. We reasoned that such an arrangement was a restriction on our free economy, a powerful inducement to abandon competition, and that it derogated from the general law [against price limitation] beyond the necessary requirements of the patent statute. United States v. Masonite Corp., 316 U.S. 265, 281, 280. We think that this general rule against price limitation clearly applies in the circumstances of this case. Even if a patentee has a right in the absence of a purpose to restrain or monopolize trade, to fix prices on a licensee's sale of the patented product in order to exploit properly his invention or inventions, when patentees join in an agreement as here to maintain prices on their several products, that agreement, however advantageous it may be to stimulate the broader use of patents, is unlawful per se under the Sherman Act. It is more than an exploitation of patents. There is the vice that patentees have combined to fix prices on patented products. It is not the cross-licensing to promote efficient production which is unlawful. There is nothing unlawful in the requirement that a licensee should pay a royalty to compensate the patentee for the invention and the use of the patent. The unlawful element is the use of the control that such cross-licensing gives to fix prices. The mere fact that a patentee uses his patent as whole or part consideration in a contract by which he and another or other patentees in the same patent field arrange for the practice of any patent involved in such a way that royalties or other earnings or benefits from the patent or patents are shared among the patentees, parties to the agreement, subjects that contract to the prohibitions of the Sherman Act whenever the selling price, for things produced under a patent involved, is fixed by the contract or a license authorized by the contract. Licensees under the contract who as here enter into license arrangements, with price-fixing provisions, with knowledge of the contract, are equally subject to the prohibitions. The decree of the District Court is reversed and the case is remanded for the entry of an appropriate decree in accordance with this opinion. MR. JUSTICE JACKSON took no part in the consideration or decision of this case.",The Determination of the Issue.
+590,104812,1,1,"The Solicitor General contends that this overall project, and each part of it, has been authorized by Congress, under the commerce power, as a measure for control of navigation. Claimants on the other hand urge that although improvement of navigation was one objective of the Central Valley undertaking as a whole, nevertheless construction of the Friant Dam and the consequent taking of San Joaquin water rights had no purpose or effect except for irrigation and reclamation. This, it is claimed, was not only the actual, but the avowed purpose of Congress. On these conflicting assumptions the parties predicate contrary conclusions as to the right to compensation. In the Rivers and Harbors Act of August 26, 1937, § 2, 50 Stat. 844, 850, and again in the Rivers and Harbors Act of October 17, 1940, 54 Stat. 1198, 1199-1200, Congress said that the entire Central Valley project . . . is . . . declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof . . . . The 1937 Act also provided that the said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control . . . . But it also is true, as pointed out by claimants, that in these Acts Congress expressly reauthorized [2] a project already initiated by President Roosevelt, who, on September 10, 1935, made allotment of funds for construction of Friant Dam and canals under the Federal Emergency Relief Appropriation Act, 49 Stat. 115, § 4, and provided that they shall be reimbursable in accordance with the reclamation laws. [3] A finding of feasibility, as required by law, [4] was made by the Secretary of the Interior on November 26, 1935, making no reference to navigation, and his recommendation of the Central Valley development as a Federal reclamation project was approved by the President on December 2, 1935. When it reauthorized the Central Valley undertaking, Congress in the same Act provided that the provisions of the reclamation law, [5] as amended, shall govern the repayment of expenditures and the construction, operation, and maintenance of the dams, canals, power plants, pumping plants, transmission lines, and incidental works deemed necessary to said entire project, and the Secretary of the Interior may enter into repayment contracts, and other necessary contracts, with State agencies, authorities, associations, persons, and corporations, either public or private, including all agencies with which contracts are authorized under the reclamation law, and may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes: . . . . The Central Valley basin development envisions, in one sense, an integrated undertaking, but also an aggregate of many subsidiary projects, each of which is of first magnitude. It consists of thirty-eight major dams and reservoirs bordering the valley floor and scores of smaller ones in headwaters. It contemplates twenty-eight hydropower generating stations. It includes hundreds of miles of main canals, thousands of miles of laterals and drains, electric transmission and feeder lines and substations, and a vast network of structures for the control and use of water on two million acres of land already irrigated, three million acres of land to be newly irrigated, 360,000 acres in the delta needing protection from intrusions of salt water, and for municipal and miscellaneous purposes including cities, towns, duck clubs and game refuges. These projects are not only widely separated geographically, many of them physically independent in operation, but they are authorized in separate acts from year to year and are to be constructed at different times over a considerable span of years. A formula has been approved by the President by which multiple purpose dams are the responsibility of the Bureau of Reclamation, and dams and other works only for flood control are exclusively the responsibility of the Army Engineers. [6] The entire Friant and San Joaquin projects at all times have been administered by the Bureau of Reclamation. We cannot disagree with claimants' contention that in undertaking these Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recognition of water rights having valid existence under state law. By its command that the provisions of the reclamation law should govern the construction, operation, and maintenance of the several construction projects, Congress directed the Secretary of the Interior to proceed in conformity with state laws, giving full recognition to every right vested under those laws. [7] Cf. Nebraska v. Wyoming, 295 U. S. 40, 43; Power Co. v. Cement Co., 295 U. S. 142, 164; Nebraska v. Wyoming, 325 U. S. 589, 614; Mason Co. v. Tax Comm'n, 302 U. S. 186. In this respect, Congress' action parallels that in Ford & Son v. Little Falls Fibre Co., 280 U. S. 369. The original plan called for purchase of water rights and included an estimate of their cost. [8] We are advised by the Government that at least throughout administration of California reclamation projects it has been the consistent practice of the Bureau of Reclamation to respect such property rights. Such has specifically been the Bureau's practice in connection with the Friant project, and this has been reported to Congress, [9] which has responded some nine times in the past twelve years to requests for appropriations to meet such expenses. We think this amounts, not to authorizations and declarations creating causes of action against the United States, but to awareness and approval of administrative construction. We think it clear that throughout the conception, enactment and subsequent administration of the plan, Congress has recognized the property status of water rights vested under California law. It is not to be doubted that the totality of a plan so comprehensive has some legitimate relation to control of inland navigation or that particular components may be described without pretense as navigation and flood control projects. This made it appropriate that Congress should justify making this undertaking a national burden by general reference to its power over commerce and navigation. The Government contends that the overall declaration of purpose is applicable to Friant Dam and related irrigation facilities as an integral part of what Congress quite properly treated as a unit. Adverting to United States v. Willow River Co., 324 U. S. 499; United States v. Commodore Park, 324 U. S. 386; United States v. Appalachian Power Co., 311 U. S. 377; United States v. Chandler-Dunbar Co., 229 U. S. 53, the Government relies on the rule that it does not have to compensate for destruction of riparian interests over which at the point of conflict it has a superior navigation easement the exercise of which occasions the damage. And irrespective of divisibility of the entire Central Valley undertaking, the Government contends that Friant Dam involves a measure of flood control, an end which is sensibly related to control of navigation. Oklahoma v. Atkinson Co., 313 U. S. 508. Claimants, on the other hand, urge that at least the Friant Dam project was wholly unrelated to navigation ends and could not be controlled by the general Congressional declaration of purpose. They point out that, although definitions of navigation have been expanded, United States v. Appalachian Power Co., supra , in every instance in which this Court has denied compensation for deprivation of riparian rights it has specifically noted that the federal undertaking bore some positive relation to control of navigation. United States v. Willow River Co., supra, 510; United States v. Commodore Park, supra, 391; United States v. Appalachian Power Co., supra, 423; United States v. Chandler-Dunbar Co., supra, 62; and cases cited. And, referring to International Paper Co. v. United States, 282 U. S. 399; United States v. River Rouge Co., 269 U. S. 411, and cases cited, they observe that this Court has never permitted the Government to pervert its navigation servitude into a right to destroy riparian interests without reimbursement where no navigation purpose existed. Since we do not agree that Congress intended to invoke its navigation servitude as to each and every one of this group of coordinated projects, we do not reach the constitutional or other issues thus posed. Accordingly, we need not decide whether a general declaration of purpose is controlling where interference with navigation is neither the means, South Carolina v. Georgia, 93 U. S. 4, nor the consequence, United States v. Commodore Park, supra , of its advancement elsewhere. Similarly, we need not ponder whether, by virtue of a highly fictional navigation purpose, the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them. We have never held that or anything like it, and we need not here pass on any question of constitutional power; for we do not find that Congress has attempted to take or authorized the taking, without compensation, of any rights valid under state law. On the contrary, Congress' general direction of purpose we think was intended to help meet any objection to its constitutional power to undertake this big bundle of big projects. The custom of invoking the navigation power in authorizing improvements appears to have had its origin when the power of the Central Government to make internal improvements was contested and in doubt. It was not until 1936 that this Court in United States v. Butler, 297 U. S. 1, declared for the first time, and without dissent on this point, that, in conferring power upon Congress to tax to pay the Debts and provide for the common Defence and general Welfare of the United States, the Constitution delegates a power separate and distinct from those later enumerated, and one not restricted by them, and that Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. If any doubt of this power remained, it was laid to rest the following year in Helvering v. Davis, 301 U. S. 619, 640. Thus the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation. [10] But in view of this background we think that reference to the navigation power was in justification of federal action on the whole, not for effect on private rights at every location along each component project. Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress. Whether Congress could have chosen to take claimants' rights by the exercise of its dominant navigation servitude is immaterial. By directing the Secretary to proceed under the Reclamation Act of 1902, Congress elected not to in any way interfere with the laws of any State . . . relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder. 32 Stat. 388, 390. We cannot twist these words into an election on the part of Congress under its navigation power to take such water rights without compensation. In the language of Mr. Justice Holmes, writing for the Court in International Paper Co. v. United States, 282 U. S. 399, 407, Congress proceeded on the footing of a full recognition of [riparians'] rights and of the Government's duty to pay for the taking that [it] purported to accomplish. We conclude that, whether required to do so or not, Congress elected to recognize any state-created rights and to take them under its power of eminent domain. [11] We are guided to this conclusion by the interpretation placed on Congress' Acts by the Reclamation Bureau, which, in administering the project, has at all times pursued a course impossible to reconcile with present contentions of the Government. From the beginning, it has acted on the assumption that its Friant undertaking was a reclamation project. Even a casual inspection of its committee hearings and reports leaves no doubt that Congress was familiar with and approved this interpretation. Although the Solicitor General contends that, because of the navigation purpose remotely involved, deprivation of water rights along the San Joaquin is not compensable, we have observed that the plan as originally adopted and as carried out by the Bureau included replacement at great expense of all water formerly used for crops and controlled grass lands and purchase of that used on marginal pasture lands. [12] It has consistently advised the Congress that it was purchasing San Joaquin water rights and appropriations have been made accordingly. [13] Moreover, Congress [14] and the water users [15] have been advised that, in prosecution of the work, existing water rights would be respected. This administrative practice has been extended even to the lands in question. Pursuant to its plan, the Bureau offered to purchase the rights of claimants in Nos. 7, 8 and 9, but the parties could not agree on the price. In addition, it entered into a written contract with Miller & Lux, Inc., purchasing for $2,450,000 riparian rights which included some identical with those the Government now denies to exist. In fact it includes the very rights now asserted by claimants Gerlach, Erreca and Potter, who obtained title to their riparian properties from Miller & Lux. Because of certain reservations in their grants, it was possible that Miller & Lux retained the rights riparian to these properties. The Government therefore agreed with Miller & Lux that the sum of $511,350 should be deposited with an escrow agent. If final judgments obligate the United States to make compensation to Miller & Lux grantees for such riparian grass lands, the United States shall be reimbursed from the escrow fund in an amount not exceeding $9 per acre. However, if final judgments dismiss the claims, the escrowed funds go to Miller & Lux. The substance of this strange transaction is that the Government, which now asks us to hold that there are no such riparian rights, has already bought and paid for them at the price which the Court of Claims has allowed. The results of the Government's bargain are that, if we hold there are no rights, Miller & Lux will be paid for them; and, if we hold there are such rights, they will be paid from what otherwise goes to Miller & Lux. As to these three cases, the Government is defending against the claims, not as the real party in interest, but because it undertook to do so on behalf of Miller & Lux. Of course, this Court is not bound by administrative mistakes. If the Government had contracted to pay for rights which are nonexistent, it would not preclude us from upholding later and better advised contentions. But when a project has been regarded by the highest Executive authorities as a reclamation project, and has been carried as such from its initiation to final payment for these rights, and Congress, knowing its history, has given the approvals that it has, we think there is no ground for asking us to hold that the provisions of the Reclamation Act do not apply. We hold that they do apply and we therefore turn, as that Act bids us, to the laws of the State to determine the rights and liabilities of landowner and appropriator.",navigation or reclamation project?
+591,104812,1,2,"The adversaries in this case invoke rival doctrines of water law which have been in competition throughout California legal history. The claims are expressly based on common-law riparian-rights doctrines as declared by California courts. The United States, on the other hand, by virtue of the Reclamation Act, stands in the position of an upstream appropriator for a beneficial use. The governing water law of California must now be derived from a 1928 Amendment to its Constitution [16] which compresses into a single paragraph a reconciliation and modification of doctrines evolved in litigations that have vexed its judiciary for a century. Its text leaves many questions to be answered, and neither it nor any legislation or judicial decision provides a direct and explicit determination of the present state law on issues before us. But since the federal law adopts that of the State as the test of federal liability, we must venture a conclusion as to peculiarly local law. We can do so only in the light of a long history of strife and doctrinal conflict, which California says must be known by every judge of these matters, Conger v. Weaver, 6 Cal. 548, and in continuity with which both the cryptic text of the Amendment and the policy of federal statutes become more intelligible. [17] Upon acquiring statehood in 1850, California adopted the common law of England as the rule of decision in its courts when not inconsistent with the Federal or State Constitutions or State legislation. In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. That also was the general Mexican law, if it had any lingering authority there, but see Boquillas Cattle Co. v. Curtis, 213 U. S. 339, 343; Gutierres v. Albuquerque Land Co., 188 U. S. 545, 556, except for a peculiar concession to pueblos. Indeed, riparian-rights doctrines prevailed throughout Western civilization. As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes —things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law. Riparian rights developed where lands were amply watered by rainfall. The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages. These are set forth in Shively v. Bowlby, 152 U. S. 1. But it may be said that when California adopted it the general philosophy of the riparian-rights system had become common law throughout what was then the United States. Then in the mountains of California there developed a combination of circumstances unprecedented in the long and litigious history of running water. Its effects on water laws were also unprecedented. Almost at the time when Mexico ceded California, with other territories, to the United States, gold was discovered there and a rush of hardy, aggressive and venturesome pioneers began. If the high lands were to yield their treasure to prospectors, water was essential to separate the precious from the dross. The miner's need was more than a convenience —it was a necessity; and necessity knows no law. But conditions were favorable for necessity to make law, and it did—law unlike any that had been known in any part of the Western world. The adventurers were in a little-inhabited, unsurveyed, unowned and almost ungoverned country, theretofore thought to have little value. It had become public domain of the United States and miners regarded waters as well as lands subject to preemption. To be first in possession was to be best in title. Priority—of discovery, location and appropriation—was the primary source of rights. Fortuitously, along lower reaches of the streams there were no riparian owners to be injured and none to challenge customs of the miners. In September, 1850, California was admitted to the Union as a State. In 1851, its first Legislature enacted a Civil Practice Act which contained a provision that in actions respecting `Mining Claims,' . . . customs, usages, or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decision of the action. [18] The custom of appropriating water thus acquired some authority, notwithstanding its contradiction of the common law. A practice that was law in the mountains was contrary to the law on the books. Here were provocations to controversy that soon came to the newly established state courts. In California, as everywhere, the law of flowing streams has been the product of contentions between upper and lower levels. Thus when Matthew Irwin built a dam and canal on the upper San Joaquin for appropriating water to supply miners, downstream settler Robert Phillips tore it down and asserted his own riparian right to have the water descend to him in its natural volume. Faced with this issue between custom and doctrine, the California Supreme Court escaped by observing that both claims were located on public domain, and that neither party could show proprietorship. Accordingly, as between two mere squatters, priority of appropriation established the better right. But the court gave warning that this appropriative right might not prevail against a downstream riparian who claimed by virtue of proprietorship. Irwin v. Phillips, 5 Cal. 140 (1855). The United States, as owner of the whole public domain, was such a proprietor, and the decision made appropriations vulnerable to its challenge. It also left the pioneers in position of trespassers. They were taught that the tenure of their preemptions and appropriations was precarious when, in 1858, the Attorney General of the United States intervened in private litigation to contend in federal court that the land in dispute was public, and asserted generally a right to restrain all mining operations upon public land. His intervention was successful, an injunction forbade working the mine in question, and a writ issued under the hand of President Lincoln directing military authorities to remove the miners. United States v. Parrott, 1 McAll. (C. C.) 271. Demands of mining and water interests that the Federal Government relieve their uncertain status were loud, but went unheeded amidst the problems that came with civil war. But after the war closed, the issue was again precipitated by a bill introduced at the request of the Secretary of the Treasury to have the United States withdraw all mines from the miners, appraise and sell them, reserving a royalty after sale. This the Secretary believed would yield a large revenue and the public lands would help pay the public war debt. However, the private interests prevailed. The Act of July 26, 1866, 14 Stat. 251, R. S. § 2339, declared the mining lands free and open to preemption and included the following: That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. 14 Stat. 251, 253, 43 U. S. C. § 661. This section was expounded by Mr. Justice Field in Jennison v. Kirk, 98 U. S. 453, as foreclosing further proprietary objection by the United States to appropriations which rested upon local custom. This Court regarded the Act as an unequivocal grant for existing diversions of water on the public lands. Broder v. Water Co., 101 U. S. 274. Thus Congress made good appropriations in being as against a later patent to riparian parcels of the public domain, and removed the cloud cast by adverse federal claims. While this was being accomplished, changed conditions brought new adversaries to contend against the appropriators. The Homestead Act of 1862 had opened agricultural lands to preemption and set up a method of acquiring formal title. 12 Stat. 392. Farms and ranches appeared along the streams and wanted the protection that the common law would give to their natural flow. The Act of 1866, as we have noted, made appropriators liable for damage to settlers with whose possession they interfered. The Supreme Court of California decided that a riparian owner came into certain rights which he could assert against a subsequent appropriator of the waters of the stream, even though he could not as against a prior appropriation. Crandall v. Woods, 8 Cal. 136. In 1886 came the decisive battle of Lux v. Haggin, 69 Cal. 255, 10 P. 674. Haggin organized an irrigation company and claimed the right to appropriate the entire flow of the Kern River for irrigation and to destroy any benefits for riparian owners downstream. The court held that the doctrine of riparian rights still prevailed in California, that such right attached to riparian land as soon as it became private property and, while subject to appropriations made prior to that time, it is free from all hostile appropriations thereafter. Thus California set itself apart by its effort to reconcile the system of riparian rights with the system of appropriation, whereas other arid states rejected the doctrine of riparian rights forthrightly and completely. The Twentieth Century inducted new parties into the old struggle. Gigantic electric power and irrigation projects succeeded smaller operations, and municipalities sought to by-pass intervening agricultural lands and go into the mountains to appropriate the streams for city supply. Increasing dependence of all branches of the State's economy, both rural and urban, upon water centered attention upon its conservation and maximum utilization. This objective seemed frustrated by the riparian-rights doctrine when, in 1926, the California Supreme Court decided Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, and this Court, after argument, dismissed certiorari for want of a federal question, 275 U. S. 486 (1927). That case involved just such questions as we have here. Southern California Edison projected a large storage of San Joaquin waters in the mountains primarily for power generation. Plaintiffs' ranch, like lands of claimants, had always been naturally irrigated by overflow and thus naturally was productive property. Appropriation by the power company threatened to impair this overflow and destroy the value of the ranch. The company was unwilling to compensate the damage. The court held that common law of riparian rights must prevail against the proposed utilization and, notwithstanding the economic waste involved in plaintiffs' benefit, enjoined the power project. This ruling precipitated a movement for amendment of the State Constitution and thus brought to a focus a contest that had grown in bitterness and intensity throughout the arid regions as both populations and property values mounted. The doctrine of riparian rights was characterized as socialistic. Wiel, Theories of Water Law, 27 Harv. L. Rev. 530 (1914). The State Supreme Court said the law of appropriation would result in monopoly. Lux v. Haggin, supra, at 309, 10 P. at 703. If the uneconomic consequences of unlimited riparianism were revealed by court decisions, so the effects of unrestrained appropriation became apparent where the flow of rivers became completely appropriated, leaving no water for newcomers or new industry. [19] A Joint Committee of the California Legislature gave extended study to the water problems of that State and careful consideration of many remedies. Among other proposals, one relevant to our question was to revoke or nullify all common-law protection to riparian rights and do it retroactively as of the year 1850. [20] The Committee rejected all dispossession proposals as confiscatory. It reported an amendment to the Constitution which attempted to serve the general welfare of the State by preserving and limiting both riparian and appropriative rights while curbing either from being exercised unreasonably or wastefully. The Amendment was submitted to and adopted by the electors in November 1928 and now constitutes California's basic water law, to which the Federal Reclamation Act defers. We cannot assume that this Amendment was without impact upon claims to water rights such as we have here, for, as we have seen, it was provoked by their assertion. Neither can we assume that its effect is to deprive riparian owners of benefits it declares to continue or unintentionally to strike down values there was a studied purpose to preserve. We are only concerned with whether it continued in claimants such a right as to be compensable if taken. But what it took away is some measure of what it left. Riparianism, pressed to the limits of its logic, enabled one to play dog-in-the-manger. The shore proprietor could enforce by injunction his bare technical right to have the natural flow of the stream, even if he was getting no substantial benefit from it. This canine element in the doctrine is abolished. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, . . . . This limitation is not transgressed by the awards in question which only compensate for the loss of actual beneficial use. Any hazard to claimants' rights lurks in the following clause: and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Since riparian rights attach to, and only to, so much of the flow of the San Joaquin as may be put to beneficial use consistently with this clause, claimants can enforce no use of wasteful or unreasonable character. We assume for purposes of this decision that the prodigal use, inseparable from claimants' benefits, is such that the rights here asserted might not be enforced by injunction. But withholding equitable remedies, such as specific performance, mandatory orders or injunctions, does not mean that no right exists. There may still be a right invasion of which would call for indemnification. In fact, adequacy of the latter remedy is usually grounds for denial of the former. But the public welfare, which requires claimants to sacrifice their benefits to broader ones from a higher utilization, does not necessarily require that their loss be uncompensated any more than in other takings where private rights are surrendered in the public interest. The waters of which claimants are deprived are taken for resale largely to other private land owners not riparian to the river and to some located in a different water shed. Thereby private lands will be made more fruitful, more valuable, and their operation more profitable. The reclamation laws contemplate that those who share these advantages shall, through water charges, reimburse the Government for its outlay. This project anticipates recoupment of its cost over a forty-year period. [21] No reason appears why those who get the waters should be spared from making whole those from whom they are taken. Public interest requires appropriation; it does not require expropriation. We must conclude that by the Amendment California unintentionally destroyed and confiscated a recognized and adjudicated private property right, or that it remains compensable although no longer enforcible by injunction. The right of claimants at least to compensation prior to the Amendment was entirely clear. Insofar as any California court has passed on the exact question, the right appears to survive. [22] Five years after the Amendment, the Superior Court of California [23] specifically sustained identical rights. The Madera Irrigation District had been organized to build a dam at the Friant site and to divert San Joaquin waters to irrigate about 170,000 acres. It was sued by Miller & Lux, Inc., and two of its subsidiaries, and decrees in their favor were entered in 1933. In general, the court sustained the Miller & Lux riparian rights to the annual overflow of uncontrolled grass lands, some of which now belong to claimants. It adjudged the proposed appropriation invalid and ineffective as against those rights. In July of 1940 the United States acquired all of Madera's rights, including pending applications to appropriate San Joaquin water under state law. These judgments had become final and were outstanding adjudications of the issues here involved against a grantor of the United States. Without considering the claim that the 1933 judgments may be res judicata, they are at least persuasive that claimants' rights to the benefit had, in the opinion of California courts, survived the Amendment and must be retired by condemnation or acquisition before the Friant diversion could be valid. The Supreme Court of California has given no answer to this specific problem. But in the light of its precedents and its conclusions and discussions of collateral issues, especially in Peabody v. Vallejo, 2 Cal. 2d 351, 40 P. 2d 486; Lodi v. East Bay Municipal Utility District, 7 Cal. 2d 316, 60 P. 2d 439; Hillside Water Co. v. Los Angeles, 10 Cal. 2d 677, 76 P. 2d 681; Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P. 2d 5; Meridian, Ltd. v. San Francisco, 13 Cal. 2d 424, 90 P. 2d 537; Los Angeles v. Glendale, 23 Cal. 2d 68, 142 P. 2d 289, we conclude that claimants' right to compensation has a sound basis in California law. The reclamation authorities were apparently of that view as the Miller & Lux contract would indicate. We recognize that the right to inundation asserted here is unique in the history of riparian claims. Where the thirst of the land is supplied by rainfall, floods are detriments if not disasters, and to abate overflows could rarely if ever cause damage. But, as we have pointed out, uncommon local conditions have given rise to the singular rule of California. The same scarcity which makes it advantageous to take these waters gives them value in the extraordinary circumstances in which the California courts have recognized a private right to have no interception of their flow except upon compensation. We think the awards of the Court of Claims correctly applied the law of California as made applicable to these claims by Congress.",claimants' riparian rights under california law.
+592,104812,1,3,"The Government also assigns as error determination of the date from which interest is to be allowed. The Court of Claims adopted as the date of taking the first substantial impoundment of water which occurred on October 20, 1941, even though it had not then prevented benefits from reaching the property. The contract between the Government and Miller & Lux contemplated this as the date of taking, for it puts the $511,350 in escrow to protect the Government against suits initiated prior to the sixth anniversary after the initial storage or diversion. Since the Government itself has adopted this date for the expiration of its protection by contract, we see no reason why it should challenge the Court of Claims for use of the same date for accrual of the claims. Regardless of how this might have been fixed in the absence of such an administrative determination, we decline to set aside the finding on this subject. Second, the Government claims that the court below misconstrued reservations in the deeds between the three claimants and Miller & Lux. It is not apparent from the facts we have recited that the Government is the real party in interest as to this question, which seems to be in the nature of a private controversy between claimants and Miller & Lux. In any event, it presents a question of conveyancing and real property law peculiar to this one case, and depending on local law. It is not a question of general interest, nor is there any manifest error, and we accept, without review, the finding of the Court of Claims thereon. Finally, the Government protests that the court below failed adequately to describe the rights taken for which it has made an award. We think in view of the simple nature of the claims, the exhaustive character of the findings and the understanding the Government must have acquired in seven years of the litigations, there is little prospect that it will be grievously misled by deficiencies, if any, that may exist in the description. The judgments are Affirmed. MR. JUSTICE BLACK concurs in the judgment and opinion except that he agrees with MR. JUSTICE DOUGLAS that interest should not be allowed.",other issues.
+593,131149,4,2,"Plaintiffs also contend that § 323(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e. g., California Democratic Party v. Jones, 530 U. S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989). But not every minor restriction on parties' otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II, 533 U. S., at 450, n. 11. As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee's Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of choice. [65] The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize all hands fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of § 323(b)(2)'s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme. Section 323(b)(2)(B)(iv)'s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee's Levin expenditures presents a closer question. 2 U. S. C. A. § 441i(b)(2)(B)(iv) (Supp. 2003). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee's Levin funds. This purported interest is weak, particularly given the fact that § 323(a) already polices attempts by national parties to engage in such behavior. See 2 U. S. C. A. § 441i(a)(2) (extending § 323(a)'s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis. Party committees, including national party committees, remain free to transfer unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all homegrown hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticircumvention interest vindicated by § 323(b)(2)(B)(iv)'s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement.",Associational Burdens Imposed by the Levin Amendment
+594,131149,1,1,"Title I principally bans the solicitation, receipt, transfer, and spending of soft money by the national parties (new FECA § 323(a), 2 U. S. C. A. § 441i(a) (Supp. 2003)). It also bans certain uses of soft money by state parties (new FECA § 323(b)); the transfer of soft money from national parties to nonprofit groups (new FECA § 323(d)); the solicitation, receipt, transfer, and spending of soft money by federal candidates and officeholders (new FECA § 323(e)); and certain uses of soft money by state candidates (new FECA § 323(f)). These provisions, and the other provisions with which this opinion is principally concerned, are set out in full, see Appendix, infra. Even a cursory review of the speech and association burdens these laws create makes their First Amendment infirmities obvious: Title I bars individuals with shared beliefs from pooling their money above limits set by Congress to form a new third party. See new FECA § 323(a). Title I bars national party officials from soliciting or directing soft money to state parties for use on a state ballot initiative. This is true even if no federal office appears on the same ballot as the state initiative. See ibid. A national party's mere involvement in the strategic planning of fundraising for a state ballot initiative risks a determination that the national party is exercising indirect control of the state party. If that determination is made, the state party must abide by federal regulations. And this is so even if the federal candidate on the ballot, if there is one, runs unopposed or is so certain of election that the only voter interest is in the state and local campaigns. See ibid. Title I compels speech. Party officials who want to engage in activity such as fundraising must now speak magic words to ensure the solicitation cannot be interpreted as anything other than a solicitation for hard, not soft, money. See ibid. Title I prohibits the national parties from giving any sort of funds to nonprofit entities, even federally regulated hard money, and even if the party hoped to sponsor the interest group's exploration of a particular issue in advance of the party's addition of it to their platform. See new FECA § 323(d). By express terms, Title I imposes multiple different forms of spending caps on parties, candidates, and their agents. See new FECA §§ 323(a), (e), and (f). Title I allows state parties to raise quasi-soft-money Levin funds for use in activities that might affect a federal election; but the Act prohibits national parties from assisting state parties in developing and executing these fundraising plans, even when the parties seek only to advance state election interests. See new FECA § 323(b). Until today's consolidated cases, the Court has accepted but two principles to use in determining the validity of campaign finance restrictions. First is the anticorruption rationale. The principal concern, of course, is the agreement for a quid pro quo between officeholders (or candidates) and those who would seek to influence them. The Court has said the interest in preventing corruption allows limitations on receipt of the quid by a candidate or officeholder, regardless of who gives it or of the intent of the donor or officeholder. See Buckley, 424 U. S., at 26-27, 45-48; infra, at 291-294. Second, the Court has analyzed laws that classify on the basis of the speaker's corporate or union identity under the corporate speech rationale. The Court has said that the willing adoption of the entity form by corporations and unions justifies regulating them differently: Their ability to give candidates quids may be subject not only to limits but also to outright bans; their electoral speech may likewise be curtailed. See Austin, 494 U. S., at 659-660; Federal Election Comm'n v. National Right to Work Comm., 459 U. S. 197, 201-211 (1982). The majority today opens with rhetoric that suggests a conflation of the anticorruption rationale with the corporate speech rationale. See ante, at 115-118 (hearkening back to, among others, Elihu Root and his advocacy against the use of corporate funds in political campaigning). The conflation appears designed to cast the speech regulated here as unseemly corporate speech. The effort, however, is unwarranted, and not just because money is not per se the evil the majority thinks. Most of the regulations at issue, notably all of the Title I soft-money bans and the Title II coordination provisions, do not draw distinctions based on corporate or union status. Referring to the corporate speech rationale as if it were the linchpin of the case, when corporate speech is not primarily at issue, adds no force to the Court's analysis. Instead, the focus must be on Buckley 's anticorruption rationale and the First Amendment rights of individual citizens.
+In Buckley, the Court held that one, and only one, interest justified the significant burden on the right of association involved there: eliminating, or preventing, actual corruption or the appearance of corruption stemming from contributions to candidates. It is unnecessary to look beyond the Act's primary purpose —to limit the actuality and appearance of corruption resulting from large individual financial contributions —in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. 424 U. S., at 26. See also ibid. (concluding this corruption interest was sufficiently significant to sustain closely drawn interference with protected First Amendment rights). In parallel, Buckley concluded the expenditure limitations in question were invalid because they did not advance that same interest. See id., at 47-48 ([T]he independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process); see also id., at 45, 46. Thus, though Buckley subjected expenditure limits to strict scrutiny and contribution limits to less exacting review, it held neither could withstand constitutional challenge unless it was shown to advance the anticorruption interest. In these consolidated cases, unless Buckley is to be repudiated, we must conclude that the regulations further that interest before considering whether they are closely drawn or narrowly tailored. If the interest is not advanced, the regulations cannot comport with the Constitution, quite apart from the standard of review. Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates' and officeholders' receipt of what we can call the  quids  in the quid pro quo formulation. The Court rested its decision on the principle that campaign finance regulation that restricts speech without requiring proof of particular corrupt action withstands constitutional challenge only if it regulates conduct posing a demonstrable quid pro quo danger: To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Id., at 26-27. See also id., at 45 ([A]ssuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions. . .). That Buckley rested its decision on this quid pro quo standard is not a novel observation. We have held this was the case: The exception [of contribution limits being justified under the First Amendment] relates to the perception of undue influence of large contributions to a candidate: `To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.' Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297 (1981) (quoting Buckley, supra, at 26-27). See also Federal Election Comm'n v. Beaumont, 539 U. S. 146 (2003) (furthering this anticorruption rationale by upholding limits on contributions given directly to candidates); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 (2000) (same). Despite the Court's attempt to rely on language from cases like Shrink Missouri to establish that the standard defining corruption is broader than conduct that presents a quid pro quo danger, see ante, at 152-153, n. 48, in those cases the Court in fact upheld limits on conduct possessing quid pro quo dangers, and nothing more. See also infra, at 296. For example, the Shrink Missouri Court's distinguishing of what was at issue there and quid pro quo, in fact, shows only that it used the term quid pro quo to refer to actual corrupt, vote-buying exchanges, as opposed to interactions that possessed quid pro quo potential even if innocently undertaken. Thus, the Court said: [W]e spoke in Buckley of the perception of corruption `inherent in a regime of large individual financial contributions' to candidates for public office . . . as a source of concern almost equal to quid pro quo improbity. 528 U. S., at 390 (citations omitted). Thus, the perception of corruption that the majority now asserts is somehow different from the quid pro quo potential discussed in this opinion was created by an exchange featuring quid pro quo potential—contributions directly to a candidate. In determining whether conduct poses a quid pro quo danger the analysis is functional. In Buckley, the Court confronted an expenditure limitation provision that capped the amount of money individuals could spend on any activity intended to influence a federal election ( i.e., it reached to both independent and coordinated expenditures). See 424 U. S., at 46-47. The Court concluded that though the limitation reached both coordinated and independent expenditures, there were other valid FECA provisions that barred coordinated expenditures. Hence, the limit at issue only added regulation to independent expenditures. On that basis it concluded the provision was unsupported by any valid corruption interest. The conduct to which it added regulation (independent expenditures) posed no quid pro quo danger. See ibid. Placing Buckley 's anticorruption rationale in the context of the federal legislative power yields the following rule: Congress' interest in preventing corruption provides a basis for regulating federal candidates' and officeholders' receipt of quids, whether or not the candidate or officeholder corruptly received them. Conversely, the rule requires the Court to strike down campaign finance regulations when they do not add regulation to actual or apparent quid pro quo arrangements. Id., at 45. The Court ignores these constitutional bounds and in effect interprets the anticorruption rationale to allow regulation not just of actual or apparent quid pro quo arrangements, ibid., but of any conduct that wins goodwill from or influences a Member of Congress. It is not that there is any quarrel between this opinion and the majority that the inquiry since Buckley has been whether certain conduct creates undue influence. See ante, at 154. On that we agree. The very aim of Buckley 's standard, however, was to define undue influence by reference to the presence of quid pro quo involving the officeholder. The Court, in contrast, concludes that access, without more, proves influence is undue. Access, in the Court's view, has the same legal ramifications as actual or apparent corruption of officeholders. This new definition of corruption sweeps away all protections for speech that lie in its path. The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise: More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing `undue influence on an officeholder's judgment, and the appearance of such influence.' [ Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 441 (2001) (Colorado II) ]. Many of the `deeply disturbing examples' of corruption cited by this Court in Buckley to justify FECA's contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the `appearance of such influence.' Colorado II, supra, at 441; see also [ Buckley v. Valeo, 519 F. 2d 821, 838 (CADC 1975)]. The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See [251 F. Supp. 2d 176, 492-506 (DC 2003) (Kollar-Kotelly, J.)]. Ante, at 150 (some internal citations omitted). The majority notes that access flowed from the regulated conduct at issue in Buckley and its progeny, then uses that fact as the basis for concluding that access peddling by the parties equals corruption by the candidates. That conclusion, however, is tenable only by a quick and subtle shift, and one that breaks new ground: The majority ignores the quid pro quo nature of the regulated conduct central to our earlier decisions. It relies instead solely on the fact that access flowed from the conduct. To ignore the fact that in Buckley the money at issue was given to candidates, creating an obvious quid pro quo danger as much as it led to the candidates also providing access to the donors, is to ignore the Court's comments in Buckley that show quid pro quo was of central importance to the analysis. See 424 U. S., at 26-27, 45. The majority also ignores that in Buckley, and ever since, those party contributions that have been subject to congressional limit were not general party-building contributions but were only contributions used to influence particular elections. That is, they were contributions that flowed to a particular candidate's benefit, again posing a quid pro quo danger. And it ignores that in Colorado II, the party spending was that which was coordinated with a particular candidate, thereby implicating quid pro quo dangers. In all of these ways the majority breaks the necessary tether between quid and access and assumes that access, all by itself, demonstrates corruption and so can support regulation. See also ante, at 156 ([L]arge soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put). Access in itself, however, shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular. By equating vague and generic claims of favoritism or influence with actual or apparent corruption, the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the rationale that is Buckley 's very foundation. The generic favoritism or influence theory articulated by the Court is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any given action might be favored by any given person, so by the Court's reasoning political loyalty of the purest sort can be prohibited. There is no remaining principled method for inquiring whether a campaign finance regulation does in fact regulate corruption in a serious and meaningful way. We are left to defer to a congressional conclusion that certain conduct creates favoritism or influence. Though the majority cites common sense as the foundation for its definition of corruption, see ante, at 145, 152, in the context of the real world only a single definition of corruption has been found to identify political corruption successfully and to distinguish good political responsiveness from bad—that is quid pro quo. Favoritism and influence are not, as the Government's theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. Quid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid. The majority attempts to mask its extension of Buckley under claims that BCRA prevents the appearance of corruption, even if it does not prevent actual corruption, since some assert that any donation of money to a political party is suspect. See ante, at 149-152. Under Buckley 's holding that Congress has a valid interest in stemming the reality or appearance of corruption, 424 U. S., at 47-48, however, the inquiry does not turn on whether some persons assert that an appearance of corruption exists. Rather, the inquiry turns on whether the Legislature has established that the regulated conduct has inherent corruption potential, thus justifying the inference that regulating the conduct will stem the appearance of real corruption. Buckley was guided and constrained by this analysis. In striking down expenditure limits the Court in Buckley did not ask whether people thought large election expenditures corrupt, because clearly at that time many persons, including a majority of Congress and the President, did. See id., at 25 (According to the parties and amici, the primary interest served . . . by the Act as a whole, is the prevention of corruption and the appearance of corruption). Instead, the Court asked whether the Government had proved that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential. See id., at 46. The Buckley decision made this analysis even clearer in upholding contribution limitations. It stated that even if actual corrupt contribution practices had not been proved, Congress had an interest in regulating the appearance of corruption that is inherent in a regime of large individual financial contributions. Id., at 27 (discussing contributions to candidates). See also id., at 28, 30. The quid pro quo nature of candidate contributions justified the conclusion that the contributions pose inherent corruption potential; and this in turn justified the conclusion that their regulation would stem the appearance of real corruption. From that it follows that the Court today should not ask, as it does, whether some persons, even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to them. Following Buckley, it should instead inquire whether the conduct now prohibited inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the appearance of quid pro quo corruption.
+Sections 323(a), (b), (d), and (f), 2 U. S. C. A. §§ 441i(a), (b), (d), and (f) (Supp. 2003), cannot stand because they do not add regulation to conduct that poses a demonstrable quid pro quo danger. They do not further Buckley 's corruption interest. The majority, with a broad brush, paints § 323(a) as aimed at limiting contributions possessing federal officeholder corruption potential. From there it would justify § 323's remaining provisions as necessary complements to ensure the national parties cannot circumvent § 323(a)'s prohibitions. The broad brush approach fails, however, when the provisions are reviewed under Buckley 's proper definition of corruption potential. On its face § 323(a) does not regulate federal candidates' or officeholders' receipt of quids because it does not regulate contributions to, or conduct by, candidates or officeholders. See BCRA § 101(a) (setting out new FECA § 323(a): National parties may not solicit, receive, or direct to another person. . . or spend any [soft money]). The realities that underlie the statute, furthermore, do not support the majority's interpretation. Before BCRA's enactment, parties could only use soft money for a candidate's benefit ( e. g., through issue ads, which all parties now admit may influence elections) independent of that candidate. And, as discussed later, § 323(e) validly prohibits federal candidate and officeholder solicitation of soft-money party donations. See infra, at 314. Section 323(a), therefore, only adds regulation to soft-money party donations not solicited by, or spent in coordination with, a candidate or officeholder. These donations (noncandidate or officeholder solicited soft-money party donations that are independently spent) do not pose the quid pro quo dangers that provide the basis for restricting protected speech. Though the Government argues § 323(a) does regulate federal candidates' and officeholders' receipt of quids, it bases its argument on this flawed reasoning: (1) [F]ederal elected officeholders are inextricably linked to their political parties, Brief for Appellee/Cross Appellant FEC et al. in No. 02-1674 et al., p. 21; cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 626 (1996) (Colorado I) (KENNEDY, J., concurring in judgment and dissenting in part). (2) All party receipts must be connected to, and must create, corrupt donor favoritism among these officeholders. (3) Therefore, regulation of party receipts equals regulation of quids to the party's officeholders. The reasoning is flawed because the Government's reliance on reasoning parallel to the Colorado I concurrence only establishes the first step in its chain of logic: that a party is a proxy for its candidates generally. It does not establish the second step: that as a proxy for its candidates generally, all moneys the party receives (not just candidate solicited, soft-money donations, or donations used in coordinated activity) represent quids for all the party's candidates and officeholders. The Government's analysis is inconsistent with what a majority of the Justices, in different opinions, have said. JUSTICE THOMAS' dissent in Federal Election Comm'n v. Colorado Republican Campaign Comm., 533 U. S. 431, 476-477 (2001) (Colorado II) , taken together with JUSTICE BREYER'S opinion announcing the judgment of the Court in Colorado I, rebuts the second step of the Government's argument. JUSTICE THOMAS demonstrated that a general party-candidate corruption linkage does not exist. As he pointed out: The dearth of evidence [of such corruption] is unsurprising in light of the unique relationship between a political party and its candidates: `The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes.' If coordinated expenditures help achieve this aim, the achievement `does not . . . constitute a subversion of the political process.' Colorado II, supra, at 476-477 (citations omitted). JUSTICE BREYER reached the same conclusion about the corrupting effect general party receipts could have on particular candidates, though on narrower grounds. He concluded that independent party conduct lacks quid pro quo corruption potential. See Colorado I, 518 U.S., at 617-618; id., at 617 (If anything, an independent [party] expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor); id., at 616 ([T]he opportunity for corruption posed by [soft-money] contributions is, at best, attenuated because they may not be used for the purposes of influencing a federal election under FECA). These opinions establish that independent party activity, which by definition includes independent receipt and spending of soft money, lacks a possibility for quid pro quo corruption of federal officeholders. This must be all the more true of a party's independent receipt and spending of soft-money donations neither directed to nor solicited by a candidate. The Government's premise is also unsupported by the record before us. The record confirms that soft-money party contributions, without more, do not create quid pro quo corruption potential. As a conceptual matter, generic party contributions may engender good will from a candidate or officeholder because, as the Government says: [A] Member of Congress can be expected to feel a natural temptation to favor those persons who have helped the `team,' Brief for Appellee/Cross-Appellant FEC et al. in No. 02-1674 et al., p. 33. Still, no Member of Congress testified this favoritism changed voting behavior. The piece of record evidence the Government puts forward on this score comes by way of deposition testimony from former Senator Simon and Senator Feingold. See 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.). Senator Simon reported an unidentified colleague indicated frustration with Simon's opposition to legislation that would benefit a party contributor on the grounds that `we've got to pay attention to who is buttering our bread' and testified he did not think there was any question `this' ( i. e. , donors getting their way) was why the legislation passed. See App. 805. Senator Feingold, too, testified an unidentified colleague suggested he support the legislation because `they [ i. e. , the donor] just gave us [ i. e. , the party] $100,000.' 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.). That evidence in fact works against the Government. These two testifying Senators expressed disgust toward the favoring of a soft-money giver, and not the good will one would have expected under the Government's theory. That necessarily undercuts the inference of corruption the Government would have us draw from the evidence. Even more damaging to the Government's argument from the testimony is the absence of testimony that the Senator who allegedly succumbed to corrupt influence had himself solicited soft money from the donor in question. Equally, there is no indication he simply favored the company with his vote because it had, without any involvement from him, given funds to the party to which he belonged. This fact is crucial. If the Senator himself had been the solicitor of the soft-money funds in question, the incident does nothing more than confirm that Congress' efforts at campaign finance reform ought to be directed to conduct that implicates quid pro quo relationships. Only if there was some evidence that the officeholder had not solicited funds from the donor could the Court extrapolate from this episode that general party contributions function as quids , inspiring corrupt favoritism among party members. The episode is the single one of its type reported in the record and does not seem sufficient basis for major incursions into settled practice. Given the Government's claim that the corrupt favoritism problem is widespread, its inability to produce more than a single instance purporting to illustrate the point demonstrates the Government has not fairly characterized the general attitudes of Members toward soft-money donors from whom they have not solicited. Other aspects of the record confirm the Government has not produced evidence that Members corruptly favor soft-money donors to their party as a per se matter. Most testimony from which the Government would have the Court infer corruption is testimony that Members are rewarded by their parties for soliciting soft money. See id., at 438-521 (Kollar-Kotelly, J.). This says nothing about how Members feel about a party's soft-money donors from whom they have not solicited. Indeed, record evidence on this point again cuts against the Government: `As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise.' Id., at 482 (testimony of former Senator Boren; see 6-R Defs. Exhs., Tab 8, ¶ 8). Thus, one of the handful of Senators on whom the Government relies to make its case candidly admits the pressure of appeasing soft-money donors derives from the Members' solicitation of donors, not from those donors' otherwise giving to their party. In light of all this, § 323(a) has no valid anticorruption interest. The anticircumvention interests the Government offers in defense of §§ 323(b), (d), and (f) must also fall with the interests asserted to justify § 323(a). Any anticircumvention interest can be only as compelling as the interest justifying the underlying regulation. None of these other sections has an independent justifying interest. Section 323(b), for example, adds regulation only to activity undertaken by a state party. In the District Court two of the three judges found as fact that particular state and local parties exist primarily to participate in state and local elections, that they spend the majority of their resources on those elections, and that their voter registration and get-out-the-vote (GOTV) activities, in particular, are directed primarily at state and local elections. See 251 F. Supp. 2d, at 301-302 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 837-840 (Leon, J.). These findings, taken together with BCRA's other, valid prohibitions barring coordination with federal candidates or officeholders and their soft-money solicitation, demonstrate that § 323(b) does not add regulation to conduct that poses a danger of a federal candidate's or officeholder's receipt of quids. Even § 323(b)'s narrowest regulation, which bans state party soft-money funded ads that (1) refer to a clearly identified federal candidate, and (2) either support or attack any candidate for the office of the clearly mentioned federal candidate, see new FECA § 301(20)(A)(iii), fails the constitutional test. The ban on conduct that by the statute's own definition may serve the interest of a federal candidate suggests to the majority that it is conduct that poses quid pro quo danger for federal candidates or officeholders. Yet, even this effect — considered after excising the coordination and candidate-solicited funding aspects elsewhere prohibited by BCRA §§ 202 and 214(a) and new FECA § 323(a) — poses no danger of a federal candidate's or officeholder's receipt of a quid. That conduct is no different from an individual's independent expenditure referring to and supporting a clearly identified candidate — and this poses no regulable danger. Section 323(d), which governs relationships between the national parties and nonprofit groups, fails for similar reasons. It is worth noting that neither the record nor our own experience tells us how significant these funds transfers are at this time. It is plain, however, that the First Amendment ought not to be manipulated to permit Congress to forbid a political party from aiding other speakers whom the party deems more effective in addressing discrete issues. One of the central flaws in BCRA is that Congress is determining what future course the creation of ideas and the expression of views must follow. Its attempt to foreclose new and creative partnerships for speech, as illustrated here, is consistent with neither the traditions nor principles of our free speech guarantee, which insists that the people, and not the Congress, decide what modes of expression are the most legitimate and effective. The majority's upholding § 323(d) is all the more unsettling because of the way it ignores the Act as Congress wrote it. Congress said national parties shall not solicit any funds for, or make or direct any donations to, § 501(c) nonprofit organizations that engage in federal election activity or to § 527 political committees. The Court, however, reads out the word any and construes the words funds and donations to mean soft-money funds and soft-money donations. See ante, at 180 (This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole). The Court's statutory amendment may be consistent with its anti-soft-money rationale; it is not, however, consistent with the plain and unavoidable statutory text Congress has given us. Even as construed by the Court, moreover, it is invalid. The majority strains to save the provision from what must seem to it an unduly harsh First Amendment. It does so by making a legislative determination Congress chose not to make: to prefer hard money to soft money within the construct of national party relationships with nonprofit groups. Congress gave no indication of a preference to regulate either hard money or soft in this context. Rather, it simply proscribed all transfers of money between the two organizations and all efforts by the national parties to raise any money on the nonprofit groups' behalf. The question the Court faces is not which part of a text to sever and strike, but whether Congress can prohibit such transfers altogether. The answer, as the majority recognizes, is no. See ante , at 179 ([P]rohibiting parties from donating funds already raised in compliance with FECA does little to further Congress' goal of preventing corruption or the appearance of corruption of federal candidates and officeholders). Though § 323(f) in effect imposes limits on candidate contributions, it does not address federal candidate and officeholder contributions. Yet it is the possibility of federal officeholder quid pro quo corruption potential that animates Buckley 's rule as it relates to Acts of Congress (as opposed to Acts of state legislatures). See 424 U.S., at 13 (The constitutional power of Congress to regulate federal elections is well established). When one recognizes that § § 323(a), (b), (d), and (f) do not serve the interest the anticorruption rationale contemplates, Title I's entirety begins to look very much like an incumbency protection plan. See J. Miller, Monopoly Politics 84-101 (1999) (concluding that regulations limiting election fundraising and spending constrain challengers more than incumbents). That impression is worsened by the fact that Congress exempted its officeholders from the more stringent prohibitions imposed on party officials. Compare new FECA § 323(a) with new FECA § 323(e). Section 323(a) raises an inflexible bar against soft-money solicitation, in any way, by parties or party officials. Section 323(e), in contrast, enacts exceptions to the rule for federal officeholders (the very centerpiece of possible corruption), and allows them to solicit soft money for various uses and organizations. The law in some respects even weakens the regulation of federal candidates and officeholders. Under former law, officeholders were understood to be limited to receipt of hard money by their campaign committees. See 2 U.S.C. § § 431, 441a (setting out the pre-BCRA FECA regime). BCRA, however, now allows them and their campaign committees to receive soft money that fits the hard-money source-and-amount restrictions, so long as the officeholders direct that money on to other nonfederal candidates. See new FECA § 323(e)(1)(B). The majority's characterization of this weakening of the regime as tightly constrain[ing] candidates, ante, at 181, n. 70, is a prime example of its unwillingness to confront Congress' own interest or the persisting fact that the regulations violate First Amendment freedoms. The more lenient treatment accorded to incumbency-driven politicians than to party officials who represent broad national constituencies must render all the more suspect Congress' claim that the Act's sole purpose is to stop corruption. The majority answers this charge by stating the obvious, that § 323(e) applies to both officeholders and candidates.  Ante, at 185, n. 72. The controlling point, of course, is the practical burden on challengers. That the prohibition applies to both incumbents and challengers in no way establishes that it burdens them equally in that regard. Name recognition and other advantages held by incumbents ensure that as a general rule incumbents will be advantaged by the legislation the Court today upholds. The Government identifies no valid anticorruption interest justifying §§ 323(a), (b), (d), and (f). The very nature of the restrictions imposed by these provisions makes one all the more skeptical of the Court's explanation of the interests at stake. These provisions cannot stand under the First Amendment.
+Ultimately, only one of the challenged Title I provisions satisfies Buckley 's anticorruption rationale and the First Amendment's guarantee. It is § 323(e). This provision is the sole aspect of Title I that is a direct and necessary regulation of federal candidates' and officeholders' receipt of quids. Section 323(e) governs candidate[s], individual[s] holding Federal office, agent[s] of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office. 2 U.S.C.A. § 441i(e) (Supp. 2003). These provisions, and the regulations that follow, limit candidates' and their agents' solicitation of soft money. The regulation of a candidate's receipt of funds furthers a constitutionally sufficient interest. More difficult, however, is the question whether regulation of a candidate's solicitation of funds also furthers this interest if the funds are given to another. I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates' or officeholders' solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley 's anticorruption rationale.
+It is common ground between the majority and this opinion that a speech-suppressing campaign finance regulation, even if supported by a sufficient Government interest, is unlawful if it cannot satisfy our designated standard of review. See ante , at 134-137. In Buckley , we applied closely drawn scrutiny to contribution limitations and strict scrutiny to expenditure limitations. Compare 424 U.S., at 25, with id., at 44-45. Against that backdrop, the majority assumes that because Buckley applied the rationale in the context of contribution and expenditure limits, its application gives Congress and the Court the capacity to classify any challenged campaign finance regulation as either a contribution or an expenditure limit. Thus, it first concludes Title I's regulations are contribution limits and then proceeds to apply the lesser scrutiny. Complex as its provisions may be, § 323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders. Ante, at 138. Though the majority's analysis denies it, Title I's dynamics defy this facile, initial classification. Title I's provisions prohibit the receipt of funds; and in most instances, but not all, this can be defined as a contribution limit. They prohibit the spending of funds; and in most instances this can be defined as an expenditure limit. They prohibit the giving of funds to nonprofit groups; and this falls within neither definition as we have ever defined it. Finally, they prohibit fundraising activity; and the parties dispute the classification of this regulation (the challengers say it is core political association, while the Government says it ultimately results only in a limit on contribution receipts). The majority's classification overlooks these competing characteristics and exchanges Buckley 's substance for a formulaic caricature of it. Despite the parties' and the majority's best efforts on both sides of the question, it ignores reality to force these regulations into one of the two legal categories as either contribution or expenditure limitations. Instead, these characteristics seem to indicate Congress has enacted regulations that are neither contribution nor expenditure limits, or are perhaps both at once. Even if the laws could be classified in broad terms as only contribution limits, as the majority is inclined to do, that still leaves the question what contribution limits can include if they are to be upheld under Buckley. Buckley 's application of a less exacting review to contribution limits must be confined to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder. Any broader definition of the category contradicts Buckley 's quid pro quo rationale and overlooks Buckley 's language, which contemplates limits on contributions to a candidate or campaign committee in explicit terms. See 424 U.S., at 13 (applying less exacting review to contribution . . . limitations in the Act prohibit[ing] individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign); id., at 45 ([T]he contribution limitation[s]' [apply a] total ban on the giving of large amounts of money to candidates). See also id., at 20, 25, 28. The Court, it must be acknowledged, both in Buckley and on other occasions, has described contribution limits due some more deferential review in less than precise terms. At times it implied that donations to political parties would also qualify as contributions whose limitation too would be subject to less exacting review. See id., at 23-24, n. 24 ([T]he general understanding of what constitutes a political contribution[:] Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution). See also Federal Election Comm'n v. Beaumont , 539 U.S., at 161 (`[C]ontributions may result in political expression if spent by a candidate or an association' (quoting Buckley, supra , at 21)). These seemingly conflicting statements are best reconciled by reference to Buckley 's underlying rationale for applying less exacting review. In a similar, but more imperative, sense proper application of the standard of review to regulations that are neither contribution nor expenditure limits (or which are both at once) can only be determined by reference to that rationale. Buckley 's underlying rationale is this: Less exacting review applies to Government regulations that significantly interfere with First Amendment rights of association. But any regulation of speech or associational rights creating markedly greater interference than such significant interference receives strict scrutiny. Unworkable and ill advised though it may be, Buckley unavoidably sets forth this test: Even a `significant interference with protected rights of political association' may be sustained if the State demonstrates [1] a sufficiently important interest and [2] employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda , [419 U.S. 477, 488 (1975)]; NAACP v. Button, [371 U.S. 415, 438 (1963)]; Shelton v. Tucker, [364 U.S. 479, 488 (1960)]. 424 U.S., at 25. The markedly greater burden on basic freedoms [referring to `the freedom of speech and association'] caused by [expenditure limits] thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of [the expenditure limits] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression. Id., at 44-45. [] The majority, oddly enough, first states this standard with relative accuracy, but then denies it. Compare: The relevant inquiry [in determining the level of scrutiny] is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not, ante , at 138-139, with: None of this is to suggest that the alleged associational burdens imposed on parties by § 323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny. Ante , at 141. The majority's attempt to separate out how burdens on speech rights and burdens on associational rights affect the standard of review is misguided. It is not even true to Buckley 's unconventional test. Buckley, as shown in the quotations above, explained the lower standard of review by reference to the level of burden on associational rights, and it explained the need for a higher standard of review by reference to the higher burdens on both associational and speech rights. In light of Buckley 's rationale, and in light of this Court's ample precedent affirming that burdens on speech necessitate strict scrutiny review, see 424 U.S., at 44-45 ([E]xacting scrutiny [applies] to limitations on core First Amendment rights of political expression), closely drawn scrutiny should be employed only in review of a law that burdens rights of association, and only where that burden is significant, not markedly greater. Since the Court professes not to repudiate Buckley , it was right first to say we must determine how significant a burden BCRA's regulations place on First Amendment rights, though it should have specified that the rights implicated are those of association. Its later denial of that analysis flatly contradicts Buckley. The majority makes Buckley 's already awkward and imprecise test all but meaningless in its application. If one is viewing BCRA through Buckley 's lens, as the majority purports to do, one must conclude the Act creates markedly greater associational burdens than the significant burden created by contribution limitations and, unlike contribution limitations, also creates significant burdens on speech itself. While BCRA contains federal contribution limitations, which significantly burden association, it goes even further. The Act entirely reorders the nature of relations between national political parties and their candidates, between national political parties and state and local parties, and between national political parties and nonprofit organizations. The many and varied aspects of Title I's regulations impose far greater burdens on the associational rights of the parties, their officials, candidates, and citizens than do regulations that do no more than cap the amount of money persons can contribute to a political candidate or committee. The evidence shows that national parties have a long tradition of engaging in essential associational activities, such as planning and coordinating fundraising with state and local parties, often with respect to elections that are not federal in nature. This strengthens the conclusion that the regulations now before us have unprecedented impact. It makes impossible, moreover, the contrary conclusion — which the Court's standard of review determination necessarily implies — that BCRA's soft-money regulations will not much change the nature of association between parties, candidates, nonprofit groups, and the like. Similarly, Title I now compels speech by party officials. These officials must be sure their words are not mistaken for words uttered in their official capacity or mistaken for soliciting prohibited soft, and not hard, money. Few interferences with the speech, association, and free expression of our people are greater than attempts by Congress to say which groups can or cannot advocate a cause, or how they must do it. Congress has undertaken this comprehensive reordering of association and speech rights in the name of enforcing contribution limitations. Here, however, as in Buckley , [t]he markedly greater burden on basic freedoms caused by [BCRA's pervasive regulation] cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Ibid. BCRA fundamentally alters, and thereby burdens, protected speech and association throughout our society. Strict scrutiny ought apply to review of its constitutionality. Under strict scrutiny, the congressional scheme, for the most part, cannot survive. This is all but acknowledged by the Government, which fails even to argue that strict scrutiny could be met.
+Because most of the Title I provisions discussed so far do not serve a compelling or sufficient interest, the standard of review analysis is only dispositive with respect to new FECA § 323(e). As to § 323(e), 2 U.S.C.A. § 441i(e) (Supp. 2003), I agree with the Court that this provision withstands constitutional scrutiny. Section 323(e) is directed solely to federal candidates and their agents; it does not ban all solicitation by candidates, but only their solicitation of soft-money contributions; and it incorporates important exceptions to its limits (candidates may receive, solicit, or direct funds that comply with hard-money standards; candidates may speak at fundraising events; candidates may solicit or direct unlimited funds to organizations not involved with federal election activity; and candidates may solicit or direct up to $20,000 per individual per year for organizations involved with certain federal election activity ( e. g., GOTV, voter registration)). These provisions help ensure that the law is narrowly tailored to satisfy First Amendment requirements. For these reasons, I agree § 323(e) is valid.
+Though these sections do not survive even the first test of serving a constitutionally valid interest, it is necessary as well to examine the vast overbreadth of the remainder of Title I, so the import of the majority's holding today is understood. Sections 323(a), (b), (d), and (f), 2 U.S.C.A. § § 441i(a), (b), (d), and (f) (Supp. 2003), are not narrowly tailored, cannot survive strict scrutiny, and cannot even be considered closely drawn, unless that phrase is emptied of all meaning. First, the sections all possess fatal overbreadth. By regulating conduct that does not pose quid pro quo dangers, they are incursions on important categories of protected speech by voters and party officials. At the next level of analytical detail, § 323(a) is overly broad as well because it regulates all national parties, whether or not they present candidates in federal elections. It also regulates the national parties' solicitation and direction of funds in odd-numbered years when only state and local elections are at stake. Likewise, while § 323(b) might prohibit some state party conduct that would otherwise be undertaken in conjunction with a federal candidate, it reaches beyond that to a considerable range of campaign speech by the state parties on non-federal issues. A state or local party might want to say: The Democratic slate for state assembly opposes President Bush's tax policy . . . . Elect the Republican slate to tell Washington, D.C. we don't want higher taxes. Section 323(b) encompasses this essential speech and prohibits it equally with speech that poses a federal officeholder quid quo pro danger. Other predictable political circumstances further demonstrate § 323(b)'s overbreadth. It proscribes the use of soft money for all state party voter registration efforts occurring within 120 days of a federal election. So, the vagaries of election timing, not any real interest related to corruption, will control whether state parties can spend nonfederally regulated funds on ballot efforts. This overreaching contradicts important precedents that recognize the need to protect political speech for campaigns related to ballot measures. See generally Citizens Against Rent Control/ Coalition for Fair Housing v. Berkeley, 454 U.S. 290 (1981); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Section 323(b) also fails the narrow tailoring requirement because less burdensome regulatory options were available. The Government justifies the provision as an attempt to stop national parties from circumventing the soft-money allocation constraints they faced under the prior FECA regime. We are told that otherwise the national parties would let the state parties spend money on their behalf. If, however, the problem were avoidance of allocation rates, Congress could have made any soft money transferred by a national party to a state party subject to the allocation rates that governed the national parties' similar use of the money. Nor is § 323(d) narrowly tailored. The provision, proscribing any solicitation or direction of funds, prohibits the parties from even distributing or soliciting regulated money ( i. e. , hard money). It is a complete ban on this category of speech. To prevent circumvention of contribution limits by imposing a complete ban on contributions is to burden the circumventing conduct more severely than the underlying suspect conduct could be burdened. By its own terms, the statute prohibits speech that does not implicate federal elections. The provision prohibits any transfer to a § 527 organization, irrespective of whether the organization engages in federal election activity. This is unnecessary, as well, since Congress enacted a much narrower provision in § 323(a)(2) to prevent circumvention by the parties via control of other organizations. Section 323(a)(2) makes any entity that is directly or indirectly . . . controlled by the national parties subject to the same § 323(a) prohibitions as the parties themselves. 2 U.S.C.A. § 441i (Supp. 2003). Section 323(f), too, is not narrowly tailored or even close to it. It burdens a substantial body of speech and expression made entirely independent of any federal candidate. The record, for example, contains evidence of Alabama Attorney General Pryor's reelection flyers showing a picture of Pryor shaking hands with President Bush and stating: Bush appointed Pryor to be Alabama co-chairman of the George W. Bush for President campaign. A host of circumstances could make such statements advisable for state candidates to use without any coordination with a federal candidate. Section 323(f) incorporates no distinguishing feature, such as an element of coordination, to ensure First Amendment protected speech is not swept up within its bounds. Compared to the narrowly tailored effort of § 323(e), which addresses in direct and specific terms federal candidates' and officeholders' quest for dollars, these sections cast a wide net not confined to the critical categories of federal candidate or officeholder involvement. They are not narrowly tailored; they are not closely drawn; they flatly violate the First Amendment; and even if they do encompass some speech that poses a regulable quid pro quo danger, that little assurance does not justify or permit a regime which silences so many legitimate voices in this protected sphere.
+Other BCRA Title II sections require analysis alongside the provisions of Title I, for they, too, are regulations that principally operate within the ambit of Buckley 's anticorruption principle. BCRA §§ 202 and 214 are two of these provisions. They involve the Act's new definition of coordination. BCRA § 213 is another. It institutes a new system in which the parties are forced to choose between two different types of relationships with their candidates.
+I agree with the majority that §§ 214(b) and (c) do not merit our review because they are not now justiciable. See ante, at 223. I disagree, however, with the majority's view that § 214(a), § 214's sole justiciable provision, is valid. Nor can I agree that § 202 is valid in its entirety. Section 214(a) amends FECA to define, as hard-money contributions to a political party, expenditures an individual makes in concert with the party. See ante, at 219. This provision, in my view, must fall. As the earlier discussion of Title I explains, individual contributions to the political parties cannot be capped in the soft-money context. Since an individual's soft-money contributions to a party may not be limited, it follows with even greater force that an individual's expenditure of money, coordinated with the party for activities on which the party could spend unlimited soft money, cannot be capped. This conclusion emerges not only from an analysis of Title I but also from Colorado I. There, JUSTICE BREYER'S opinion announcing the judgment of the Court concluded political parties had a constitutional right to engage in independent advocacy on behalf of a candidate. 518 U.S. 604 (1996). That parties can spend unlimited soft money on this activity follows by necessary implication. A political party's constitutional right to spend money on advocacy independent of a candidate is burdened by § 214(a) in a direct and substantial way. The statute commands the party to refrain from coordinating with an individual engaging in advocacy even if the individual is acting independently of the candidate. Section 202 functions in a manner similar to the operation of § 214(a). It directs that when persons make electioneering communication, see new FECA § 304(f)(3), 2 U.S.C.A. § 434(f)(3) (Supp. 2003), in a coordinated fashion with a candidate or a party, the coordinated communication expense must be treated as a hard-money contribution by the person to that candidate or party. The trial court erroneously believed it needed to determine whether § 304's definition of electioneering communications was itself unconstitutional to assess this provision. While a statutory definition may lead to an unconstitutional result under one application, it may lead to a constitutional result under another. Compare infra this page and 321-322 with infra, at 333-337. It is unhelpful to talk in terms of the definition being unconstitutional or constitutional when the only relevant question is whether, as animated by a substantive prohibition, here § 202, the definition leads to unconstitutional results. The other Title II provisions that employ § 304's electioneering communication definition are analyzed below, within the context of the corporate speech rationale and the disclosure provisions. Section 202, however, must be judged under the anticorruption rationale because it does not distinguish according to corporate or union status, and it does not involve disclosure requirements. Section 202 simply limits the speech of all persons. Section 202 does satisfy Buckley 's anticorruption rationale in one respect: It treats electioneering communications expenditures made by a person in coordination with a candidate as hard-money contributions to that candidate. For many of the same reasons that § 323(e) is valid, § 202, in this single way, is valid: It regulates conduct that poses a quid pro quo danger — satisfaction of a candidate's request. Insofar as § 202 regulates coordination with a political party, however, it suffers from the same flaws as § 214(a). Congress has instructed us, as much as possible, to sever any infirm portions of statutory text from the valid parts, see BCRA § 401. Following that instruction, I would uphold § 202's text as to its candidate coordination regulation (the first clause of new FECA § 315(a)(7)(C)(ii), 2 U.S.C.A. § 441a(a)(7)(C)(ii) (Supp. 2003), but rule invalid its text that applies the coordination provision to political parties. This provision includes an advance contracts aspect as well. That aspect of the provision, on its own, would be invalid, for many of the reasons discussed below with respect to the advance disclosure requirements embodied in BCRA § § 201 and 212. See infra, at 321-322.
+The final aspect of BCRA that implicates Buckley 's anticorruption rationale is § 213, the forced choice provision. The majority concludes § 213 violates the Constitution. I agree and write on this aspect of the case to point out that the section's unlawfulness flows not from the unique contours of the statute that settle how much political parties may spend on their candidate's campaign, see ante, at 215-219, but from its raw suppression of constitutionally protected speech. Section 213 unconstitutionally forces the parties to surrender one of two First Amendment rights. We affirmed that parties have a constitutionally protected right to make independent expenditures in Colorado I. I continue to believe, moreover, that even under Buckley a political party has a protected right to make coordinated expenditures with its candidates. See Colorado II , 533 U.S., at 466-482 (THOMAS, J., dissenting). Our well-established constitutional tradition respects the role parties play in the electoral process and in stabilizing our representative democracy. There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. Davis v. Bandemer , 478 U.S. 109, 144-145 (1986) (O'CONNOR, J., concurring in judgment). This role would be undermined in the absence of a party's ability to coordinate with candidates. Cf. Colorado I, supra, at 629 (KENNEDY, J., concurring in judgment and dissenting in part) (parties can give effect to their views only by selecting and supporting candidates). Section 213's command that the parties abandon one First Amendment right or the other offends the Constitution even more than a command that a person choose between a First Amendment right and a statutory right.",title i and coordination provisions
+595,131149,2,1,"In Buckley, the Court held that one, and only one, interest justified the significant burden on the right of association involved there: eliminating, or preventing, actual corruption or the appearance of corruption stemming from contributions to candidates. It is unnecessary to look beyond the Act's primary purpose —to limit the actuality and appearance of corruption resulting from large individual financial contributions —in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. 424 U. S., at 26. See also ibid. (concluding this corruption interest was sufficiently significant to sustain closely drawn interference with protected First Amendment rights). In parallel, Buckley concluded the expenditure limitations in question were invalid because they did not advance that same interest. See id., at 47-48 ([T]he independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process); see also id., at 45, 46. Thus, though Buckley subjected expenditure limits to strict scrutiny and contribution limits to less exacting review, it held neither could withstand constitutional challenge unless it was shown to advance the anticorruption interest. In these consolidated cases, unless Buckley is to be repudiated, we must conclude that the regulations further that interest before considering whether they are closely drawn or narrowly tailored. If the interest is not advanced, the regulations cannot comport with the Constitution, quite apart from the standard of review. Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates' and officeholders' receipt of what we can call the  quids  in the quid pro quo formulation. The Court rested its decision on the principle that campaign finance regulation that restricts speech without requiring proof of particular corrupt action withstands constitutional challenge only if it regulates conduct posing a demonstrable quid pro quo danger: To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Id., at 26-27. See also id., at 45 ([A]ssuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions. . .). That Buckley rested its decision on this quid pro quo standard is not a novel observation. We have held this was the case: The exception [of contribution limits being justified under the First Amendment] relates to the perception of undue influence of large contributions to a candidate: `To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.' Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 297 (1981) (quoting Buckley, supra, at 26-27). See also Federal Election Comm'n v. Beaumont, 539 U. S. 146 (2003) (furthering this anticorruption rationale by upholding limits on contributions given directly to candidates); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 (2000) (same). Despite the Court's attempt to rely on language from cases like Shrink Missouri to establish that the standard defining corruption is broader than conduct that presents a quid pro quo danger, see ante, at 152-153, n. 48, in those cases the Court in fact upheld limits on conduct possessing quid pro quo dangers, and nothing more. See also infra, at 296. For example, the Shrink Missouri Court's distinguishing of what was at issue there and quid pro quo, in fact, shows only that it used the term quid pro quo to refer to actual corrupt, vote-buying exchanges, as opposed to interactions that possessed quid pro quo potential even if innocently undertaken. Thus, the Court said: [W]e spoke in Buckley of the perception of corruption `inherent in a regime of large individual financial contributions' to candidates for public office . . . as a source of concern almost equal to quid pro quo improbity. 528 U. S., at 390 (citations omitted). Thus, the perception of corruption that the majority now asserts is somehow different from the quid pro quo potential discussed in this opinion was created by an exchange featuring quid pro quo potential—contributions directly to a candidate. In determining whether conduct poses a quid pro quo danger the analysis is functional. In Buckley, the Court confronted an expenditure limitation provision that capped the amount of money individuals could spend on any activity intended to influence a federal election ( i.e., it reached to both independent and coordinated expenditures). See 424 U. S., at 46-47. The Court concluded that though the limitation reached both coordinated and independent expenditures, there were other valid FECA provisions that barred coordinated expenditures. Hence, the limit at issue only added regulation to independent expenditures. On that basis it concluded the provision was unsupported by any valid corruption interest. The conduct to which it added regulation (independent expenditures) posed no quid pro quo danger. See ibid. Placing Buckley 's anticorruption rationale in the context of the federal legislative power yields the following rule: Congress' interest in preventing corruption provides a basis for regulating federal candidates' and officeholders' receipt of quids, whether or not the candidate or officeholder corruptly received them. Conversely, the rule requires the Court to strike down campaign finance regulations when they do not add regulation to actual or apparent quid pro quo arrangements. Id., at 45. The Court ignores these constitutional bounds and in effect interprets the anticorruption rationale to allow regulation not just of actual or apparent quid pro quo arrangements, ibid., but of any conduct that wins goodwill from or influences a Member of Congress. It is not that there is any quarrel between this opinion and the majority that the inquiry since Buckley has been whether certain conduct creates undue influence. See ante, at 154. On that we agree. The very aim of Buckley 's standard, however, was to define undue influence by reference to the presence of quid pro quo involving the officeholder. The Court, in contrast, concludes that access, without more, proves influence is undue. Access, in the Court's view, has the same legal ramifications as actual or apparent corruption of officeholders. This new definition of corruption sweeps away all protections for speech that lie in its path. The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise: More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress' legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing `undue influence on an officeholder's judgment, and the appearance of such influence.' [ Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 441 (2001) (Colorado II) ]. Many of the `deeply disturbing examples' of corruption cited by this Court in Buckley to justify FECA's contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the `appearance of such influence.' Colorado II, supra, at 441; see also [ Buckley v. Valeo, 519 F. 2d 821, 838 (CADC 1975)]. The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See [251 F. Supp. 2d 176, 492-506 (DC 2003) (Kollar-Kotelly, J.)]. Ante, at 150 (some internal citations omitted). The majority notes that access flowed from the regulated conduct at issue in Buckley and its progeny, then uses that fact as the basis for concluding that access peddling by the parties equals corruption by the candidates. That conclusion, however, is tenable only by a quick and subtle shift, and one that breaks new ground: The majority ignores the quid pro quo nature of the regulated conduct central to our earlier decisions. It relies instead solely on the fact that access flowed from the conduct. To ignore the fact that in Buckley the money at issue was given to candidates, creating an obvious quid pro quo danger as much as it led to the candidates also providing access to the donors, is to ignore the Court's comments in Buckley that show quid pro quo was of central importance to the analysis. See 424 U. S., at 26-27, 45. The majority also ignores that in Buckley, and ever since, those party contributions that have been subject to congressional limit were not general party-building contributions but were only contributions used to influence particular elections. That is, they were contributions that flowed to a particular candidate's benefit, again posing a quid pro quo danger. And it ignores that in Colorado II, the party spending was that which was coordinated with a particular candidate, thereby implicating quid pro quo dangers. In all of these ways the majority breaks the necessary tether between quid and access and assumes that access, all by itself, demonstrates corruption and so can support regulation. See also ante, at 156 ([L]arge soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put). Access in itself, however, shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular. By equating vague and generic claims of favoritism or influence with actual or apparent corruption, the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the rationale that is Buckley 's very foundation. The generic favoritism or influence theory articulated by the Court is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any given action might be favored by any given person, so by the Court's reasoning political loyalty of the purest sort can be prohibited. There is no remaining principled method for inquiring whether a campaign finance regulation does in fact regulate corruption in a serious and meaningful way. We are left to defer to a congressional conclusion that certain conduct creates favoritism or influence. Though the majority cites common sense as the foundation for its definition of corruption, see ante, at 145, 152, in the context of the real world only a single definition of corruption has been found to identify political corruption successfully and to distinguish good political responsiveness from bad—that is quid pro quo. Favoritism and influence are not, as the Government's theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. Quid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid. The majority attempts to mask its extension of Buckley under claims that BCRA prevents the appearance of corruption, even if it does not prevent actual corruption, since some assert that any donation of money to a political party is suspect. See ante, at 149-152. Under Buckley 's holding that Congress has a valid interest in stemming the reality or appearance of corruption, 424 U. S., at 47-48, however, the inquiry does not turn on whether some persons assert that an appearance of corruption exists. Rather, the inquiry turns on whether the Legislature has established that the regulated conduct has inherent corruption potential, thus justifying the inference that regulating the conduct will stem the appearance of real corruption. Buckley was guided and constrained by this analysis. In striking down expenditure limits the Court in Buckley did not ask whether people thought large election expenditures corrupt, because clearly at that time many persons, including a majority of Congress and the President, did. See id., at 25 (According to the parties and amici, the primary interest served . . . by the Act as a whole, is the prevention of corruption and the appearance of corruption). Instead, the Court asked whether the Government had proved that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential. See id., at 46. The Buckley decision made this analysis even clearer in upholding contribution limitations. It stated that even if actual corrupt contribution practices had not been proved, Congress had an interest in regulating the appearance of corruption that is inherent in a regime of large individual financial contributions. Id., at 27 (discussing contributions to candidates). See also id., at 28, 30. The quid pro quo nature of candidate contributions justified the conclusion that the contributions pose inherent corruption potential; and this in turn justified the conclusion that their regulation would stem the appearance of real corruption. From that it follows that the Court today should not ask, as it does, whether some persons, even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to them. Following Buckley, it should instead inquire whether the conduct now prohibited inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the appearance of quid pro quo corruption.
+Sections 323(a), (b), (d), and (f), 2 U. S. C. A. §§ 441i(a), (b), (d), and (f) (Supp. 2003), cannot stand because they do not add regulation to conduct that poses a demonstrable quid pro quo danger. They do not further Buckley 's corruption interest. The majority, with a broad brush, paints § 323(a) as aimed at limiting contributions possessing federal officeholder corruption potential. From there it would justify § 323's remaining provisions as necessary complements to ensure the national parties cannot circumvent § 323(a)'s prohibitions. The broad brush approach fails, however, when the provisions are reviewed under Buckley 's proper definition of corruption potential. On its face § 323(a) does not regulate federal candidates' or officeholders' receipt of quids because it does not regulate contributions to, or conduct by, candidates or officeholders. See BCRA § 101(a) (setting out new FECA § 323(a): National parties may not solicit, receive, or direct to another person. . . or spend any [soft money]). The realities that underlie the statute, furthermore, do not support the majority's interpretation. Before BCRA's enactment, parties could only use soft money for a candidate's benefit ( e. g., through issue ads, which all parties now admit may influence elections) independent of that candidate. And, as discussed later, § 323(e) validly prohibits federal candidate and officeholder solicitation of soft-money party donations. See infra, at 314. Section 323(a), therefore, only adds regulation to soft-money party donations not solicited by, or spent in coordination with, a candidate or officeholder. These donations (noncandidate or officeholder solicited soft-money party donations that are independently spent) do not pose the quid pro quo dangers that provide the basis for restricting protected speech. Though the Government argues § 323(a) does regulate federal candidates' and officeholders' receipt of quids, it bases its argument on this flawed reasoning: (1) [F]ederal elected officeholders are inextricably linked to their political parties, Brief for Appellee/Cross Appellant FEC et al. in No. 02-1674 et al., p. 21; cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 626 (1996) (Colorado I) (KENNEDY, J., concurring in judgment and dissenting in part). (2) All party receipts must be connected to, and must create, corrupt donor favoritism among these officeholders. (3) Therefore, regulation of party receipts equals regulation of quids to the party's officeholders. The reasoning is flawed because the Government's reliance on reasoning parallel to the Colorado I concurrence only establishes the first step in its chain of logic: that a party is a proxy for its candidates generally. It does not establish the second step: that as a proxy for its candidates generally, all moneys the party receives (not just candidate solicited, soft-money donations, or donations used in coordinated activity) represent quids for all the party's candidates and officeholders. The Government's analysis is inconsistent with what a majority of the Justices, in different opinions, have said. JUSTICE THOMAS' dissent in Federal Election Comm'n v. Colorado Republican Campaign Comm., 533 U. S. 431, 476-477 (2001) (Colorado II) , taken together with JUSTICE BREYER'S opinion announcing the judgment of the Court in Colorado I, rebuts the second step of the Government's argument. JUSTICE THOMAS demonstrated that a general party-candidate corruption linkage does not exist. As he pointed out: The dearth of evidence [of such corruption] is unsurprising in light of the unique relationship between a political party and its candidates: `The very aim of a political party is to influence its candidate's stance on issues and, if the candidate takes office or is reelected, his votes.' If coordinated expenditures help achieve this aim, the achievement `does not . . . constitute a subversion of the political process.' Colorado II, supra, at 476-477 (citations omitted). JUSTICE BREYER reached the same conclusion about the corrupting effect general party receipts could have on particular candidates, though on narrower grounds. He concluded that independent party conduct lacks quid pro quo corruption potential. See Colorado I, 518 U.S., at 617-618; id., at 617 (If anything, an independent [party] expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor); id., at 616 ([T]he opportunity for corruption posed by [soft-money] contributions is, at best, attenuated because they may not be used for the purposes of influencing a federal election under FECA). These opinions establish that independent party activity, which by definition includes independent receipt and spending of soft money, lacks a possibility for quid pro quo corruption of federal officeholders. This must be all the more true of a party's independent receipt and spending of soft-money donations neither directed to nor solicited by a candidate. The Government's premise is also unsupported by the record before us. The record confirms that soft-money party contributions, without more, do not create quid pro quo corruption potential. As a conceptual matter, generic party contributions may engender good will from a candidate or officeholder because, as the Government says: [A] Member of Congress can be expected to feel a natural temptation to favor those persons who have helped the `team,' Brief for Appellee/Cross-Appellant FEC et al. in No. 02-1674 et al., p. 33. Still, no Member of Congress testified this favoritism changed voting behavior. The piece of record evidence the Government puts forward on this score comes by way of deposition testimony from former Senator Simon and Senator Feingold. See 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.). Senator Simon reported an unidentified colleague indicated frustration with Simon's opposition to legislation that would benefit a party contributor on the grounds that `we've got to pay attention to who is buttering our bread' and testified he did not think there was any question `this' ( i. e. , donors getting their way) was why the legislation passed. See App. 805. Senator Feingold, too, testified an unidentified colleague suggested he support the legislation because `they [ i. e. , the donor] just gave us [ i. e. , the party] $100,000.' 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.). That evidence in fact works against the Government. These two testifying Senators expressed disgust toward the favoring of a soft-money giver, and not the good will one would have expected under the Government's theory. That necessarily undercuts the inference of corruption the Government would have us draw from the evidence. Even more damaging to the Government's argument from the testimony is the absence of testimony that the Senator who allegedly succumbed to corrupt influence had himself solicited soft money from the donor in question. Equally, there is no indication he simply favored the company with his vote because it had, without any involvement from him, given funds to the party to which he belonged. This fact is crucial. If the Senator himself had been the solicitor of the soft-money funds in question, the incident does nothing more than confirm that Congress' efforts at campaign finance reform ought to be directed to conduct that implicates quid pro quo relationships. Only if there was some evidence that the officeholder had not solicited funds from the donor could the Court extrapolate from this episode that general party contributions function as quids , inspiring corrupt favoritism among party members. The episode is the single one of its type reported in the record and does not seem sufficient basis for major incursions into settled practice. Given the Government's claim that the corrupt favoritism problem is widespread, its inability to produce more than a single instance purporting to illustrate the point demonstrates the Government has not fairly characterized the general attitudes of Members toward soft-money donors from whom they have not solicited. Other aspects of the record confirm the Government has not produced evidence that Members corruptly favor soft-money donors to their party as a per se matter. Most testimony from which the Government would have the Court infer corruption is testimony that Members are rewarded by their parties for soliciting soft money. See id., at 438-521 (Kollar-Kotelly, J.). This says nothing about how Members feel about a party's soft-money donors from whom they have not solicited. Indeed, record evidence on this point again cuts against the Government: `As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise.' Id., at 482 (testimony of former Senator Boren; see 6-R Defs. Exhs., Tab 8, ¶ 8). Thus, one of the handful of Senators on whom the Government relies to make its case candidly admits the pressure of appeasing soft-money donors derives from the Members' solicitation of donors, not from those donors' otherwise giving to their party. In light of all this, § 323(a) has no valid anticorruption interest. The anticircumvention interests the Government offers in defense of §§ 323(b), (d), and (f) must also fall with the interests asserted to justify § 323(a). Any anticircumvention interest can be only as compelling as the interest justifying the underlying regulation. None of these other sections has an independent justifying interest. Section 323(b), for example, adds regulation only to activity undertaken by a state party. In the District Court two of the three judges found as fact that particular state and local parties exist primarily to participate in state and local elections, that they spend the majority of their resources on those elections, and that their voter registration and get-out-the-vote (GOTV) activities, in particular, are directed primarily at state and local elections. See 251 F. Supp. 2d, at 301-302 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 837-840 (Leon, J.). These findings, taken together with BCRA's other, valid prohibitions barring coordination with federal candidates or officeholders and their soft-money solicitation, demonstrate that § 323(b) does not add regulation to conduct that poses a danger of a federal candidate's or officeholder's receipt of quids. Even § 323(b)'s narrowest regulation, which bans state party soft-money funded ads that (1) refer to a clearly identified federal candidate, and (2) either support or attack any candidate for the office of the clearly mentioned federal candidate, see new FECA § 301(20)(A)(iii), fails the constitutional test. The ban on conduct that by the statute's own definition may serve the interest of a federal candidate suggests to the majority that it is conduct that poses quid pro quo danger for federal candidates or officeholders. Yet, even this effect — considered after excising the coordination and candidate-solicited funding aspects elsewhere prohibited by BCRA §§ 202 and 214(a) and new FECA § 323(a) — poses no danger of a federal candidate's or officeholder's receipt of a quid. That conduct is no different from an individual's independent expenditure referring to and supporting a clearly identified candidate — and this poses no regulable danger. Section 323(d), which governs relationships between the national parties and nonprofit groups, fails for similar reasons. It is worth noting that neither the record nor our own experience tells us how significant these funds transfers are at this time. It is plain, however, that the First Amendment ought not to be manipulated to permit Congress to forbid a political party from aiding other speakers whom the party deems more effective in addressing discrete issues. One of the central flaws in BCRA is that Congress is determining what future course the creation of ideas and the expression of views must follow. Its attempt to foreclose new and creative partnerships for speech, as illustrated here, is consistent with neither the traditions nor principles of our free speech guarantee, which insists that the people, and not the Congress, decide what modes of expression are the most legitimate and effective. The majority's upholding § 323(d) is all the more unsettling because of the way it ignores the Act as Congress wrote it. Congress said national parties shall not solicit any funds for, or make or direct any donations to, § 501(c) nonprofit organizations that engage in federal election activity or to § 527 political committees. The Court, however, reads out the word any and construes the words funds and donations to mean soft-money funds and soft-money donations. See ante, at 180 (This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole). The Court's statutory amendment may be consistent with its anti-soft-money rationale; it is not, however, consistent with the plain and unavoidable statutory text Congress has given us. Even as construed by the Court, moreover, it is invalid. The majority strains to save the provision from what must seem to it an unduly harsh First Amendment. It does so by making a legislative determination Congress chose not to make: to prefer hard money to soft money within the construct of national party relationships with nonprofit groups. Congress gave no indication of a preference to regulate either hard money or soft in this context. Rather, it simply proscribed all transfers of money between the two organizations and all efforts by the national parties to raise any money on the nonprofit groups' behalf. The question the Court faces is not which part of a text to sever and strike, but whether Congress can prohibit such transfers altogether. The answer, as the majority recognizes, is no. See ante , at 179 ([P]rohibiting parties from donating funds already raised in compliance with FECA does little to further Congress' goal of preventing corruption or the appearance of corruption of federal candidates and officeholders). Though § 323(f) in effect imposes limits on candidate contributions, it does not address federal candidate and officeholder contributions. Yet it is the possibility of federal officeholder quid pro quo corruption potential that animates Buckley 's rule as it relates to Acts of Congress (as opposed to Acts of state legislatures). See 424 U.S., at 13 (The constitutional power of Congress to regulate federal elections is well established). When one recognizes that § § 323(a), (b), (d), and (f) do not serve the interest the anticorruption rationale contemplates, Title I's entirety begins to look very much like an incumbency protection plan. See J. Miller, Monopoly Politics 84-101 (1999) (concluding that regulations limiting election fundraising and spending constrain challengers more than incumbents). That impression is worsened by the fact that Congress exempted its officeholders from the more stringent prohibitions imposed on party officials. Compare new FECA § 323(a) with new FECA § 323(e). Section 323(a) raises an inflexible bar against soft-money solicitation, in any way, by parties or party officials. Section 323(e), in contrast, enacts exceptions to the rule for federal officeholders (the very centerpiece of possible corruption), and allows them to solicit soft money for various uses and organizations. The law in some respects even weakens the regulation of federal candidates and officeholders. Under former law, officeholders were understood to be limited to receipt of hard money by their campaign committees. See 2 U.S.C. § § 431, 441a (setting out the pre-BCRA FECA regime). BCRA, however, now allows them and their campaign committees to receive soft money that fits the hard-money source-and-amount restrictions, so long as the officeholders direct that money on to other nonfederal candidates. See new FECA § 323(e)(1)(B). The majority's characterization of this weakening of the regime as tightly constrain[ing] candidates, ante, at 181, n. 70, is a prime example of its unwillingness to confront Congress' own interest or the persisting fact that the regulations violate First Amendment freedoms. The more lenient treatment accorded to incumbency-driven politicians than to party officials who represent broad national constituencies must render all the more suspect Congress' claim that the Act's sole purpose is to stop corruption. The majority answers this charge by stating the obvious, that § 323(e) applies to both officeholders and candidates.  Ante, at 185, n. 72. The controlling point, of course, is the practical burden on challengers. That the prohibition applies to both incumbents and challengers in no way establishes that it burdens them equally in that regard. Name recognition and other advantages held by incumbents ensure that as a general rule incumbents will be advantaged by the legislation the Court today upholds. The Government identifies no valid anticorruption interest justifying §§ 323(a), (b), (d), and (f). The very nature of the restrictions imposed by these provisions makes one all the more skeptical of the Court's explanation of the interests at stake. These provisions cannot stand under the First Amendment.
+Ultimately, only one of the challenged Title I provisions satisfies Buckley 's anticorruption rationale and the First Amendment's guarantee. It is § 323(e). This provision is the sole aspect of Title I that is a direct and necessary regulation of federal candidates' and officeholders' receipt of quids. Section 323(e) governs candidate[s], individual[s] holding Federal office, agent[s] of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office. 2 U.S.C.A. § 441i(e) (Supp. 2003). These provisions, and the regulations that follow, limit candidates' and their agents' solicitation of soft money. The regulation of a candidate's receipt of funds furthers a constitutionally sufficient interest. More difficult, however, is the question whether regulation of a candidate's solicitation of funds also furthers this interest if the funds are given to another. I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates' or officeholders' solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley 's anticorruption rationale.",Constitutionally Sufficient Interest
+596,131149,2,3,"Other BCRA Title II sections require analysis alongside the provisions of Title I, for they, too, are regulations that principally operate within the ambit of Buckley 's anticorruption principle. BCRA §§ 202 and 214 are two of these provisions. They involve the Act's new definition of coordination. BCRA § 213 is another. It institutes a new system in which the parties are forced to choose between two different types of relationships with their candidates.
+I agree with the majority that §§ 214(b) and (c) do not merit our review because they are not now justiciable. See ante, at 223. I disagree, however, with the majority's view that § 214(a), § 214's sole justiciable provision, is valid. Nor can I agree that § 202 is valid in its entirety. Section 214(a) amends FECA to define, as hard-money contributions to a political party, expenditures an individual makes in concert with the party. See ante, at 219. This provision, in my view, must fall. As the earlier discussion of Title I explains, individual contributions to the political parties cannot be capped in the soft-money context. Since an individual's soft-money contributions to a party may not be limited, it follows with even greater force that an individual's expenditure of money, coordinated with the party for activities on which the party could spend unlimited soft money, cannot be capped. This conclusion emerges not only from an analysis of Title I but also from Colorado I. There, JUSTICE BREYER'S opinion announcing the judgment of the Court concluded political parties had a constitutional right to engage in independent advocacy on behalf of a candidate. 518 U.S. 604 (1996). That parties can spend unlimited soft money on this activity follows by necessary implication. A political party's constitutional right to spend money on advocacy independent of a candidate is burdened by § 214(a) in a direct and substantial way. The statute commands the party to refrain from coordinating with an individual engaging in advocacy even if the individual is acting independently of the candidate. Section 202 functions in a manner similar to the operation of § 214(a). It directs that when persons make electioneering communication, see new FECA § 304(f)(3), 2 U.S.C.A. § 434(f)(3) (Supp. 2003), in a coordinated fashion with a candidate or a party, the coordinated communication expense must be treated as a hard-money contribution by the person to that candidate or party. The trial court erroneously believed it needed to determine whether § 304's definition of electioneering communications was itself unconstitutional to assess this provision. While a statutory definition may lead to an unconstitutional result under one application, it may lead to a constitutional result under another. Compare infra this page and 321-322 with infra, at 333-337. It is unhelpful to talk in terms of the definition being unconstitutional or constitutional when the only relevant question is whether, as animated by a substantive prohibition, here § 202, the definition leads to unconstitutional results. The other Title II provisions that employ § 304's electioneering communication definition are analyzed below, within the context of the corporate speech rationale and the disclosure provisions. Section 202, however, must be judged under the anticorruption rationale because it does not distinguish according to corporate or union status, and it does not involve disclosure requirements. Section 202 simply limits the speech of all persons. Section 202 does satisfy Buckley 's anticorruption rationale in one respect: It treats electioneering communications expenditures made by a person in coordination with a candidate as hard-money contributions to that candidate. For many of the same reasons that § 323(e) is valid, § 202, in this single way, is valid: It regulates conduct that poses a quid pro quo danger — satisfaction of a candidate's request. Insofar as § 202 regulates coordination with a political party, however, it suffers from the same flaws as § 214(a). Congress has instructed us, as much as possible, to sever any infirm portions of statutory text from the valid parts, see BCRA § 401. Following that instruction, I would uphold § 202's text as to its candidate coordination regulation (the first clause of new FECA § 315(a)(7)(C)(ii), 2 U.S.C.A. § 441a(a)(7)(C)(ii) (Supp. 2003), but rule invalid its text that applies the coordination provision to political parties. This provision includes an advance contracts aspect as well. That aspect of the provision, on its own, would be invalid, for many of the reasons discussed below with respect to the advance disclosure requirements embodied in BCRA § § 201 and 212. See infra, at 321-322.
+The final aspect of BCRA that implicates Buckley 's anticorruption rationale is § 213, the forced choice provision. The majority concludes § 213 violates the Constitution. I agree and write on this aspect of the case to point out that the section's unlawfulness flows not from the unique contours of the statute that settle how much political parties may spend on their candidate's campaign, see ante, at 215-219, but from its raw suppression of constitutionally protected speech. Section 213 unconstitutionally forces the parties to surrender one of two First Amendment rights. We affirmed that parties have a constitutionally protected right to make independent expenditures in Colorado I. I continue to believe, moreover, that even under Buckley a political party has a protected right to make coordinated expenditures with its candidates. See Colorado II , 533 U.S., at 466-482 (THOMAS, J., dissenting). Our well-established constitutional tradition respects the role parties play in the electoral process and in stabilizing our representative democracy. There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. Davis v. Bandemer , 478 U.S. 109, 144-145 (1986) (O'CONNOR, J., concurring in judgment). This role would be undermined in the absence of a party's ability to coordinate with candidates. Cf. Colorado I, supra, at 629 (KENNEDY, J., concurring in judgment and dissenting in part) (parties can give effect to their views only by selecting and supporting candidates). Section 213's command that the parties abandon one First Amendment right or the other offends the Constitution even more than a command that a person choose between a First Amendment right and a statutory right.",Coordination Provisions
+597,131149,1,2,"
+BCRA § 201, which requires disclosure of electioneering communications, including those coordinated with the party but independent of the candidate, does not substantially relate to a valid interest in gathering data about compliance with contribution limits or in deterring corruption. Contra, ante, at 196. As the above analysis of Title I demonstrates, Congress has no valid interest in regulating soft-money contributions that do not pose quid pro quo corruption potential. In the absence of a valid basis for imposing such limits the effort here to ensure compliance with them and to deter their allegedly corrupting effects cannot justify disclosure. The regulation does substantially relate to the other interest the majority details, however. See ibid. This assures its constitutionality. For that reason, I agree with the Court's judgment upholding the disclosure provisions contained in § 201 of Title II, with one exception. Section 201's advance disclosure requirement — the aspect of the provision requiring those who have contracted to speak to disclose their speech in advance — is, in my view, unconstitutional. Advance disclosure imposes real burdens on political speech that post hoc disclosure does not. It forces disclosure of political strategy by revealing where ads are to be run and what their content is likely to be (based on who is running the ad). It also provides an opportunity for the ad buyer's opponents to dissuade broadcasters from running ads. See Brief for Plaintiff-Appellant/Cross-Appellee National Right to Life Committee, Inc., et al. in No. 02-1733 et al., pp. 44-46, and nn. 42-43. Against those tangible additional burdens, the Government identifies no additional interest uniquely served by advance disclosure. If Congress intended to ensure that advertisers could not flout these disclosure laws by running an ad before the election, but paying for it afterwards, see ante, at 200, then Congress should simply have required the disclosure upon the running of the ad, Burdening the First Amendment further by requiring advance disclosure is not a constitutionally acceptable alternative. To the extent § 201 requires advance disclosure, it finds no justification in its subordinating interests and imposes greater burdens than the First Amendment permits. Section 212, another disclosure provision, likewise incorporates an advance disclosure requirement. The plaintiffs challenge only this advance disclosure requirement, and not the broader substance of this section. The majority concludes this challenge is not ripe. I disagree. The statute commands advance disclosure. The Federal Election Commission has issued a regulation under § 212 that, by its terms, does not implement this particular requirement. See 68 Fed. Reg. 404, 452 (2003) (to be codified at 11 CFR § 109.10(c)(d)). Adoption of a regulation that does not implement the statute to its full extent does not erase the statutory requirement. This is not a case in which a statute is ambiguous and the agency interpretation can be relied upon to avoid a statutory obligation that is uncertain or arguable. The failure of the regulation at this point to require advance disclosure is of no moment. Contra, 251 F. Supp. 2d, at 251 (per curiam). The validity of § 212 is an issue presented for our determination; it is ripe; and the advance disclosure requirement, for the reasons given when discussing the parallel provision under § 201, is unconstitutional. Contra, ante, at 212 (declining to address the ripeness question in light of the majority's rejection of the challenge to advance notice in § 201).
+The majority permits a new and serious intrusion on speech when it upholds § 203, the key provision in Title II that prohibits corporations and labor unions from using money from their general treasury to fund electioneering communications. The majority compounds the error made in Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), and silences political speech central to the civic discourse that sustains and informs our democratic processes. Unions and corporations, including nonprofit corporations, now face severe criminal penalties for broadcasting advocacy messages that refe[r] to a clearly identified candidate, 2 U. S. C. A. § 431(20)(A)(iii) (Supp. 2003), in an election season. Instead of extending Austin to suppress new and vibrant voices, I would overrule it and return our campaign finance jurisprudence to principles consistent with the First Amendment.
+The Government and the majority are right about one thing: The express-advocacy requirement, with its list of magic words, is easy to circumvent. The Government seizes on this observation to defend BCRA § 203, arguing it will prevent what it calls sham issue ads that are really to the same effect as their more express counterparts. Ante, at 185, 193-194. What the Court and the Government call sham, however, are the ads speakers find most effective. Unlike express ads that leave nothing to the imagination, the record shows that issue ads are preferred by almost all candidates, even though politicians, unlike corporations, can lawfully broadcast express ads if they so choose. It is a measure of the Government's disdain for protected speech that it would label as a sham the mode of communication sophisticated speakers choose because it is the most powerful. The Government's use of the pejorative label should not obscure § 203's practical effect: It prohibits a mass communication technique favored in the modern political process for the very reason that it is the most potent. That the Government would regulate it for this reason goes only to prove the illegitimacy of the Government's purpose. The majority's validation of it is not sustainable under accepted First Amendment principles. The problem is that the majority uses Austin, a decision itself unfaithful to our First Amendment precedents, to justify banning a far greater range of speech. This has it all backwards. If protected speech is being suppressed, that must be the end of the inquiry. The majority's holding cannot be reconciled with First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), which invalidated a Massachusetts law prohibiting banks and business corporations from making expenditures for the purpose of influencing referendum votes on issues that do not materially affect their business interests. Id., at 767. Bellotti was decided in the face of the same arguments on which the majority now relies. Corporate participation, the Government argued in Bellotti, would exert an undue influence on the outcome of a referendum vote. Id., at 789. The influence, presumably, was undue because immense aggregations of wealth were facilitated by the unique state-conferred corporate structure. Austin, 494 U. S., at 660. With these state-created advantages, id., at 659, corporations would drown out other points of view and destroy the confidence of the people in the democratic process, Bellotti, 435 U. S., at 789. Bellotti rejected these arguments in emphatic terms: To be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution `protects expression which is eloquent no less than that which is unconvincing.' Kingsley Int'l Pictures Corp. v. Regents, 360 U. S., at 689.... `[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment....' Buckley, 424 U. S., at 48-49. Id., at 790-791. Bellotti similarly dismissed the argument that the prohibition was necessary to protec[t] corporate shareholders by preventing the use of corporate resources in furtherance of views with which some shareholders may disagree. Id., at 792-793. Among other problems, the statute was overinclusive: [It] would prohibit a corporation from supporting or opposing a referendum proposal even if its shareholders unanimously authorized the contribution or expenditure.... Acting through their power to elect the board of directors or to insist upon protective provisions in the corporation's charter, shareholders normally are presumed competent to protect their own interests.... [M]inority shareholders generally have access to the judicial remedy of a derivative suit to challenge corporate disbursements.... Assuming, arguendo, that protection of shareholders is a `compelling' interest under the circumstances of this case, we find `no substantially relevant correlation between the governmental interest asserted and the State's effort' to prohibit appellants from speaking. Id., at 794-795 (quoting Shelton v. Tucker, 364 U. S. 479, 485 (1960)). See also Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (providing analogous protections to union members). Austin turned its back on this holding, not because the Bellotti Court had overlooked the Government's interest in combating quid pro quo corruption, but because a new majority decided to recognize a different type of corruption, Austin, 494 U. S., at 660, i.e., the same corrosive and distorting effects of immense aggregations of wealth, ibid., found insufficient to sustain a similar prohibition just a decade earlier. Unless certain narrow exceptions apply, see Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), the prohibition extends even to nonprofit corporations organized to promote a point of view. Aside from its disregard of precedents, the majority's ready willingness to equate corruption with all organizations adopting the corporate form is a grave insult to nonprofit and for-profit corporations alike, entities that have long enriched our civic dialogue. Austin was the first and, until now, the only time our Court had allowed the Government to exercise the power to censor political speech based on the speaker's corporate identity. The majority's contrary contention is simply incorrect. Contra, ante, at 203 (Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law). I dissented in Austin, 494 U.S., at 695, and continue to believe that the case represents an indefensible departure from our tradition of free and robust debate. Two of my colleagues joined the dissent, including a Member of today's majority. Ibid. (O'CONNOR and SCALIA, JJ.). See also id., at 679 (SCALIA, J., dissenting). To be sure, Bellotti concerns issue advocacy, whereas Austin is about express advocacy. This distinction appears to have accounted for the position of at least two Members of the Court. See 494 U.S., at 675-676 (Brennan, J., concurring) (The Michigan law ... prohibits corporations from using treasury funds only for making independent expenditures in support of, or in opposition to, any candidate in state elections. A corporation remains free ... to use general treasury funds to support an initiative proposal in a state referendum (citations omitted)); id., at 678 (STEVENS, J., concurring) ([T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other). The distinction, however, between independent expenditures for commenting on issues, on the one hand, and supporting or opposing a candidate, on the other, has no First Amendment significance apart from Austin 's arbitrary line. Austin was based on a faulty assumption. Contrary to JUSTICE STEVENS' proposal that there is vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other, ibid., there is a general recognition now that discussions of candidates and issues are quite often intertwined in practical terms. See, e.g., Brief for Intervenor-Defendant Sen. John McCain et al. in No. 02-1674 et al., p. 42 (`[The] legal ... wall between issue advocacy and political advocacy... is built of the same sturdy material as the emperor's clothing. Everyone sees it. No one believes it' (quoting the chair of the Political Action Committee (PAC) of the National Rifle Association (NRA))). To abide by Austin 's repudiation of Bellotti on the ground that Bellotti did not involve express advocacy is to adopt a fiction. Far from providing a rationale for expanding Austin, the evidence in these consolidated cases calls for its reexamination. Just as arguments about immense aggregations of corporate wealth and concerns about protecting shareholders and union members do not justify a ban on issue ads, they cannot sustain a ban on independent expenditures for express ads. In holding otherwise, Austin forced a substantial amount of political speech underground and created a species of covert speech incompatible with our free and open society. Nixon v. Shrink Missouri Government PAC, 528 U. S., at 406 (KENNEDY, J., dissenting). The majority not only refuses to heed the lessons of experience but also perpetuates the conflict Austin created with fundamental First Amendment principles. Buckley foresaw that the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application, 424 U. S., at 42; see also id., at 45. It recognized that `[p]ublic discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct.' Id., at 42, n. 50. Hence, `[d]iscussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.' Ibid. In glossing over Austin 's opposite — and false — assumption that express advocacy is different, the majority ignores reality and elevates a distinction rejected by Buckley in clear terms. Even after Buckley construed the statute then before the Court to reach only express advocacy, it invalidated limits on independent expenditures, observing that [a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. 424 U. S., at 48. Austin defied this principle. It made the impermissible content-based judgment that commentary on candidates is less deserving of First Amendment protection than discussions of policy. In its haste to reaffirm Austin today, the majority refuses to confront this basic conflict between Austin and Buckley. It once more diminishes the First Amendment by ignoring its command that the Government has no power to dictate what topics its citizens may discuss. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U. S. 530 (1980). Continued adherence to Austin, of course, cannot be justified by the corporate identity of the speaker. Not only does this argument fail to account for Bellotti, 435 U. S., at 777 (The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual), but Buckley itself warned that [t]he First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. 424 U. S., at 49; see, also id., at 48-49; Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). The exemption for broadcast media companies, moreover, makes the First Amendment problems worse, not better. See Austin, 494 U. S., at 712 (KENNEDY, J., dissenting) (An independent ground for invalidating this statute is the blanket exemption for media corporations.... All corporations communicate with the public to some degree, whether it is their business or not; and communication is of particular importance for nonprofit corporations); see also id., at 690-691 (SCALIA, J., dissenting) (Amassed corporate wealth that regularly sits astride the ordinary channels of information is much more likely to produce the New Corruption (too much of one point of view) than amassed corporate wealth that is generally busy making money elsewhere). In the end the majority can supply no principled basis to reason away Austin 's anomaly. Austin 's errors stand exposed, and it is our duty to say so. I surmise that even the majority, along with the Government, appreciates these problems with Austin. That is why it invents a new justification. We are now told that the government also has a compelling interest in insulating federal elections from the type of corruption arising from the real or apparent creation of political debts. Brief for Appellee/Cross-Appellant FEC et al. in No. 02-1674 et al., p. 88. [E]lectioneering communications paid for with the general treasury funds of labor unions and corporations, the Government warns, endea[r] those entities to elected officials in a way that could be perceived by the public as corrupting. See 251 F. Supp. 2d, at 622-623 (Kollar-Kotelly, J.) (stating the Government's position). This rationale has no limiting principle. Were we to accept it, Congress would have the authority to outlaw even pure issue ads, because they, too, could endear their sponsors to candidates who adopt the favored positions. Taken to its logical conclusion, the alleged Government interest in insulating federal elections from ... the real or apparent creation of political debts also conflicts with Buckley. If a candidate feels grateful to a faceless, impersonal corporation for making independent expenditures, the gratitude cannot be any less when the money came from the CEO's own pocket. Buckley, however, struck down limitations on independent expenditures and rejected the Government's corruption argument absent evidence of coordination. See 424 U. S., at 51. The Government's position would eviscerate the line between expenditures and contributions and subject both to the same complaisant review under the First Amendment. Federal Election Comm'n v. Beaumont, 539 U. S., at 161. Complaisant or otherwise, we cannot cede authority to the Legislature to do with the First Amendment as it pleases. Since Austin is inconsistent with the First Amendment, its extension diminishes the First Amendment even further. For this reason § 203 should be held unconstitutional.
+Even under Austin, BCRA § 203 could not stand. All parties agree strict scrutiny applies; § 203, however, is far from narrowly tailored. The Government is unwilling to characterize § 203 as a ban, citing the possibility of funding electioneering communications out of a separate segregated fund. This option, though, does not alter the categorical nature of the prohibition on the corporation. [T]he corporation as a corporation is prohibited from speaking. Austin, 494 U. S., at 681, n. (SCALIA, J., dissenting). What the law allows — permitting the corporation to serve as the founder and treasurer of a different association of individuals that can endorse or oppose political candidates — is not speech by the corporation. Ibid. Our cases recognize the practical difficulties corporations face when they are limited to communicating through PACs. The majority need look no further than MCFL, 479 U. S. 238, for an extensive list of hurdles PACs have to confront: Under [2 U. S. C.] § 432 [(1982 ed.)], [MCFL] must appoint a treasurer, § 432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, § 432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, § 432(c); and preserve receipts for all disbursements over $200 and all records for three years, §§ 432(c), (d). Under § 433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, §§ 433(a), (b); must report any change in the above information within 10 days, § 433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, § 433(d)(1). Under § 434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a pre-election report no later than the 12th day before an election, a postelection report within 30 days after an election, and reports every 6 months during nonelection years. §§ 434(a)(4)(A), (B). These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. § 434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its `members,' §§ 441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past. Id., at 253-254. These regulations are more than minor clerical requirements. Rather, they create major disincentives for speech, with the effect falling most heavily on smaller entities that often have the most difficulty bearing the costs of compliance. Even worse, for an organization that has not yet set up a PAC, spontaneous speech that refers to a clearly identified candidate for Federal office becomes impossible, even if the group's vital interests are threatened by a piece of legislation pending before Congress on the eve of a federal election. See Brief for Appellant Chamber of Commerce of the United States et al. in No. 02-1756 et al., p. 37. Couple the litany of administrative burdens with the categorical restriction limiting PACs' solicitation activities to members, and it is apparent that PACs are inadequate substitutes for corporations in their ability to engage in unfettered expression. Even if the newly formed PACs manage to attract members and disseminate their messages against these heavy odds, they have been forced to assume a false identity while doing so. As the American Civil Liberties Union (ACLU) points out, political committees are regulated in minute detail because their primary purpose is to influence federal elections. The ACLU and thousands of other organizations like it, however, are not created for this purpose and therefore should not be required to operate as if they were. Reply Brief for Appellant ACLU in No. 02-1734 et al., p. 15. A requirement that coerces corporations to adopt alter egos in communicating with the public is, by itself, sufficient to make the PAC option a false choice for many civic organizations. Forcing speech through an artificial secondhand endorsement structure . . . debases the value of the voice of nonprofit corporate speakers . . . [because] PAC's are interim, ad hoc organizations with little continuity or responsibility. Austin, 494 U.S., at 708-709 (KENNEDY, J., dissenting). In contrast, their sponsoring organizations have a continuity, a stability, and an influence that allows their members and the public at large to evaluate their . . . credibility. Id., at 709. The majority can articulate no compelling justification for imposing this scheme of compulsory ventriloquism. If the majority is concerned about corruption and distortion of the political process, it makes no sense to diffuse the corporate message and, under threat of criminal penalties, to compel the corporation to spread the blame to its ad hoc intermediary. For all these reasons, the PAC option cannot advance the Government's argument that the provision meets the test of strict scrutiny. See, e.g., id., at 657-660; MCFL, 479 U.S. 238; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000) (When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression). Once we turn away from the distraction of the PAC option, the provision cannot survive strict scrutiny. Under the primary definition, § 203 prohibits unions and corporations from funding from their general treasury any broadcast, cable, or satellite communication which — (I) refers to a clearly identified candidate for Federal office; (II) is made within— (aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or (bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and (III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate. 2 U.S.C.A. § 434(f)(3)(A)(i) (Supp. 2003). The prohibition, with its crude temporal and geographic proxies, is a severe and unprecedented ban on protected speech. As discussed at the outset, suppose a few Senators want to show their constituents in the logging industry how much they care about working families and propose a law, 60 days before the election, that would harm the environment by allowing logging in national forests. Under § 203, a nonprofit environmental group would be unable to run an ad referring to these Senators in their districts. The suggestion that the group could form and fund a PAC in the short time required for effective participation in the political debate is fanciful. For reasons already discussed, moreover, an ad hoc PAC would not be as effective as the environmental group itself in gaining credibility with the public. Never before in our history has the Court upheld a law that suppresses speech to this extent. The group would want to refer to these Senators, either by name or by photograph, not necessarily because an election is at stake. It might be supposed the hypothetical Senators have had an impeccable environmental record, so the environmental group might have no previous or present interest in expressing an opinion on their candidacies. Or, the election might not be hotly contested in some of the districts, so whatever the group says would have no practical effect on the electoral outcome. The ability to refer to candidates and officeholders is important because it allows the public to communicate with them on issues of common concern. Section 203's sweeping approach fails to take into account this significant free speech interest. Under any conventional definition of overbreadth, it fails to meet strict scrutiny standards. It forces electioneering communications sponsored by an environmental group to contend with faceless and nameless opponents and consign their broadcast, as the NRA well puts it, to a world where politicians who threaten the environment must be referred to as `He Whose Name Cannot Be Spoken.' Reply Brief for Appellant NRA et al. in No. 02-1675 et al., p. 19. In the example above, it makes no difference to § 203 or to the Court that the bill sponsors may have such well-known ideological biases that revealing their identity would provide essential instruction to citizens on whether the policy benefits them or their community. Nor does it make any difference that the names of the bill sponsors, perhaps through repetition in the news media, have become so synonymous with the proposal that referring to these politicians by name in an ad is the most effective way to communicate with the public. Section 203 is a comprehensive censor: On the pain of a felony offense, the ad must not refer to a candidate for federal office during the crucial weeks before an election. We are supposed to find comfort in the knowledge that the ad is banned under § 203 only if it is targeted to the relevant electorate, defined as communications that can be received by 50,000 or more persons in the candidate's district. See 2 U.S.C.A. § 434(f)(3)(C) (Supp. 2003). This Orwellian criterion, however, is analogous to a law, unconstitutional under any known First Amendment theory, that would allow a speaker to say anything he chooses, so long as his intended audience could not hear him. See Kleindienst v. Mandel, 408 U.S. 753, 762-765 (1972) (discussing the First Amendment right to receive information and ideas (internal quotation marks omitted)). A central purpose of issue ads is to urge the public to pay close attention to the candidate's platform on the featured issues. By banning broadcast in the very district where the candidate is standing for election, § 203 shields information at the heart of the First Amendment from precisely those citizens who most value the right to make a responsible judgment at the voting booth. In defending against a facial attack on a statute with substantial overbreadth, it is no answer to say that corporations and unions may bring as-applied challenges on a case-by-case basis. When a statute is as out of bounds as § 203, our law simply does not force speakers to undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation. Virginia v. Hicks, 539 U.S. 113, 119 (2003). If they instead abstain from protected speech, they har[m] not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Ibid. Not the least of the ill effects of today's decision is that our overbreadth doctrine, once a bulwark of protection for free speech, has now been manipulated by the Court to become but a shadow of its former self. In the end the Government and intervenor-defendants cannot dispute the looseness of the connection between § 203 and the Government's proffered interest in stemming corruption. At various points in their briefs, they drop all pretense that the electioneering ban bears a close relation to anticorruption purposes. Instead, they defend § 203 on the ground that the targeted ads may influence, are likely to influence, or will in all likelihood have the effect of influencing a federal election. See Brief for Appellee/Cross-Appellant FEC et al. in No. 02-1674 et al., pp. 14, 24, 84, 92-93, 94; Brief for Intervenor-Defendant Sen. John McCain et al. in No. 02-1674 et al., pp. 42-43. The mere fact that an ad may, in one fashion or another, influence an election is an insufficient reason for outlawing it. I should have thought influencing elections to be the whole point of political speech. Neither strict scrutiny nor any other standard the Court has adopted to date permits outlawing speech on the ground that it might influence an election, which might lead to greater access to politicians by the sponsoring organization, which might lead to actual corruption or the appearance of corruption. Settled law requires a real and close connection between end and means. The attenuated causation the majority endorses today is antithetical to the concept of narrow tailoring.
+As I would invalidate § 203 under the primary definition, it is necessary to add a few words about the backup provision. As applied in § 203, the backup definition prohibits corporations and unions from financing from their general treasury funds any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. 2 U.S.C.A. § 434f(3)(A)(ii) (Supp. 2003). The prohibition under the backup has much of the same imprecision as the ban under the primary definition, though here there is even more overbreadth. Unlike the primary definition, the backup contains no temporal or geographic limitation. Any broadcast, cable, or satellite communications— not just those aired within a certain blackout period and received by a certain segment of the population—are prohibited, provided they promote, support, attack, or oppose a candidate. There is no showing that such a permanent and ubiquitous restriction meets First Amendment standards for the relationship between means and ends. The backup definition is flawed for the further reason that it is vague. The crucial words—promotes, support, attack, oppose — are nowhere defined. In this respect the backup is similar to the provision in the Federal Election Campaign Act that Buckley held to be unconstitutionally vague. Cf. 424 U.S., at 39-44 (`No person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000'). The statutory phrase suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate cannot cure the overbreadth or vagueness of the backup definition. Like other key terms in the provision, these words are not defined. The lack of guidance presents serious problems of uncertainty. If plausible means something close to reasonable in light of the totality of the circumstances, speakers will be provided with an insufficient degree of protection and will, as a result, engage in widespread self-censorship to avoid severe criminal penalties. Given the statute's vagueness, even defendants' own experts disagree among themselves about whether specific ads fall within the prohibition. Hence, people of common intelligence must necessarily guess at [the backup definition's] meaning and differ as to its application, Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). For these reasons, I would also invalidate the ban on electioneering communication under the backup definition.
+Before concluding the analysis on Title II, it is necessary to add a few words about the majority's analysis of § 204. The majority attempts to minimize the damage done under § 203 by construing § 204 (the Wellstone Amendment) to incorporate an exception for MCFL -type corporations. See MCFL, 479 U.S. 238. Section 204, however, does no such thing. As even the majority concedes, the provision does not, on its face, exempt MCFL organizations from its prohibition. Ante, at 211. Although we normally presume that legislators would not deliberately enact an unconstitutional statute, that presumption is inapplicable here. There is no ambiguity regarding what § 204 is intended to accomplish. Enacted to supersede the Snowe-Jeffords Amendment that would have carved out precisely this exception for MCFL corporations, § 204 was written to broaden BCRA's scope to include issue-advocacy groups. See, e.g., App. to Brief for Appellant NRA et al. in No. 02-1675 et al., pp. 65a, 67a (Sen. Wellstone) ([I]ndividuals with all this wealth will make their soft money contributions to these sham issue ads run by all these . . . organizations, which under this loophole can operate with impunity to run poisonous ads. I have an amendment that . . . make[s] sure . . . this big money doesn't get [through]). Instead of deleting the Snowe-Jeffords Amendment from the bill, however, the Wellstone Amendment was inserted in a separate section to preserve severability. Were we to indulge the presumption that Congress understood the law when it legislated, the Wellstone Amendment could be understood only as a frontal challenge to MCFL. Even were I to agree with the majority's interpretation of § 204, however, my analysis of Title II remains unaffected. The First Amendment protects the right of all organizations, not just a subset of them, to engage in political speech. See Austin, 494 U.S., at 700-701 (KENNEDY, J., dissenting) (The First Amendment does not permit courts to exercise speech suppression authority denied to legislatures).
+Title II's vagueness and overbreadth demonstrate Congress' fundamental misunderstanding of the First Amendment. The Court, it must be said, succumbs to the same mistake. The majority begins with a denunciation of direct campaign contributions by corporations and unions. It then uses this rhetorical momentum as its leverage to uphold the Act. The problem, however, is that Title II's ban on electioneering communications covers general commentaries on political issues and is far removed from laws prohibiting direct contributions from corporate and union treasuries. The severe First Amendment burden of this ban on independent expenditures requires much stronger justifications than the majority offers. See Buckley, supra, at 23. The hostility toward corporations and unions that infuses the majority opinion is inconsistent with the viewpoint neutrality the First Amendment demands of all Government actors, including the Members of this Court. Corporations, after all, are the engines of our modern economy. They facilitate complex operations on which the Nation's prosperity depends. To say these entities cannot alert the public to pending political issues that may threaten the country's economic interests is unprecedented. Unions are also an established part of the national economic system. They, too, have their own unique insights to contribute to the political debate, but the law's impact on them is just as severe. The costs of the majority's misplaced concerns about the corrosive and distorting effects of immense aggregations of wealth, Austin, supra, at 660, moreover, will weigh most heavily on budget-strapped nonprofit entities upon which many of our citizens rely for political commentary and advocacy. These groups must now choose between staying on the sidelines in the next election or establishing a PAC against their institutional identities. PACs are a legal construct sanctioned by Congress. They are not necessarily the means of communication chosen and preferred by the citizenry. In the same vein the Court is quite incorrect to suggest that the mainstream press is a sufficient palliative for the novel and severe constraints this law imposes on the political process. The Court should appreciate the dynamic contribution diverse groups and associations make to the intellectual and cultural life of the Nation. It should not permit Congress to foreclose or restrict those groups from participating in the political process by constraints not applicable to the established press.",title ii provisions
+598,131149,2,1,"BCRA § 201, which requires disclosure of electioneering communications, including those coordinated with the party but independent of the candidate, does not substantially relate to a valid interest in gathering data about compliance with contribution limits or in deterring corruption. Contra, ante, at 196. As the above analysis of Title I demonstrates, Congress has no valid interest in regulating soft-money contributions that do not pose quid pro quo corruption potential. In the absence of a valid basis for imposing such limits the effort here to ensure compliance with them and to deter their allegedly corrupting effects cannot justify disclosure. The regulation does substantially relate to the other interest the majority details, however. See ibid. This assures its constitutionality. For that reason, I agree with the Court's judgment upholding the disclosure provisions contained in § 201 of Title II, with one exception. Section 201's advance disclosure requirement — the aspect of the provision requiring those who have contracted to speak to disclose their speech in advance — is, in my view, unconstitutional. Advance disclosure imposes real burdens on political speech that post hoc disclosure does not. It forces disclosure of political strategy by revealing where ads are to be run and what their content is likely to be (based on who is running the ad). It also provides an opportunity for the ad buyer's opponents to dissuade broadcasters from running ads. See Brief for Plaintiff-Appellant/Cross-Appellee National Right to Life Committee, Inc., et al. in No. 02-1733 et al., pp. 44-46, and nn. 42-43. Against those tangible additional burdens, the Government identifies no additional interest uniquely served by advance disclosure. If Congress intended to ensure that advertisers could not flout these disclosure laws by running an ad before the election, but paying for it afterwards, see ante, at 200, then Congress should simply have required the disclosure upon the running of the ad, Burdening the First Amendment further by requiring advance disclosure is not a constitutionally acceptable alternative. To the extent § 201 requires advance disclosure, it finds no justification in its subordinating interests and imposes greater burdens than the First Amendment permits. Section 212, another disclosure provision, likewise incorporates an advance disclosure requirement. The plaintiffs challenge only this advance disclosure requirement, and not the broader substance of this section. The majority concludes this challenge is not ripe. I disagree. The statute commands advance disclosure. The Federal Election Commission has issued a regulation under § 212 that, by its terms, does not implement this particular requirement. See 68 Fed. Reg. 404, 452 (2003) (to be codified at 11 CFR § 109.10(c)(d)). Adoption of a regulation that does not implement the statute to its full extent does not erase the statutory requirement. This is not a case in which a statute is ambiguous and the agency interpretation can be relied upon to avoid a statutory obligation that is uncertain or arguable. The failure of the regulation at this point to require advance disclosure is of no moment. Contra, 251 F. Supp. 2d, at 251 (per curiam). The validity of § 212 is an issue presented for our determination; it is ripe; and the advance disclosure requirement, for the reasons given when discussing the parallel provision under § 201, is unconstitutional. Contra, ante, at 212 (declining to address the ripeness question in light of the majority's rejection of the challenge to advance notice in § 201).",Disclosure Provisions
+599,145777,3,1,"a. Right of the People. The first salient feature of the operative clause is that it codifies a right of the people. The unamended Constitution and the Bill of Rights use the phrase right of the people two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people). All three of these instances unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some corporate body. [5] Three provisions of the Constitution refer to the people in a context other than rights—the famous preamble (We the people), § 2 of Article I (providing that the people will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with the States or the people). Those provisions arguably refer to the people acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a right attributed to the people refer to anything other than an individual right. [6] What is more, in all six other provisions of the Constitution that mention the people, the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990): `[T]he people' seems to have been a term of art employed in select parts of the Constitution . . . . [Its uses] sugges[t] that `the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. This contrasts markedly with the phrase the militia in the prefatory clause. As we will describe below, the militia in colonial America consisted of a subset of the people—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to keep and bear Arms in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as the people. We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. b. Keep and bear Arms. We move now from the holder of the right—the people—to the substance of the right: to keep and bear Arms. Before addressing the verbs keep and bear, we interpret their object: Arms. The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined arms as weapons of offence, or armour of defence. 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined arms as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of usage: Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms. See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing arms). Although one founding-era thesaurus limited arms (as opposed to weapons) to instruments of offence generally made use of in war, even that source stated that all firearms constituted arms. 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added). Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. We turn to the phrases keep arms and bear arms. Johnson defined keep as, most relevantly, [t]o retain; not to lose, and [t]o have in custody. Johnson 1095. Webster defined it as [t]o hold; to retain in one's power or possession. No party has apprised us of an idiomatic meaning of keep Arms. Thus, the most natural reading of keep Arms in the Second Amendment is to have weapons. The phrase keep arms was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to keep Arms as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to keep arms in their houses. 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, § 4, in 3 Eng. Stat. at Large 422 (1689) ([N]o Papist . . . shall or may have or keep in his House . . . any Arms . . .); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to keep arms in connection with militia service, and they conclude from this that the phrase keep Arms has a militia-related connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to file complaints with federal agencies, the phrase file complaints has an employment-related connotation. Keep arms was simply a common way of referring to possessing arms, for militiamen and everyone else. [7] At the time of the founding, as now, to bear meant to carry. See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with arms, however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of carries a firearm in a federal criminal statute, Justice GINSBURG wrote that [s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.' Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1998)). We think that Justice GINSBURG accurately captured the natural meaning of bear arms. Although the phrase implies that the carrying of the weapon is for the purpose of offensive or defensive action, it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that bear arms had in the 18th century. In numerous instances, bear arms was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to bear arms in defense of themselves and the state or bear arms in defense of himself and the state. [8] It is clear from those formulations that bear arms did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution's arms-bearing right, for example, as a recognition of the natural right of defense of one's person or house—what he called the law of self preservation. 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds.2007) (citing Pa. Const., Art. IX, § 21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (Thus the right of self-defence [is] guaranteed by the [Ohio] constitution); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts. [9] These provisions demonstrate—again, in the most analogous linguistic context—that bear arms was not limited to the carrying of arms in a militia. The phrase bear Arms also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. See Linguists' Brief 18; post, at 2827-2828 (STEVENS, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition against, which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶ 28, used the phrase: He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country . . . .) Every example given by petitioners' amici for the idiomatic meaning of bear arms from the founding period either includes the preposition against or is not clearly idiomatic. See Linguists' Brief 18-23. Without the preposition, bear arms normally meant (as it continues to mean today) what Justice GINSBURG's opinion in Muscarello said. In any event, the meaning of bear arms that petitioners and Justice STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby bear arms connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving bear Arms its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase keep and bear Arms would be incoherent. The word Arms would have two different meanings at once: weapons (as the object of keep) and (as the object of bear) one-half of an idiom. It would be rather like saying He filled and kicked the bucket to mean He filled the bucket and died. Grotesque. Petitioners justify their limitation of bear arms to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to keep arms. It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners' inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only bear arms but also carry arms, possess arms, and have arms—though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L.Rev. 237, 261 (2004). The common references to those fit to bear arms in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g., 30 Journals of Continental Congress 349-351 (J. Fitzpatrick ed.1934). Other legal sources frequently used bear arms in nonmilitary contexts. [10] Cunningham's legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms). And if one looks beyond legal sources, bear arms was frequently used in nonmilitary contexts. See Cramer & Olson, What Did Bear Arms Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol'y (forthcoming Sept. 2008), online at http://papers.ssrn.com/abstract= 1086176 (as visited June 24, 2008, and available in Clerk of Court's case file) (identifying numerous nonmilitary uses of bear arms from the founding period). Justice STEVENS points to a study by amici supposedly showing that the phrase bear arms was most frequently used in the military context. See post, at 2828-2829, n. 9; Linguists' Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study's collection appears to include (who knows how many times) the idiomatic phrase bear arms against, which is irrelevant. The amici also dismiss examples such as `bear arms . . . for the purpose of killing game' because those uses are expressly qualified. Linguists' Brief 24. (Justice STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 2828.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If bear arms means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (for the purpose of self-defense or to make war against the King). But if bear arms means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add for the purpose of killing game. The right to carry arms in the militia for the purpose of killing game is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that to bear arms is not limited to military use. [11] Justice STEVENS places great weight on James Madison's inclusion of a conscientious-objector clause in his original draft of the Second Amendment: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds.1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended bear Arms to refer only to military service. See post, at 2836. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. [12] In any case, what Justice STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though [i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense . . . must sometimes have been almost overwhelming. P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336-339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103-104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those scrupling the use of arms —a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison's deleted text is that those opposed to carrying weapons for potential violent confrontation would not be compelled to render military service, in which such carrying would be required. [13] Finally, Justice STEVENS suggests that keep and bear Arms was some sort of term of art, presumably akin to hue and cry or cease and desist. (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of keep arms.) Justice STEVENS believes that the unitary meaning of keep and bear Arms is established by the Second Amendment's calling it a right (singular) rather than rights (plural). See post, at 2830-2831. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular right, and the First Amendment protects the right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances. See, e.g., Pa. Declaration of Rights §§ IX, XII, XVI, in 5 Thorpe 3083-3084; Ohio Const., Arts. VIII, §§ 11, 19 (1802), in id., at 2910-2911. [14] And even if keep and bear Arms were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense. 49 The London Magazine or Gentleman's Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to the right of bearing arms for personal defence, making clear that no special military meaning for keep and bear arms was intended in the discussion. Id., at 467-468. [15] c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it shall not be infringed. As we said in United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876), [t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . . [16] Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. 1 W. & M., c. 2, § 7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States § 1858 (1833) (hereinafter Story) (contending that the right to bear arms is a limitatio[n] upon the power of parliament as well). But it was secured to them as individuals, according to libertarian political principles, not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979). By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, constituted the preeminent authority on English law for the founding generation, Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, the natural right of resistance and self-preservation, id., at 139, and the right of having and using arms for self-preservation and defence, id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that [i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence. A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed.1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed.1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone's Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the right of self-preservation as permitting a citizen to repe[l] force by force when the intervention of society in his behalf, may be too late to prevent an injury. 1 Blackstone's Commentaries 145-146, n. 42 (1803) (hereinafter Tucker's Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31-32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U.S. ___, 128 S.Ct. 1830, ___ L.Ed.2d ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.",Operative Clause.
+600,145777,3,2,"The prefatory clause reads: A well regulated Militia, being necessary to the security of a free State. . . . a. Well-Regulated Militia. In United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), we explained that the Militia comprised all males physically capable of acting in concert for the common defense. That definition comports with founding-era sources. See, e.g., Webster (The militia of a country are the able bodied men organized into companies, regiments and brigades . . . and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations); The Federalist No. 46, pp. 329, 334 (B. Wright ed.1961) (J. Madison) (near half a million of citizens with arms in their hands); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) ([T]he militia of the State, that is to say, of every man in it able to bear arms). Petitioners take a seemingly narrower view of the militia, stating that [m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16). Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that militia means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (to raise . . . Armies; to provide . . . a Navy, Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to provide for calling forth the militia, § 8, cl. 15; and the power not to create, but to organiz[e] it—and not to organize a militia, which is what one would expect if the militia were to be a federal creation, but to organize the militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia. Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective well-regulated implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (Regulate: To adjust by rule or method); Rawle 121-122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to a well-regulated militia, composed of the body of the people, trained to arms). b. Security of a Free State. The phrase security of a free state meant security of a free polity, not security of each of the several States as the dissent below argued, see 478 F.3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that the word `state' is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community. 1 Story § 208; see also 3 id., § 1890 (in reference to the Second Amendment's prefatory clause: The militia is the natural defence of a free country). It is true that the term State elsewhere in the Constitution refers to individual States, but the phrase security of a free state and close variations seem to have been terms of art in 18th-century political discourse, meaning a `free country' or free polity. See Volokh, Necessary to the Security of a Free State, 83 Notre Dame L.Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed.2002). Moreover, the other instances of state in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—each state, several states, any state, that state, particular states, one state, no state. And the presence of the term foreign state in Article I and Article III shows that the word state did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be necessary to the security of a free state. See 3 Story § 1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.",Prefatory Clause.
+601,145777,3,3,"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed.1981). John Smilie, for example, worried not only that Congress's command of the militia could be used to create a select militia, or to have no militia at all, but also, as a separate concern, that [w]hen a select militia is formed; the people in general may be disarmed. 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed.1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed.2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice BREYER's assertion that individual self-defense is merely a subsidiary interest of the right to keep and bear arms, see post, at 2841, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself. Besides ignoring the historical reality that the Second Amendment was not intended to lay down a novel principl[e] but rather codified a right inherited from our English ancestors, Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897), petitioners' interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee—it does not assure the existence of a citizens' militia as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. [17] That is why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government's Power to Enact Color-Conscious Laws, 92 Nw. U.L.Rev. 477, 521-525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens' right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation.",Relationship between Prefatory Clause and Operative Clause
+602,145777,3,1,"Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker's version of Blackstone's Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker's Blackstone 143. In Note D, entitled, View of the Constitution of the United States, Tucker elaborated on the Second Amendment: This may be considered as the true palladium of liberty. ... The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting keeping a gun or other engine for the destruction of game. Ibid; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if a law be passed by congress, prohibiting any of those rights, it would be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused. ... 1 id., at App. 357. It is unlikely that Tucker was referring to a person's being accused of violating a law making it a crime to bear arms in a state militia. [19] In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. ... The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. Rawle 121-122. [20] Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id., 122-123. Rawle clearly differentiated between the people's right to bear arms and their service in a militia: In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war. Id., at 140. Rawle further said that the Second Amendment right ought not be abused to the disturbance of the public peace, such as by assembling with other armed individuals for an unlawful purpose—statements that make no sense if the right does not extend to any individual purpose. Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice STEVENS suggests that [t]here is not so much as a whisper in Story's explanation of the Second Amendment that favors the individual-rights view. Post, at 2840. That is wrong. Story explained that the English Bill of Rights had also included a right to bear arms, a right that, as we have discussed, had nothing to do with militia service. 3 Story § 1858. He then equated the English right with the Second Amendment: § 1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, `that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.' But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege. (Footnotes omitted.) This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, [t]he passage from Story, shows clearly that this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights. Andrews v. State, 50 Tenn. 165, 183 (1871). Story's Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story § 1890, n. 2; § 1891, n. 3. In addition, in a shorter 1840 work Story wrote: One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. A Familiar Exposition of the Constitution of the United States § 450 (reprinted in 1986). Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone's description of the right, wrote that the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed. A Treatise on the Unconstitutionality of American Slavery 117-118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables personal defence). In his famous Senate speech about the 1856 Bleeding Kansas conflict, Charles Sumner proclaimed: The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that `the right of the people to keep and bear arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment. The Crime Against Kansas, May 19-20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606-607 (2006). We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. The provision of the constitution, declaring the right of the people to keep and bear arms, & c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it. B. Oliver, The Rights of an American Citizen 177 (1832).",Post-ratification Commentary
+603,145777,3,2,"The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24, 5 L.Ed. 19 (1820), this Court held that States have concurrent power over the militia, at least where not preempted by Congress. Agreeing in dissent that States could organize, discipline, and arm the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested. Id., at 51-53. Of course, if the Amendment simply protect[ed] the right of the people of each of the several States to maintain a well-regulated militia, post, at 2822 (STEVENS, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States' power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely confirms and illustrates the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either. Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms. Aldridge v. Commonwealth, 4 Va. 447, 2 Va. Cas. 447, 449 (Gen.Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia. [21] See also Waters v. State, 1 Gill 302, 309 (Md.1843) (because free blacks were treated as a dangerous population, laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness). An 1829 decision by the Supreme Court of Michigan said: The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose. United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed.1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any unlawful or unjustifiable purpose, but any nonmilitary purpose whatsoever. In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the  natural right of self-defence and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations. Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court's 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word militia at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to bear arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to protect[ion of] the public liberty and keep[ing] in awe those in power, id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners' reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right of all the free citizens of the State to keep and bear arms for their defence, Simpson, 13 Tenn. 356, 5 Yer., at 360; and 21 years later the court held that the keep portion of the state constitutional right included the right to personal self-defense: [T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace. Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment).",Pre-Civil War Case Law
+604,145777,3,3,"In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen's Bureau in 1866 stated plainly: [T]he civil law [of Kentucky] prohibits the colored man from bearing arms. ... Their arms are taken from them by the civil authorities. ... Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.  H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried: in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that `the right of the people to keep and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals. Joint Comm. on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton). The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that [a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves. Halbrook 19. Congress enacted the Freedmen's Bureau Act on July 16, 1866. Section 14 stated: [T]he right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens ... without respect to race or color, or previous condition of slavery. ... 14 Stat. 176-177. The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense. Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis). Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to `keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same. H.R.Rep. No. 37, 41st Cong., 3d Sess., pp. 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three indispensable safeguards of liberty ... under the Constitution a man's right to bear arms for the defense of himself and family and his homestead. Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because [a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense. Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.",Post-Civil War Legislation.
+605,145777,3,4,"Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. ... The alternative to a standing army is `a well-regulated militia,' but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts. Id., at 350. That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people. Id., at 270. In a section entitled The Right in General, he continued: It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order. Id., at 271. All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from each decade will convey the general flavor: [The purpose of the Second Amendment is] to secure a well-armed militia.... But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. ... The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected. J. Pomeroy, An Introduction to the Constitutional Law of the United States 152-153 (1868) (hereinafter Pomeroy). As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question. 2 J. Kent, Commentaries on American Law , n. 2 (O. Holmes ed., 12th ed. 1873) (hereinafter Kent). Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence. B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott). The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. ... [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed. J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891).",Post-Civil War Commentators.
+606,145671,1,4,"CLASS ACTION LIMITATIONS. — No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging— (A) a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security; or (B) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. Id., at 3230 (codified as amended at 15 U. S. C. § 78bb(f)(1)). [7] A covered class action is a lawsuit in which damages are sought on behalf of more than 50 people. [8] A covered security is one traded nationally and listed on a regulated national exchange. [9] Respondent does not dispute that both the class and the securities at issue in this case are covered within the meaning of the statute, or that the complaint alleges misrepresentations and omissions of material facts. The only disputed issue is whether the alleged wrongdoing was in connection with the purchase or sale of securities. Respondent urges that the operative language must be read narrowly to encompass (and therefore pre-empt) only those actions in which the purchaser-seller requirement of Blue Chip Stamps is met. Such, too, was the Second Circuit's view. But insofar as the argument assumes that the rule adopted in Blue Chip Stamps stems from the text of Rule 10b-5—specifically, the in connection with language, it must be rejected. Unlike the Birnbaum court, which relied on Rule 10b-5's text in crafting its purchaser-seller limitation, this Court in Blue Chip Stamps relied chiefly, and candidly, on policy considerations in adopting that limitation. 421 U. S., at 737. The Blue Chip Stamps Court purported to define the scope of a private right of action under Rule 10b-5—not to define the words in connection with the purchase or sale. Id., at 749 (No language in either [§ 10(b) or Rule 10b-5] speaks at all to the contours of a private cause of action for their violation). Any ambiguity on that score had long been resolved by the time Congress enacted SLUSA. See United States v. O'Hagan, 521 U. S. 642, 656, 664 (1997); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 285 (1992) (O'Connor, J., concurring in part and concurring in judgment); id., at 289-290 (SCALIA, J., concurring in judgment); United States v. Naftalin, 441 U. S. 768, 774, n. 6 (1979); see also 395 F. 3d, at 39 (acknowledging that [t]he limitation on standing to bring [a] private suit for damages for fraud in connection with the purchase or sale of securities is unquestionably a distinct concept from the general statutory and regulatory prohibition on fraud in connection with the purchase or sale of securities). Moreover, when this Court has sought to give meaning to the phrase in the context of § 10(b) and Rule 10b-5, it has espoused a broad interpretation. A narrow construction would not, as a matter of first impression, have been unreasonable; one might have concluded that an alleged fraud is in connection with a purchase or sale of securities only when the plaintiff himself was defrauded into purchasing or selling particular securities. After all, that was the interpretation adopted by the panel in the Birnbaum case. See 193 F. 2d, at 464. But this Court, in early cases like Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6 (1971), and most recently in SEC v. Zandford, 535 U. S. 813, 820, 822 (2002), has rejected that view. Under our precedents, it is enough that the fraud alleged coincide with a securities transaction—whether by the plaintiff or by someone else. See O'Hagan, 521 U. S., at 651. The requisite showing, in other words, is deception `in connection with the purchase or sale of any security,' not deception of an identifiable purchaser or seller. Id., at 658. Notably, this broader interpretation of the statutory language comports with the longstanding views of the SEC. See Zandford, 535 U. S., at 819-820. [10] Congress can hardly have been unaware of the broad construction adopted by both this Court and the SEC when it imported the key phrase—in connection with the purchase or sale—into SLUSA's core provision. And when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well. Bragdon v. Abbott, 524 U. S. 624, 645 (1998); see Cannon v. University of Chicago, 441 U. S. 677, 696-699 (1979). Application of that presumption is particularly apt here; not only did Congress use the same words as are used in § 10(b) and Rule 10b-5, but it used them in a provision that appears in the same statute as § 10(b). Generally, identical words used in different parts of the same statute are . . . presumed to have the same meaning. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). The presumption that Congress envisioned a broad construction follows not only from ordinary principles of statutory construction but also from the particular concerns that culminated in SLUSA's enactment. A narrow reading of the statute would undercut the effectiveness of the 1995 Reform Act and thus run contrary to SLUSA's stated purpose, viz., to prevent certain State private securities class action lawsuits alleging fraud from being used to frustrate the objectives of the 1995 Act. SLUSA § 2(5), 112 Stat. 3227. As the Blue Chip Stamps Court observed, class actions brought by holders pose a special risk of vexatious litigation. 421 U. S., at 739. It would be odd, to say the least, if SLUSA exempted that particularly troublesome subset of class actions from its pre-emptive sweep. See Kircher, 403 F. 3d, at 484. Respondent's preferred construction also would give rise to wasteful, duplicative litigation. Facts supporting an action by purchasers under Rule 10b-5 (which must proceed in federal court if at all) typically support an action by holders as well, at least in those States that recognize holder claims. The prospect is raised, then, of parallel class actions proceeding in state and federal court, with different standards governing claims asserted on identical facts. That prospect, which exists to some extent in this very case, [11] squarely conflicts with the congressional preference for national standards for securities class action lawsuits involving nationally traded securities. SLUSA § 2(5), 112 Stat. 3227. [12] In concluding that SLUSA pre-empts state-law holder class-action claims of the kind alleged in Dabit's complaint, we do not lose sight of the general presum[ption] that Congress does not cavalierly pre-empt state-law causes of action. Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996). But that presumption carries less force here than in other contexts because SLUSA does not actually pre-empt any state cause of action. It simply denies plaintiffs the right to use the class-action device to vindicate certain claims. The Act does not deny any individual plaintiff, or indeed any group of fewer than 50 plaintiffs, the right to enforce any state-law cause of action that may exist. Moreover, the tailored exceptions to SLUSA's pre-emptive command demonstrate that Congress did not by any means act cavalierly here. The statute carefully exempts from its operation certain class actions based on the law of the State in which the issuer of the covered security is incorporated, actions brought by a state agency or state pension plan, actions under contracts between issuers and indenture trustees, and derivative actions brought by shareholders on behalf of a corporation. 15 U. S. C. §§ 78bb(f)(3)(A)—(C), (f)(5)(C). The statute also expressly preserves state jurisdiction over state agency enforcement proceedings. § 78bb(f)(4). The existence of these carve-outs both evinces congressional sensitivity to state prerogatives in this field and makes it inappropriate for courts to create additional, implied exceptions. Finally, federal law, not state law, has long been the principal vehicle for asserting class-action securities fraud claims. See, e. g., H. R. Conf. Rep. No. 105-803, p. 14 (1998) (Prior to the passage of the Reform Act, there was essentially no significant securities class action litigation brought in State court). [13] More importantly, while state-law holder claims were theoretically available both before and after the decision in Blue Chip Stamps, the actual assertion of such claims by way of class action was virtually unheard of before SLUSA was enacted; respondent and his amici have identified only one pre-SLUSA case involving a state-law class action asserting holder claims. [14] This is hardly a situation, then, in which a federal statute has eliminated a historically entrenched state-law remedy. Cf. Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) (observing that a long history of state-law tort remedy add[ed] force to the presumption against pre-emption).",The core provision of SLUSA reads as follows: [6]
+607,88383,1,1,"Assumpsit for money had and received is an appropriate remedy to recover back moneys illegally exacted by a collector as taxes in all jurisdictions where no other remedy is given, unless the tax was voluntarily paid or some statutory conditions are annexed to the exercise of the right to sue, which were unknown at common law. Where the party assessed voluntarily pays the tax he is without remedy in such an action, but if the tax is illegal or was erroneously assessed, and he paid it by compulsion of law, or under protest, or with notice that he intends to institute a suit to test the validity of the tax, he may recover it back in such an action, unless the legislative authority, in the jurisdiction where the tax was levied, has prescribed some other remedy or has annexed some other conditions to the exercise of the right to institute such a suit. [] On the twenty-second of February, 1866, the legislature of Alabama passed a revenue act, and therein, among other things, levied a tax on all steamboats, vessels, and other water-crafts plying in the navigable waters of the State, at the rate of one dollar per ton of the registered tonnage thereof, to be assessed and collected at the port where such vessels are registered, if practicable, otherwise at any other port or landing within the State where such vessel may be. [] Five steamboats were owned by the plaintiffs, who were citizens of that State, doing business at Mobile under the firm name set forth in the record. All of the steamboats were duly enrolled and licensed in conformity to the act of Congress entitled An act for enrolling and licensing ships and vessels to be employed in the coasting trade of the United States, and the record shows that at the time the taxes, which are the subject of controversy, were imposed and collected, all those steamboats were engaged in the navigation of the Alabama, Bigbee, and Mobile Rivers, in the transportation of freight and passengers between the port of Mobile and other towns and landings on said rivers, within the limits of the State, the said rivers being waters navigable from the sea by vessels of ten or more tons burden. [†] Such steamboats are deemed ships and vessels of the United States, and as such are entitled to the privileges secured to such ships and vessels by the act of Congress providing for enrolling and licensing ships and vessels to be employed in that trade. [‡] Annexed to the agreed statement exhibited in the record is a schedule of the taxes imposed and collected, in which are also given the names of the respective steamboats, their tonnage and their value, and the proportion assessed by the county as well as that imposed by the State. Committed as the assessments were to the same person to collect, it is immaterial whether the taxes were assessed for the State or for the county, as the collector demanded the whole amount of the plaintiffs, and they paid the same under protest, the sums specified as county taxes including also a charge made by the collector for fees in collecting the money. Separately stated the taxes were as follows: On the steamboat C.W. Dorrance, 321 tons burden, valued at five thousand dollars, taxed, state tax $321, county tax $322.25; Flirt, tonnage 214 tons, valued at two thousand five hundred dollars, taxed, state tax $214, county tax $215.25; Cherokee, tonnage 310 tons, valued at fifteen thousand five hundred dollars, taxed, state tax $310, county tax $311.25; Coquette, tonnage 245 tons, valued at four thousand dollars, taxed, state tax $245, county tax $246.25; St. Charles, tonnage 331 tons, valued at fifteen thousand dollars, taxed, state tax $331, county tax $332.25; showing that the county tax as well as the state tax is one dollar per ton of the registered tonnage of the steamboats, exclusive of the fees charged by the collector. Demand of the taxes having been made by the collector, the plaintiffs protested that the same were illegal, but they ultimately paid the same to prevent the collector from seizing the steamboats and selling the same in case they refused to pay the amount. They paid the sum of two thousand eight hundred and forty-eight dollars and twenty-five cents as the amount of the taxes, fees, and expenses demanded by the defendant, and brought an action of assumpsit against the collector in the Circuit Court of the State for Mobile County to recover back the amount, upon the ground that the sum was illegally exacted. Judgment was rendered in that court for the plaintiffs, the court deciding that the facts disclosed in the agreed statement showed that the taxes were illegal, as having been levied in violation of the Federal Constitution. Appeal was taken by the defendant to the Supreme Court of the State, where the parties were again heard, but the Supreme Court of the State, differing in opinion from the Circuit Court where the suit was commenced, rendered judgment for the defendant, whereupon the plaintiffs sued out a writ of error and removed the record into this court for re-examination. I. Two principal objections were made to the taxes by the plaintiffs, as appears by the agreed statement, which is made a part of the record. (1) That the taxes as levied and collected were in direct contravention of the prohibition of the Constitution, that no State shall, without the consent of Congress, levy any duty of tonnage, and the proposition of the plaintiffs was and still is that the act of the legislature of the State directs in express terms that such taxes shall be levied on all steamboats, vessels, and other water-crafts plying in the navigable waters of the State. (2) That the State law levying the taxes violates the compact between the State and the United States, that all navigable waters within the said State shall forever remain public highways, free to the citizens of the said State and of the United States, without any tax, duty, impost, or toll therefor imposed by the said State. [] 1. Congress has prescribed the rules of admeasurement and computation for estimating the tonnage of American ships and vessels. [†] Viewed in the light of those enactments, the word tonnage, as applied to American ships and vessels, must be held to mean their entire internal cubical capacity, or contents of the ship or vessel expressed in tons of one hundred cubical feet each, as estimated and ascertained by those rules of admeasurement and of computation. [‡] Power to tax, with certain exceptions, resides with the States independent of the Federal government, and the power, when confined within its true limits, may be exercised without restraint from any Federal authority. They cannot, however, without the consent of Congress, lay any duty of tonnage, nor can they levy any imposts or duties on imports or exports, except what may be absolutely necessary for executing their inspection laws, as without the consent of Congress they are unconditionally prohibited from exercising any such power. Outside of those prohibitions the power of the States to tax extends to all objects within the sovereign power of the States, except the means and instruments of the Federal government. But ships and vessels owned by individuals and belonging to the commercial marine are regarded as the private property of their owners, and not as the instruments or means of the Federal government, and as such, when viewed as property, they are plainly within the taxing power of the States, as they are not withdrawn from the operation of that power by any express or implied prohibition contained in the Federal Constitution. [] Argument, therefore, to show that they may be taxed as other property belonging to the citizens of the State is hardly necessary, as the opposite theory is indefensible in principle, contrary to the generally received opinion, and is wholly unsupported by any judicial determination. Direct adjudication to support that proposition is not to be found in the reported decisions of this court, but there are several cases which concede that such a tax, if levied by a State, would be legal, and no doubt is entertained that the concession is properly made. [†] Such a concession, however, does not advance the argument much for the defendant, as it is not only equally true but absolutely certain that no State can, without the consent of Congress, lay any duty of tonnage, and the question still remains to be determined whether the taxes in this case were or were not levied as duties of tonnage, as it is clear, if they were, that the judgment of the State court must be reversed. Taxes levied by a State upon ships and vessels owned by the citizens of the State as property, based on a valuation of the same as property, are not within the prohibition of the Constitution, but it is equally clear and undeniable that taxes levied by a State upon ships and vessels as instruments of commerce and navigation are within that clause of the instrument which prohibits the States from levying any duty of tonnage, without the consent of Congress; and it makes no difference whether the ships or vessels taxed belong to the citizens of the State which levies the tax or the citizens of another State, as the prohibition is general, withdrawing altogether from the States the power to lay any duty of tonnage under any circumstances, without the consent of Congress. [] Annual taxes upon property in ships and vessels are continually laid, and their validity was never doubted or called in question, but if the States, without the consent of Congress, tax ships or vessels as instruments of commerce, by a tonnage duty, or indirectly by imposing the tax upon the master or crew, they assume a jurisdiction which they do not possess, as every such act falls directly within the prohibition of the Constitution. [†] Prior to the adoption of the Constitution the States attempted to regulate commerce, and they also levied duties on imports and exports and duties of tonnage, and it was the embarrassments growing out of such regulations and conflicting obligations which mainly led to the abandonment of the Confederation and to the more perfect union under the present Constitution. Congress possesses the power to regulate commerce with foreign nations and among the several States, and it is well-settled law that the word commerce, as used in the Constitution, comprehends navigation, and that it extends to every species of commercial intercourse between the United States and foreign nations and to all commerce in the several States, except such as is completely internal and which does not extend to or affect other States. [‡] Authority is also conferred upon Congress to lay and collect taxes, but this grant does not supersede the power of the States to tax for the support of their own governments, nor is the exercise of that power by the States, unless it extends to objects prohibited by the Constitution, an exercise of any portion of the power that is granted to the United States. Whether the act of laying and collecting taxes, duties, imposts, and excises was a branch of the taxing power or of the power to regulate commerce, was directly under consideration in the case last cited, and it was conclusively settled that the exercise of such a power must be classed with the power to levy taxes. Had the Constitution, therefore, contained no prohibition, it is quite clear that it would have been competent for the States to levy duties on imports, exports, or tonnage, as they had done under the Confederation. Tonnage duties are as much taxes as duties on imports or exports, and the prohibition of the Constitution extends as fully to such duties if levied by the States as to duties on imports or exports, and for reasons quite as strong as those which induced the framers of the Constitution to withdraw imports and exports from State taxation. Measures, however, scarcely distinguishable from each other may flow from distinct grants of power, as for example, Congress does not possess the power to regulate the purely internal commerce of the States, but Congress may enrol and license ships and vessels to sail from one port to another in the same State, and it is clear that such ships and vessels are deemed ships and vessels of the United States, and that as such they are entitled to the privileges of ships and vessels employed in the coasting trade. [] Ships and vessels enrolled and licensed under that act are authorized to carry on the coasting trade, as the act contains a positive enactment that the ships and vessels it describes, and no others, shall be deemed ships or vessels of the United States entitled to the privileges of ships and vessels employed in the trade therein described. [†] Evidently the word license, as used in that act, as the court say in that case, means permission or authority, and it is equally clear that a license to do any particular thing is a permission or authority to do that thing, and if granted by a person having power to grant it, that it transfers to the grantee the right to do whatever it purports to authorize. Unquestionably the power to regulate commerce includes navigation as well as traffic in its ordinary signification, and embraces ships and vessels as the instruments of intercourse and trade as well as the officers and seamen employed in their navigation. [] Steamboats, as well as sailing ships and vessels, are required to be enrolled and licensed for the coasting trade, and the record shows that all the steamboats taxed in this case had conformed to all the regulations of Congress in that regard, that they were duly enrolled and licensed for the coasting trade and were engaged in the transportation of passengers and freight within the limits of the State, upon waters navigable from the sea by vessels of ten or more tons burden. Tonnage duties, to a greater or less extent, have been imposed by Congress ever since the Federal government was organized under the Constitution to the present time. They have usually been exacted when the ship or vessel entered the port, and have been collected in a manner not substantially different from that prescribed in the act of the State legislature under consideration. Undisputed authority exists in Congress to impose such duties, and it is not pretended that any consent has ever been given by Congress to the State to exercise any such power. If the tax levied is a duty of tonnage, it is conceded that it is illegal, and it is difficult to see how the concession could be avoided, as the prohibition is express, but the attempt is made to show that the legislature in enacting the law imposing the tax, merely referred to the registered tonnage of the steamboats as a way or mode to determine and ascertain the tax to be assessed on the steamboats, and to furnish a rule or rate to govern the assessors in the performance of their duties. Suppose that could be admitted, it would not have much tendency to strengthen the argument for the defendant, as the suggestion concedes what is obvious from the schedule, that the taxes are levied without any regard to the value of the steamboats. But the proposition involved in the suggestion cannot be admitted, as by the very terms of the act, the tax is levied on the steamboats wholly irrespective of the value of the vessels as property, and solely and exclusively on the basis of their cubical contents as ascertained by the rules of admeasurement and computation prescribed by the act of Congress. By the terms of the law the taxation prescribed is at the rate of one dollar per ton of the registered tonnage thereof, and the ninetieth section of the act provides that the tax collector must, each year, demand of the person in charge of the steamboat whether the taxes have been paid, and if the person in charge fails to produce a receipt therefor by a tax collector, authorized to collect such taxes, the collector having the list must at once proceed to assess the same, and if the tax is not paid on demand he must seize such steamboat, &c., and after twenty days' notice, as therein prescribed, shall sell the same, or so much thereof, as will pay the taxes and expenses for keeping and costs. [] Legislative enactments, where the language is unambiguous, cannot be changed by construction, nor can the language be divested of its plain and obvious meaning. Taxes levied under an enactment which directs that a tax shall be imposed on steamboats at the rate of one dollar per ton of the registered tonnage thereof, and that the same shall be assessed and collected at the port where such steamboats are registered, cannot, in the judgment of this court, be held to be a tax on the steamboat as property. On the contrary the tax is just what the language imports, a duty of tonnage, which is made even plainer when it comes to be considered that the steamboats are not to be taxed at all unless they are plying in the navigable waters of the State, showing to a demonstration that it is as instruments of commerce and not as property that they are required to contribute to the revenues of the State. Such a provision is much more clearly within the prohibition in question than the one involved in a recent case decided by this court, in which it was held that a statute of a State enacting that the wardens of a port were entitled to demand and receive, in addition to other fees, the sum of five dollars for every vessel arriving at the port, whether called on to perform any service or not, was both a regulation of commerce and a duty of tonnage, and that as such it was unconstitutional and void. [] Speaking of the same prohibition, the Chief Justice said in that case that those words in their most obvious and general sense describe a duty proportioned to the tonnage of the vessel — a certain rate on each ton — which is exactly what is directed by the provision in the tax act before the court, but he added that it seems plain, if the Constitution be taken in that restricted sense, it would not fully accomplish the intent of the framers, as the prohibition upon the States against levying duties on imports or exports would be ineffectual if it did not also extend to duties on the ships which serve as the vehicles of conveyance, which was doubtless intended by the prohibition of any duty of tonnage. It was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty. Assume the rule to be as there laid down and all must agree that the levy of the tax in question is expressly prohibited, as the schedule shows that it is exactly proportioned to the registered tonnage of the steamboats plying in the navigable waters of the State. Strong as the language of the Chief Justice is in that case, it is no stronger than the language employed by the Supreme Court of the State to which this writ of error was addressed in the case of Sheffield v. Parsons, [†] in which the court in effect says that no tax, custom, or toll, can be levied on the tonnage of any vessel, without the consent of Congress, for any purpose. Precisely the same rule was applied by that court to vessels duly enrolled and licensed for the coasting trade, and which were exclusively engaged in the towage and lighterage business in the bay and harbor of Mobile, carrying passengers and freight between the city and vessels at the anchorage below the bar. [] Some stress was laid in that case upon the circumstance that the vessels taxed were engaged in transporting cargoes to and from vessels engaged in foreign commerce, bound to that port, but it is quite clear that that circumstance is entitled to no weight, as the prohibition extends to all ships and vessels entitled to the privileges of ships and vessels employed in the coasting trade, whether employed in commercial intercourse between ports in different States or between different ports in the same State. [†] Formerly harbor-masters, at the port of Charleston, by an ordinance of that city, might exact one cent per ton, once in every three months, of every steam packet or other vessel from certain adjoining States trading steadily there and performing regular successive voyages to that port, but when the question came to be presented to the Court of Errors of that State, the judges unanimously held that the exaction was a duty of tonnage, and that, as such, the provision was unconstitutional and void. [‡] Taxes in aid of the inspection laws of a State, under special circumstances, have been upheld as necessary to promote the interests of commerce and the security of navigation. [§] Laws of that character are upheld as contemplating benefits and advantages to commerce and navigation, and as altogether distinct from imposts and duties on imports and exports and duties of tonnage. Usage, it is said, has sanctioned such laws where Congress has not legislated, but it is clear that such laws bear no relation to the act in question, as the act under consideration is emphatically an act to raise revenue to replenish the treasury of the State and for no other purpose, and does not contemplate any beneficial service for the steamboats or other vessels subjected to taxation. Beyond question the act is an act to raise revenue without any corresponding or equivalent benefit or advantage to the vessels taxed or to the shipowners, and consequently it cannot be upheld by virtue of the rules applied in the construction of laws regulating pilot dues and port charges. [] Attempt was made in the case of Alexander v. Railroad to show that the form of levying the tax was simply a mode of assessing the vessels as property, but the argument did not prevail, nor can it in this case, as the amount of the tax is measured by the tonnage of the steamboats and not by their value as property. Reference is made to the case of the Towboat Company v. Bordelon [†] as asserting the opposite rule, but the court is of a different opinion, as the tax in that case was levied, not upon the boat but upon the capital of the company owning the boat, and the court in delivering their opinion say the capital of the company is property, and the constitution of the State requires an equal and uniform tax to be imposed upon it with the other property of the State for the support of government. For these reasons the court is of opinion that the State law levying the taxes in this case is unconstitutional and void, that the judgment of the State court is erroneous and that it must be reversed, and having come to that conclusion the court does not find it necessary to determine the other question. JUDGMENT REVERSED with costs, and the cause remanded for further proceedings in conformity to the opinion of the court.",in the first case.
+608,88383,1,2,"Much discussion of the questions involved in this record will not be required, as they are substantially the same as those presented in the preceding case, which have already been fully considered and definitely decided. Submitted, as the case was, in the court below, on a demurrer to the bill of complaint, and on the answer of the respondent, it will be necessary to refer to the pleadings to ascertain the nature of the controversy, by which it appears that the complainants are a corporation, created by the legislature of the State of Alabama, having their place of business at Mobile, in that State; that they were the owners of twelve steamboats, as alleged in the bill of complaint, filed by them on the twelfth of October, 1867, in the Chancery Court for that county, and that the respondent is the collector of taxes for that county, and a resident of the city of Mobile. Coming to the merits, the complainants allege that the respondent, as such collector, pretends and insists that they are liable under the laws of the State to pay a State tax of one dollar per ton of the registered tonnage of the said several steamboats, without any regard to their value as property; that he also claims that he, as such collector, is authorized by law to collect that amount of the complainants, and also another sum, equal to seventy-five per cent. of the State tax, for the county, and also another sum, equal to twenty-five per cent. of the State tax, as a school tax, making in all a tax of two dollars per ton of the registered tonnage of the said several steamboats, exclusive of the fees of the collector and assessor, amounting to one dollar and fifty cents on each of the said steamboats. All of the taxes in controversy in this case were levied by virtue of an act of the legislature approved February 19th, 1867, entitled An act to establish revenue laws for the State, and it is conceded that the provisions, so far as respects this controversy, are the same as the act under which the taxes were levied in the preceding case. [] Bills of the taxes, it is alleged, were rendered to the complainants, but it is not necessary to enter into these details, except to say that the taxes were levied in the same form as in the preceding case, and the complainants allege that the respondent claims that he is authorized, in case they refuse to pay the taxes, to seize the respective steamboats, and that he may proceed, after twenty days' notice, to sell the same, or as much thereof as will pay the taxes, expenses, and costs. They, the complainants, deny the legality of the taxes, and allege that the respondent, as such collector, threatens to seize the said steamboats and to proceed to sell the same to pay the taxes, expenses, and costs, which, they insist, would be contrary to equity. Being without any remedy at law, as they allege, they ask the interposition of a court of equity, and allege that the taxes are illegal upon two grounds, which are as follows: 1. That the tax is a duty of tonnage, levied in violation of the tenth section of the first article of the Constitution, and in support of that allegation they allege that all the steamboats, at the time the taxes were levied, were, and that they still are, duly enrolled and regularly licensed to engage in the coasting trade under and in pursuance of the revenue laws of the United States, and that all the duties imposed upon the steamboats by the laws of the United States have been paid and discharged. 2. That the law of the State levying the taxes is in violation of the act of Congress passed to enable the people of Alabama Territory to form a constitution and State government, and for the admission of the same into the Union, and of the ordinance passed by the people of the Territory accepting that provision. [†] Wherefore they pray for process and for an injunction. Process was issued and served, and the respondent appeared and filed an answer, setting up the validity of the taxes, and alleging that the taxes were not intended to be a tonnage duty, but simply and only a tax on the personal property held by the complainants. He also demurred to the bill of complaint, insisting that nothing alleged and charged therein was sufficient to require a further answer. Prior to the filing of the answer the chancellor granted a temporary injunction, and the cause having been subsequently submitted to the court on bill and answer, the chancellor entered a decree making the injunction perpetual, and the respondent appealed to the Supreme Court of the State, where the injunction was dissolved and the bill of complaint was dismissed. Dissatisfied with that decree the complainants sued out a writ of error and removed the cause into this court. Different remedies are accorded to a complaining party in different jurisdictions for grievances such as the one set forth in the bill of complaint before the court. Usually preventive remedies are discountenanced as embarrassing to the just operations of the government, and the party taxed is required to pay the tax and seek redress in an action of assumpsit against the collector for money had and received. Decided cases may also be referred to where it is held that trespass will lie against the assessor, if it appear that the whole tax was levied without authority, as in that state of the case it is held that the assessor had no jurisdiction of the subject-matter. Preventive remedies, however, are accorded in some of the States, and in cases brought here by writ of error under the twenty-fifth section of the Judiciary Act, if no objection was taken in the court below to the form of the remedy employed, and none is taken in this court, it may safely be assumed that the proceeding adopted was regarded in the court below as an appropriate remedy for the alleged grievance. Doubts upon that subject cannot be entertained in this case, as the record shows that both courts heard and determined the case upon the merits, and all parties conceded throughout the litigation that the complainants were entitled to the relief prayed in the bill of complaint, if the taxes were illegal, and the law levying the same was unconstitutional and void. Power to tax for the support of the State governments exists in the States independently of the Federal government, and it may well be admitted that where there is no cession of jurisdiction for the purposes specified in the Constitution, and no restraining compact between the States and the Federal government, the power in the States to tax reaches all the property within the State which is not properly denominated the instruments or means of the Federal government. [] Concede all that and still the court is of the opinion that the tax in this case is a duty of tonnage, and that the law imposing it is plainly unconstitutional and void. Taxes, as the law provides, must be assessed by the assessor in each county on and from the following subjects and at the following rates, to wit: On all steamboats, &c., plying in the navigable waters of the State, at the rate of one dollar per ton of the registered tonnage thereof, which must be assessed and collected at the port where such steamboats are registered, &c. [†] Copied as the provision is from the enactment of the previous year, it is obvious that it must receive the same construction, and as the tax is one dollar per ton it is too plain for argument that the amount of the tax depends upon the carrying capacity of the steamboat and not upon her value as property, as the experience of every one shows that a small steamer, new and well built, may be of much greater value than a large one, badly built or in need of extensive repairs. Separate lists are made for the county and school taxes, but the two combined amount exactly to one dollar per ton, as in the levy for the State tax, and the court is of the opinion that the case falls within the same rule as the case just decided. Evidently the word tonnage in commercial designation means the number of tons burden the ship or vessel will carry, as estimated and ascertained by the official admeasurement and computation prescribed by the public authority. Regulations upon the subject are enacted by Parliament in the parent country and by Congress in this country, as appears by several acts of Congress. [] Tonnage, says a writer of experience, has long been an official term intended originally to express the burden that a ship would carry, in order that the various dues and customs which are levied upon shipping might be levied according to the size of the vessel, or rather in proportion to her capability of carrying burden. Hence the term, as applied to a ship, has become almost synonymous with that of size. [†] Apply that interpretation to the word tonnage as used in the tax act under consideration, and it is as clear as anything can be in legislation that the tax imposed by that provision is a tonnage tax, or duty of tonnage, as the phrase is in the Constitution. State authority to tax ships and vessels, it is supposed by the respondent, extends to all cases where the ship or vessel is not employed in foreign commerce or in commerce between ports or places in different States. He concedes that the States cannot levy a duty of tonnage on ships or vessels if the ship or vessel is employed in foreign commerce or in commerce among the States, but he denies that the prohibition extends to ships or vessels employed in commerce between ports and places in the same State, and that is the leading error in the opinion of the Supreme Court of the State. Founded upon that mistake the proposition is that all taxes are taxes on property, although levied on ships and vessels duly enrolled and licensed, if the ship or vessel is not employed in foreign commerce or in commerce among the States. Ships or vessels of ten or more tons burden, duly enrolled and licensed, if engaged in commerce on waters which are navigable by such vessels from the sea, are ships and vessels of the United States entitled to the privileges secured to such vessels by the act for enrolling or licensing ships or vessels to be employed in the coasting trade. [] Such a rule as that assumed by the respondent would incorporate into the Constitution an exception which it does not contain. Had the prohibition in terms applied only to ships and vessels employed in foreign commerce or in commerce among the States, his construction would be right, but courts of justice cannot add any new provision to the fundamental law, and, if not, it seems clear to a demonstration that the construction assumed by the respondent is erroneous. DECREE REVERSED and the cause remanded for further proceedings in conformity to the opinion of this court.",in the second case.
+609,105739,1,1,"Solicitor General Rankin argued the cause for the United States. With him on the brief were Assistant Attorney General Doub, Paul A. Sweeney and Herman Marcuse.",H. Wachtel argued the cause and filed a brief for petitioner.
+610,105539,2,1,"When the Department's proceedings against the petitioner, which resulted in the clearances of October 6, 1950, and July 31, 1951, were begun, the Regulations in effect were those of March 11, 1949, entitled Regulations and Procedures relating to Loyalty and Security of Employees, U. S. Department of State. [14] Section 391 stated the Authority and General Policy of the Regulations in three subsections. Subsection 391.1 stated that it was highly important to the interest of the United States that no person be employed in the Department who is disloyal or who constitutes a security risk. Subsection 391.2 stated that so far as the Regulations related to the handling of loyalty cases, they were promulgated in accordance with Executive Order No. 9835, which had recognized the necessity for removing disloyal employees from the Federal service and for refusing employment therein to disloyal persons, and the obligation to protect employees and applicants from unfounded accusations of disloyalty. Subsection 391.3 referred to the language of the McCarran Rider, noting that the Secretary of State had been granted by Congress the right, in his absolute discretion, to terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States. In the exercise of this right, the subsection concluded, the Department will, so far as possible, [15] afford its employees the same protection as those provided under the Loyalty Program. And, as we shall see hereafter, the Regulations made no provision for action by the Secretary himself, under the McCarran Rider or otherwise, except following unfavorable action in the employee's case by the Department Loyalty Security Board, after full hearing before that Board on the charges against him, and approval of the Board's action by the Deputy Under Secretary. [16] In May and September 1951, prior to the time of petitioner's discharge, the Regulations were revised, and the amended § 391 provided even more explicitly than the original that the procedures and standards established were intended to govern exercise of the authority granted by the McCarran Rider. After stating in the first subsection [17] that the Regulations were adopted to implement the Department's policy that no person be employed in the Department [18] who is disloyal or who constitutes a security risk, the section continues in the next two subsections [19] to state in effect that the Regulations relating to the handling of loyalty cases were promulgated in accordance with Executive Order No. 9835, and that those relating to security cases were promulgated under the authority of the Act of August 26, 1950 [20] and the McCarran Rider. [21] The phrase so far as possible, in reference to McCarran Rider authority, was deleted. The Regulations thus drew upon all the sources of authority available to the Secretary with reference to such cases, and purported to set forth definitively the procedures and standards to be followed in their handling.",The Regulations.
+611,105539,2,2,"The administrative proceedings held in petitioner's case were unquestionably conducted on the premise that the Regulations were applicable in this instance. The charges were based on the Regulations, and a copy of the Regulations was sent to Service along with the letter of charges. The hearing was scheduled under § 395 of the 1949 Regulations. In its opinion exonerating Service, the Department Board noted, following the Regulations, that the issues here are (1) loyalty, and (2) security risk. The Board's favorable recommendations came twice before the Deputy Under Secretary for review under §§ 395.6 and 396.7 of these Regulations, and were approved by him. Later, before the Civil Service Commission's Loyalty Review Board, an additional charge was added to the Department's original charges by stipulation of the parties, and the stipulation expressly referred to §§ 392.2 and 393.1a of the Regulations. Indeed, at no time during any of the administrative proceedings in this case was there any suggestion that the Regulations were not applicable to the entire proceedings and binding upon all parties to the case.",The Administrative Proceedings in this Case.
+612,105539,2,3,"In the spring of 1950, the Department of State submitted to an investigating subcommittee of the Senate Foreign Relations Committee a comprehensive report on the procedures and standards used by the Department in dealing with employee loyalty and security problems. After describing the procedures utilized by the Department in the early post-war period, the report continued as follows: . . . The policy of the Department prior to the passage of the McCarran rider was that if there was reasonable doubt as to an employee's loyalty, his employment was required to be terminated. The McCarran rider freed the hands of the Department in making this policy effective. Basically any reasonable doubt of an employee's loyalty if based on substantial evidence was to be resolved in favor of the Government. After enactment of the McCarran rider the Department did not contemplate that the legislation required or that the people of this country would countenance the use of `Gestapo' methods or harassment or persecution of loyal employees who were American citizens on flimsy evidence or hearsay and innuendo. The Department proceeded to develop appropriate procedures designed to implement fully and properly the authority granted the Department under the McCarran rider. The McCarran rider . . . was the first of a series of provisions included in each subsequent appropriation act which authorized the Secretary of State in his absolute discretion to `terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States.' Accordingly, effective during the 1947 fiscal year, and each fiscal year thereafter, the Department considered the McCarran rider as an additional standard for dealing with security problems in the Department.. . . In [its] considered view the McCarran rider was subject to procedural limitations. The McCarran rider was not interpreted as permitting reckless discharge or the exercise of arbitrary whims. ..... The President's loyalty order of March 21, 1947, prescribed a comprehensive set of standards governing the executive branch as a whole. It was deemed applicable to the Department of State, as well as to other agencies. The unique powers conferred on the Department as a result of continuous reenactment of the McCarran rider led the Department to promulgate regulations which would encompass its duties and powers both under the Executive order and under the McCarran rider.  [22]",The Department's Representations to Congress.
+613,105539,2,4,"That the policy of the Secretary to subject his plenary powers under the McCarran Rider to procedural limitations was deliberately adopted, and rested on decisions taken at the highest level, is evidenced by a letter dated September 6, 1950, from President Truman to the Secretary of State, which was made a part of the record below. In that letter, the President advised the Secretary that he had just approved H. R. 7786, the General Appropriation Act, 1951, 64 Stat. 595, 768, § 1213 of which re-enacted the McCarran Rider for the current fiscal year. The President continued: I am sure you will agree that in exercising the discretion conferred upon you by Section 1213, every effort should be made to protect the national security without unduly jeopardizing the personal liberties of the employees within your jurisdiction. Procedures designed to accomplish these two objectives are set forth in Public Law 733, 81st Congress, which authorizes the summary suspension of civilian officers and employees of various departments and agencies of the Government, including the Department of State. In order that officers and employees of the Department of State may be afforded the same protection as that afforded by Public Law 733, it is my desire that you follow the procedures set forth in that law in carrying out the provisions of section 1213 of the General Appropriations Act. In view of the terms of the Regulations, the course of procedure followed by the Department, and the background materials we have noted, we think that there is no room for doubt that the departmental Regulations for the handling of loyalty and security cases were both intended and considered by the Department to apply in this instance. We cannot accept either of the respondents' present arguments to the contrary. The first argument, as put by the District Court, whose language was adopted by the Court of Appeals, [23] is: . . . It was not the intent of Congress that the Secretary of State bind himself to follow the provisions of Executive Order 9835 in dismissing employees under Public Law 188. This power of summary dismissal would not have been granted the Secretary of State by the Congress if the Congress was satisfied that the interests of this country were adequately protected by Executive Order 9835. We gather from this that the lower courts thought that the Secretary was powerless to bind himself by these Regulations as to McCarran Rider discharges based on loyalty or security grounds. We do not think this is so. Although Congress was advised in unmistakable terms that the Secretary had seen fit to limit by regulations the discretion conferred upon him, see pp. 377-378, supra, it continued to re-enact the McCarran Rider without change for several succeeding years. [24] Cf. Labor Board v. Gullett Gin Co., 340 U. S. 361, 366; Fleming v. Mohawk Co., 331 U. S. 111, 116. Nor do we see any inconsistency between this statute and the effect of the Regulations upon the Secretary under Accardi v. Shaughnessy, 347 U. S. 260, already discussed, pp. 372-373, supra. Accardi, indeed, involved statutory authority as broad as that involved here. [25] The respondents' second argument is that the Regulations refer explicitly to discharges based on loyalty and security grounds, but make no reference to discharges deemed necessary or advisable in the interests of the United States—the sole McCarran Rider standard—and hence were not applicable to such discharges. But, as has already been demonstrated, both the Regulations and their historical context show that the Regulations were applicable to McCarran Rider discharges, at least to the extent that they were based on loyalty or security grounds, and we do not see how it could seriously be considered, as the respondents now seem to urge, that Service was not discharged on such grounds. The Secretary's affidavit, [26] and also the Department's formal notice to Service of his discharged, [27] both of which, among other things, refer to Executive Order No. 9835 as well as to the McCarran Rider as authority for the Secretary's action, unmistakably show that the discharge was based on such grounds. We now turn to the question whether the manner of petitioner's discharge was consistent with the Department's Regulations.",The President's Letter.
+614,105730,1,1,"This litigation involves a dispute between landowners on the one hand and the combined State and Federal Governments on the other. As the Attorney General of California points out, there is no clash here between the United States and the State of California. Quite to the contrary, the United States and the various state agencies, with commendable faith and steadfastness to one another, have embarked upon and nearly completed a most complicated joint venture known as the Central Valley Project. There have at times been differences, but these are inevitable in the everyday implementation of such a giant undertaking. On the whole the parties have kept the ultimate goal firmly centered in their joint vision. Central Valley is the largest single undertaking yet embarked upon under the federal reclamation program. It was born in the minds of far-seeing Californians in their endeavor to bring to that State's parched acres a water supply sufficiently permanent to transform them into veritable gardens for the benefit of mankind. Failing in its efforts to finance such a giant undertaking, California almost a quarter of a century ago petitioned the United States to join in the enterprise. The Congress approved and adopted the project, pursuant to repeated requests of the State, and thus far has expended nearly half a billion dollars. The total cost is estimated to be as high as a billion dollars. The saga of this project is fascinating. California has two somewhat parallel ranges of mountains running south from its northern border for two-thirds the length of the State. Known as the Sierra Nevada on the east and the Coast Range on the west, they converge on the north at Mount Shasta and are joined by the Tehachapi Mountains on the south, thereby forming the Central Valley Basin. The basin extends almost 500 miles between these ranges, from Shasta to Bakersfield, and has an average width of 120 miles, including more than a third of the area of California. The main valley floor, comprising about a third of the basin area, is an alluvial plain some 400 miles long and averaging 45 miles in width. The Sacramento River, with headwaters near Mount Shasta, flows south into San Francisco Bay, draining the northern portion of the basin. The San Joaquin River, which rises above Friant in the south, runs first west then north to join the Sacramento River in the Sacramento-San Joaquin Delta, both finding a common outlet to the ocean through San Francisco Bay. See United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950). Rainfall on the valley floor comes during the winter months—85% from November to April—and summers are quite dry. At Red Bluff, just south of Mount Shasta, the average is 23 inches, while south at Bakersfield a scant 6 inches fall. The climate is ideal with a frostfree period of over seven months and a mild winter permitting production of some citrus as well as deciduous fruits and other specialized crops. The absence of rain, however, makes irrigation essential, particularly in the southern region. In the mountain ranges precipitation is greater, and the winters more severe. The Northern Sierras average 80 inches of rainfall and the Southern 35 inches. The Coast Range experiences much less. In the higher recesses of the mountains precipitation is largely snow which, when it melts, joins the other runoff of the mountain areas to make up an annual average of 33,000,000 acre-feet of water coming from the mountain regions. Nature has not regulated the timing of the runoff water, however, and it is estimated that half of the Sierra runoff occurs during the three months of April, May, and June. Resulting floods cause great damage, and waste this phenomenal accumulation of water so vital to the valley's rich alluvial soil. The object of the plan is to arrest this flow and regulate its seasonal and year-to-year variations, thereby creating salinity control to avoid the gradual encroachment of ocean water, providing an adequate supply of water for municipal and irrigation purposes, facilitating navigation, and generating power. The plan is now nearing completion and is actually in partial operation in some areas. The completed project is built around these two great rivers, and includes a series of dams, three of which— Shasta, Folsom, and Trinity River—will furnish electric power. The state water plan contemplates that eventually 38 major reservoirs scattered at various points in this part of the State will store an estimated 30,000,000 acre-feet of water. The Shasta Dam and Reservoir sits at the head of the table on the north. With a capacity of 4,500,000 acre-feet of water, it, along with tributary dams and reservoirs, will control the floods from that area. The Trinity River, with headwaters west of Shasta on the western slope of the Coast Range, drains into the Pacific Ocean. A dam now under construction near Lewiston will impound some three-quarters of a million acre-feet of water which, by means of a tunnel, will be partially diverted into and supplement the waters of the Sacramento River lying to the east and across the mountains. The water supply facilities along the Sacramento River will regulate its flow, store surplus winter runoff for use in the Sacramento Valley, maintain navigation in the channel, protect the Sacramento-San Joaquin Delta from salt intrusion from the Pacific, provide a water supply for the Contra Costa and Delta-Mendota Canals, and generate a great deal of hydroelectric energy. The Contra Costa Canal services the south shore of Suisun Bay from Antioch to Martinez with water from the Delta for domestic, industrial, and irrigation use. The Delta-Mendota Canal transports surplus Sacramento River water to Mendota Pool on the San Joaquin River, 120 miles south of the Delta. The water is pumped from the Delta to the canal along the foothills of the Coast Range and by gravity it runs to the pool at Mendota. This exchange of water replaces that diverted from the San Joaquin by the dam at Friant. This latter dam forces the entire flow of the San Joaquin into Millerton Lake which has a capacity of 520,000 acre-feet of water. It is diverted from the lake by the Madera Canal to the north and the Friant-Kern Canal to the south. The former extends about 37 miles in length and services the Madera District, while the latter supplies water to the Ivanhoe District and others to the south. It will extend south about 160 miles to a point near Bakersfield, which sits at the foot of the Central Valley's enormous table. The power facilities of the project will, when finally completed, have a capacity of near a million kilowatts. Transmission lines, steam plants, and other essential facilities will be constructed so as to obtain the maximum utilization. It is estimated that through the sale of this power the United States will receive reimbursement for over half of its total reimbursable expenditures. The over-all allocation of these enormous costs has not been definitely determined. That portion of the costs ultimately allocated to power facilities will be reimbursed at 4% interest, but that allocated to irrigation facilities will be reimbursed at no interest. Moreover, the Federal Government will receive no reimbursement for that portion of the cost allocated to numerous aspects of the project, such as navigation, flood control, salinity prevention, fish and wildlife preservation, and recreation. The irrigators will, therefore, be chargeable with but a small fraction of the total cost of the project. We hasten to correct any impression that lands in the Central Valley had not been reclaimed and irrigated at the inception of the project. On the contrary, since California entered the Union it has worked diligently to bring water to its arid lands. Working largely through state irrigation districts, private interests have been ingenious in constructing smaller reservoirs, tapping underground sources, and attempting to prevent saline encroachment which would destroy the soil for agricultural purposes. Water has been called the life blood of the State. Competition for this vital natural resource has provoked such controversy that it has required amendments to the Constitution and continual legislative activity. It is not at all surprising, therefore, that in putting together the mosaic of Central Valley some litigation would ensue. See United States v. Gerlach Live Stock Co., supra .",the background of the litigation.
+615,105730,1,2,"These four appeals contest the right of the United States and California to complete the venture and reap the rewards therefrom as provided by their respective laws. It should be noted that the appeal involving the Santa Barbara County Water Agency, No. 125, does not involve the Central Valley Project, as it does not lie within that area. It concerns a project to supply water for irrigation and municipal uses along the south coastal area of Santa Barbara County. It includes a dam on the Santa Ynez River impounding water in Cachuma Reservoir. This river rises on the western slopes of the Coast Range and runs into the Pacific. The Tecolote Tunnel will deliver water across the coastal range of mountains to the Santa Barbara County Agency through the lateral distribution systems of the Goleta and Carpenteria County Water Districts. The adoption of the project by the Congress in 1948 was based on the recommendation of the State Division of Water Resources Report stating that there was an urgent and immediate need for substantial supplemental municipal and irrigation water supplies . . . . The city of Santa Barbara has a critical water situation at this time. . . . The underground water supplies in the county water districts are being seriously overdrawn. In some localities . . . wells are being damaged by salt water intrusion. H. R. Doc. No. 587, 80th Cong., 2d Sess. 10. While the contract is authorized under § 9 (c) of the 1939 Act, [5] for our purposes it is identical to the others and will be discussed with them. The remaining appeals involve areas in the southern portion of the Central Valley Basin. The Madera District includes the Friant Dam and Millerton Lake, the sites for which the United States has purchased outright. Water rights surrounding these areas were involved in United States v. Gerlach Live Stock Co., supra , and have been acquired by the United States. These installations are, of course, vital to the operation of the project in the south of the valley. The Madera District will be furnished water from Millerton Lake by the Madera Canal. The Ivanhoe District is south of Friant and will be supplied water through the Friant-Kern Canal. It is interesting to note that irrigators in this district receive water diverted from the San Joaquin in which they never had nor were able to obtain any water right. The contracts to which the Supreme Court of California took exception provide, in outline, that the United States will, after construction of the water supply facilities and the lateral distribution system for the irrigation districts, furnish water to the districts and the Santa Barbara County Agency for a period of 40 years. Incorporating the requirements of § 5 of the Reclamation Act of 1902, [6] the contract provides that project water shall not be furnished to lands in excess of 160 acres in single ownership. This limitation applies only to project water and previously existing water supplies are unaffected thereby. Large landowners, i. e., those who own excess land, who wish that excess to have the benefit of project water must agree to sell their excess to other than large landowners within 10 years at a price, fixed by three appraisers, which will exclude potential enhancement of the price by reason of project water being available. Large landowners electing not to sell their excess may use existing water supplies in underground sources. Moreover, if they designate which of their holdings shall be considered nonexcess, the district would furnish water to that land under the terms provided in the contracts. The repayment provisions as to the distribution systems require liquidation of the maximum stated expenditure of the United States by installments spread over 40 years, without interest, in accordance with § 9 (d) of the Reclamation Project Act of 1939. As to the water supply facilities, such as the dams and reservoirs, the contracts employ the more liberal provisions of § 9 (e) of that Act. [7] Repayment, without interest, is to be included in the charge for water sold to the districts and the agency by the United States. The contract term runs for 40 years and, using the language of § 9 (e), the water rate is calculated so as to return to the United States revenues at least sufficient to cover an appropriate share of the annual operation and maintenance cost and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation. The Congress has now supplemented these terms of the contracts by the Act of July 2, 1956, 70 Stat. 483. It provides that the districts and the agency shall be given credit each year for so much of the amount paid . . . as is in excess of the share of the operation and maintenance costs of the project which the Secretary finds is properly chargeable. . . . The provision is retroactive and runs with the contract, and when this amount is equal to the amount owing on the total water supply expenditures allocated to irrigation, no construction component shall be included in any charges made for the furnishing of water . . . . The Act also permits renewal of the contract on terms that will reflect any increases or decreases in construction, operation, and maintenance costs and improvement or deterioration in the [district's] repayment capacity. In addition, the Act provides that the districts and the agency shall . . . have a first right (to which right the rights of the holders of any other type of irrigation water contract shall be subordinate) to a stated share or quantity of the project's available water supply for beneficial use on the irrigable lands [within the district] and a permanent right to such share or quantity upon completion of payment of the amount that is due on expenditures for water supply allocated to irrigation.",scope of the appeals and nature of the contracts.
+616,105730,1,3,"In the confirmation suits involving the Ivanhoe District, No. 122, and of the Madera District, No. 123, the trial court found the contracts and the proceedings leading to their execution invalid. The court reasoned that § 8 of the 1902 Act required that whenever there is a conflict between the Federal Reclamation laws and the laws of the State, the law of California must prevail. The court also found that in the light of the origin of the Central Valley Project, the United States was trustee of an express trust of which the Ivanhoe District and others were among the beneficiaries. It concluded that all applications to appropriate water are included in such trust and the beneficiaries have an incomplete, incipient and conditional right in the water applied for which is vested and runs with the land. The excess land provision was declared invalid and unenforceable as conflicting with both state law and the Reclamation Act. Application of the excess land provision to an irrigator would, the court found, be unconstitutional. The Albonico litigation, No. 124, was an application for a mandatory order excluding lands in excess of 320 acres owned by the Albonicos from the Madera District. The court held that the excess land provisions were unconstitutional and that if applied to the Albonicos the mandatory order should issue. The trial court in the Santa Barbara confirmation case, No. 125, contrary to the action in the other cases, upheld the contract and granted confirmation. The court found that the Master Contract was ratified and confirmed by the Interior Department's Appropriation Act for 1951. 64 Stat. 595, 679. The Supreme Court of California, by a 4-3 vote, reversed the trial court judgment validating the contract in No. 125, the Santa Barbara case, and affirmed each of the other judgments. The principal opinion was in the Ivanhoe case to which we confine our discussion. The majority agreed with the trial court that § 8 of the 1902 Act required the application of state law. It found that the excess lands provision was inapplicable and improper under state law, and that the contract was therefore invalid. This conclusion was posited on a trust theory of California water law which placed a trust on the State and the irrigation districts for the benefit of water users. In administering this trust the United States, the majority held, stood in the shoes of the State. The § 9 (e) provisions of the contract were found invalid on the grounds that no provision was made for repayment of a stated amount within 40 years or for transfer of title to the distribution systems to the respective districts after payment thereof, and that no permanent right to receive water was vested in the respective districts and their members. The court appears to have reached this conclusion by finding that the contract created a debtor-creditor relationship and that the United States was acting as a public utility without conforming to state law.",action of the california courts.
+617,105730,1,4,"We first face the dual aspects of the jurisdictional question: has California's Supreme Court held a federal statute unconstitutional, and does its decision rest on an adequate state ground? Flournoy v. Wiener, 321 U. S. 253, 262 (1944). As we read the reasons, heretofore mentioned, upon which the Supreme Court of California invalidated the contracts, we conclude that they rest upon neither ground. As to the rights and duties of the United States under the contracts, these are matters of federal law on which this Court has final word. Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). Our construction of the contract might dispel any features thereof found offensive. The other ground, namely, the 160-acre limitation, alone requires further consideration. Appellants claim that California's Supreme Court has held unconstitutional the federal statutes, § 5 of the Reclamation Act of 1902, as re-enacted in § 46 of the Omnibus Adjustment Act of 1926, relating to the 160-acre limitation. It appears to us, however, that the opinion actually turned on the court's interpretation of § 8 of the 1902 Act. In effect, the court held that this section overrides all other sections of the Act, requiring that it be construed as not affecting state laws relating to the control, appropriation, use, or distribution of water used in irrigation. Turning to state law, the court by applying a trust theory held that the Federal Government could acquire no title to appropriative water rights free of a trust in the State of California for the benefit of the people of the State. This limited measure of control of the appropriative water, the court said, 47 Cal. 2d, at 620, 306 P. 2d, at 837, prevented the imposition of the 160-acre limitation because the beneficiaries of the trust, namely, the people of the State and particularly those in the districts involved, would be deprived by the acreage limitation of a right to the use of the water in the district. We think it plain that this was a construction of federal law and not a holding of unconstitutionality. This, of course, provides no basis for an appeal, but the importance of the case, as we earlier noted, requires that certiorari be granted. We deem it equally clear that the judgments do not rest on an adequate state ground. The construction the opinion gave to § 8 of the 1902 Act nullified the specific mandate of § 5, as well as its re-enactment in the 1926 Act, and even though in the doing a state law may have been called into play, this would not immunize it from this Court's review. Basically it is the interpretation of the Federal Act that opens the door to the application of the state law and leads to the striking down of the contracts made by the Secretary. Nor would the suggestion that state law prevented the water districts and agencies of the State from entering into the contracts change this conclusion. We need not determine whether a State could in that manner frustrate the consummation of a federal project constructed at its own behest. The fact remains that the state law was, in fact, invoked only by the interpretation the court gave § 8.",the jurisdictional question.
+618,105730,1,5,"At the outset we set aside as not necessary to decision here the question of title to or vested rights in unappropriated water. Cf. Nebraska v. Wyoming, 325 U. S. 589, 611-616 (1945). If the rights held by the United States are insufficient, then it must acquire those necessary to carry on the project, United States v. Gerlach Live Stock Co., supra, at 739, paying just compensation therefor, either through condemnation or, if already taken, through action of the owners in the courts. As we see it, the authority to impose the conditions of the contracts here comes from the power of the Congress to condition the use of federal funds, works, and projects on compliance with reasonable requirements. And, again, if the enforcement of those conditions impairs any compensable property rights, then recourse for just compensation is open in the courts. As we have noted, the Supreme Court of California first concluded that the provisions of § 8 of the 1902 Act as to the application of state law were absolute, and controlled all provisions of the Act and other reclamation statutes having to do with the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder . . . . We believe this erroneous insofar as the substantive provisions of § 5 of the 1902 Act are concerned. As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of federal projects. As the Court said in Nebraska v. Wyoming, supra, at 615: We do not suggest that where Congress has provided a system of regulation for federal projects it must give way before an inconsistent state system. Section 5 is a specific and mandatory prerequisite laid down by the Congress as binding in the operation of reclamation projects, providing that [n]o right to the use of water . . . shall be sold for a tract exceeding one hundred and sixty acres to any one landowner . . . . We read nothing in § 8 that compels the United States to deliver water on conditions imposed by the State. To read § 8 to the contrary would require the Secretary to violate § 5, the provisions of which, as we shall see, have been national policy for over half a century. Without passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended § 8 to override the repeatedly reaffirmed national policy of § 5. From the beginning of the federal reclamation program in 1902, the policy as declared by the Congress has been one requiring that the benefits therefrom be made available to the largest number of people, consistent, of course, with the public good. This policy has been accomplished by limiting the quantity of land in a single ownership to which project water might be supplied. It has been applied to public land opened up for entry under the reclamation law as well as privately owned lands, which might receive project water. See Taylor, The Excess Land Law: Execution of a Public Policy, 64 Yale L. J. 477. Significantly, where a particular project has been exempted because of its peculiar circumstances, the Congress has always made such exemption by express enactment. See Act of September 3, 1954, 68 Stat. 1190, exempting the Santa Maria Project from the applicability of excess land laws. [8] With respect to the Central Valley Project the Congress has again and again reaffirmed the specific requirements of § 5 and the action taken by the Secretary thereunder. As late as 1944 on consideration of the Omnibus Rivers and Harbors Bill the Senate refused, after vigorous debate, to concur in a conference report that would have exempted this project from the excess land requirements of § 5. 90 Cong Rec. 9493-9499. At the next Session of the Congress the disputed exemption was deleted from the bill and it was promptly passed. Likewise, the Secretary reported to the Congress from time to time the execution of contracts, similar to those involved here, wherein the excess land limitations and other requirements of law are fully incorporated in the Central Valley contract form. His annual report for 1950 and 1951 related the execution of the Madera, Ivanhoe, and Santa Barbara contracts involved here. In the latter report he mentions individual contracts with water users under the excess land laws, advising that these laws were given active attention. Five recordable contracts providing for delivery of Central Valley Project water to 3,570 acres of excess land are the first to be executed on the project. During this period the Congress reauthorized the project, additional units were added, see Act of October 14, 1949, 63 Stat. 852; H. R. Doc. No. 416, 84th Cong., 2d Sess., pp. 620-622; Act of September 26, 1950, 64 Stat. 1036, and the Act of August 12, 1955, 69 Stat. 719; H. R. Doc. No. 416, pp. 937-940, and large appropriations of funds thereto were granted annually. In light of these congressional actions, it cannot be said that Congress intended that § 8 would, under the application of state law, make inapplicable the excess lands provisions of § 5 of the Reclamation Act of 1902 to the Central Valley Project. That possibility is foreclosed by subsequent and continuing action by the Congress ever since the inception of the project. Such a record constitutes ratification of administrative construction, and confirmation and approval of the contracts. Fleming v. Mohawk Co., 331 U. S. 111, 119 (1947); Brooks v. Dewar, 313 U. S. 354, 361 (1941); Swayne & Hoyt, Ltd., v. United States, 300 U. S. 297, 302 (1937).",application of the reclamation laws to the contracts.
+619,105187,1,1,"The language employed by Congress in enacting the heart of § 8 (a) (3) is identical with that of the predecessor section in the Wagner Act, § 8 (3): By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . . 49. Stat. 452. These are the first cases to reach us involving application of this section or its predecessor to the problem of encouragement of union membership by employers. We have on many occasions considered aspects of the application of these sections to actions by employers aimed at discouragement of union membership. [37] The principles invoked in those cases are, of course, equally applicable to both aspects of employer discrimination, but most of the issues of statutory construction raised here have not previously been considered by this Court. In past cases we have been called upon to clarify the terms discrimination and membership in any labor organization. Discrimination is not contested in these cases: involuntary reduction of seniority, refusal to hire for an available job, and disparate wage treatment are clearly discriminatory. But the scope of the phrase membership in any labor organization is in issue here. Subject to limitations, [38] we have held that phrase to include discrimination to discourage participation in union activities as well as to discourage adhesion to union membership. [39] Similar principles govern the interpretation of union membership where encouragement is alleged. The policy of the Act is to insulate employees' jobs from their organizational rights. [40] Thus §§ 8 (a) (3) and 8 (b) (2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to § 8 (a) (3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under such contracts if membership was not available to the employee on the same terms and conditions generally applicable to other members or if membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. [41] Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited permissible employer discrimination. [42] This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about free riders, i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. [43] Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a union is condoned. [44] From the foregoing it is clear that the Eighth Circuit too restrictively interpreted the term membership in Teamsters. Boston was discriminated against by his employer because he was delinquent in a union obligation. Thus he was denied employment to which he was otherwise entitled, for no reason other than his tardy payment of union dues. The union caused this discrimination by applying a rule apparently aimed at encouraging prompt payment of dues. The union's action was not sanctioned by a valid union security contract, and, in any event, the union did not choose to terminate Boston's membership for his delinquency. Thus the union by requesting such discrimination, and the employer by submitting to such an illegal request, deprived Boston of the right guaranteed by the Act to join in or abstain from union activities without thereby affecting his job. A fortiori the Second Circuit correctly concluded in Radio Officers that such encouragement to remain in good standing in a union is proscribed. Thus that union in causing the employer to discriminate against Fowler by denying him employment in order to coerce Fowler into following the union's desired hiring practices deprived Fowler of a protected right.",meaning of membership.
+620,105187,1,2,"The language of § 8 (a) (3) is not ambiguous. The unfair labor practice is for an employer to encourage or discourage membership by means of discrimination. Thus this section does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such; only such discrimination as encourages or discourages membership in a labor organization is proscribed. The relevance of the motivation of the employer in such discrimination has been consistently recognized under both § 8 (a) (3) and its predecessor. In the first case to reach the Court under the National Labor Relations Act, Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, in which we upheld the constitutionality of § 8 (3), we said with respect to limitations placed upon employers' right to discharge by that section that the [employer's] true purpose is the subject of investigation with full opportunity to show the facts. Id., at 46. In another case the same day we found the employer's real motive to be decisive and stated that the act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees. [45] Courts of Appeals have uniformly applied this criteria, [46] and writers in the field of labor law emphasize the importance of the employer's motivation to a finding of violation of this section. [47] Moreover, the National Labor Relations Board in its annual reports regularly reiterates this requirement in its discussion of § 8 (a) (3). For example, a recent report states that upon scrutiny of all the facts in a particular case, the Board must determine whether or not the employer's treatment of the employee was motivated by a desire to encourage or discourage union membership or other activities protected by the statute. [48] That Congress intended the employer's purpose in discriminating to be controlling is clear. The Senate Report on the Wagner Act said: Of course nothing in the bill prevents an employer from discharging a man for incompetence; from advancing him for special aptitude; or from demoting him for failure to perform. [49] Senator Wagner spoke of § 8 (3) as reaching those very cases where the employer is strong enough to impress his will without the aid of the law. [50] With this consistent interpretation of that section before it, Congress, as noted above, chose to retain the identical language in its 1947 amendments. No suggestion is found in either the reports or hearings on those amendments that the section had been too narrowly construed, and the House Conference Report states that § 8 (a) (3) prohibits an employer from discriminating against an employee by reason of his membership or nonmembership in a labor organization, except to the extent that he obligates himself to do so under the terms of a permitted union shop or maintenance of membership contract. [51] B.—PROOF OF MOTIVE. But it is also clear that specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of § 8 (a) (3). This fact was recognized in the House Report on the Wagner Act when it was stated that under § 8 (3) agreements more favorable to the majority than to the minority are impossible . . . . [52] Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement. [53] This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common-law rule that a man is held to intend the foreseeable consequences of his conduct. Cramer v. United States, 325 U. S. 1, 31; Nash v. United States, 229 U. S. 373, 376; United States v. Patten, 226 U. S. 525, 539; Agnew v. United States, 165 U. S. 36, 50. Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement. Concluding that encouragement or discouragement will result, it is presumed that he intended such consequence. In such circumstances intent to encourage is sufficiently established. Our decision in Republic Aviation Corp. v. Labor Board, 324 U. S. 793, relied upon by the Board to support its contention that employers' motives are irrelevant under § 8 (a) (3), applied this principle. That decision dealt primarily with the right of the Board to infer discouragement from facts proven for purposes of proof of violation of § 8 (3). In holding that discharges and suspensions of employees under company no solicitation rules for soliciting union membership, in the circumstances disclosed, violated § 8 (3), we noted that such employer action was not motivated by opposition to the particular union or, we deduce, to unionism and that there was no union bias or discrimination by the company in enforcing the rule. But we affirmed the Board's holding that the rules involved were invalid when applied to union solicitation since they interfered with the employees' right to organize. Since the rules were no defense and the employers intended to discriminate solely on the ground of such protected union activity, it did not matter that they did not intend to discourage membership since such was a foreseeable result. In Gaynor, the Second Circuit also properly applied this principle. The court there held that disparate wage treatment of employees based solely on union membership status is inherently conducive to increased union membership. In holding that a natural consequence of discrimination, based solely on union membership or lack thereof, is discouragement or encouragement of membership in such union, the court merely recognized a fact of common experience—that the desire of employees to unionize is directly proportional to the advantages thought to be obtained from such action. No more striking example of discrimination so foreseeably causing employee response as to obviate the need for any other proof of intent is apparent than the payment of different wages to union employees doing a job than to nonunion employees doing the same job. As noted above, the House Report on § 8 (3) of the Wagner Act emphasized that such disparate treatment was impossible under the Act. In Gaynor it was conceded that the sole criterion for extra payments was union membership, and the vacation payments were admittedly gratuitous. The wage differential payments, on the other hand, were based upon the 1947 supplementary agreement which the company below contended was negotiated solely in behalf of union members. However, the court below held that the union was exclusive bargaining agent for both union and nonunion employees. The company has not challenged this holding, asserting only that, even though the union represented all employees, the company's only liability to the nonunion employees can be for breach of contract. The union's representative status obviously does not effect the legality of the gratuitous payment. According to the reasoning of the Second Circuit, however, disparate payments based on contract are illegal only when the union, as bargaining agent for both union and nonunion employees, betrays its trust and obtains special benefits for the union members. That court considered such action unfair because such employees are not in a position to protect their own interests. Thus, it reasoned, if a union bargains only for its own members, it is legal for such union to cause an employer to give, and for such employer to give, special benefits to the members of the union for if nonmembers are aggrieved they are free to bargain for similar benefits for themselves. We express no opinion as to the legality of disparate payments where the union is not exclusive bargaining agent, since that case is not before us. We do hold that in the circumstances of this case, the union being exclusive bargaining agent for both member and nonmember employees, the employer could not, without violating § 8 (a) (3), discriminate in wages solely on the basis of such membership even though it had executed a contract with the union prescribing such action. Statements throughout the legislative history of the National Labor Relations Act emphasize that exclusive bargaining agents are powerless to make agreements more favorable to the majority than to the minority. [54] Such discriminatory contracts are illegal and provide no defense to an action under § 8 (a) (3). See Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Wallace Corp. v. Labor Board, 323 U. S. 248; J. I. Case Co. v. Labor Board, 321 U. S. 332; Order of Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342. Cf. Ford Motor Co. v. Huffman, 345 U. S. 330.",a.necessity for proving employer's motive.
+621,105187,1,3,"Petitioners in Gaynor and Radio Officers contend that the Board's orders in these cases should not have been enforced by the Second Circuit because the records do not include independent proof that encouragement of Union membership actually occurred. The Eighth Circuit subscribed to this view that such independent proof is required in Teamsters when it denied enforcement of the Board's order in that proceeding on the ground that it was not supported by substantial evidence of encouragement. The Board argues that actual encouragement need not be proved but that a tendency to encourage is sufficient, and such tendency is sufficiently established if its existence may reasonably be inferred from the character of the discrimination. We considered this problem in the Republic Aviation case. To the contention that there must be evidence before the Board to show that the rules and orders of the employers interfered with and discouraged union organization in the circumstances and situation of each company, we replied that the statutory plan for an adversary proceeding does not go beyond the necessity for the production of evidential facts, however, and compel evidence as to the results which may flow from such facts. . . . An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration. . . . 324 U. S., at 798, 800. See also Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105; Labor Board v. Link-Belt Co., 311 U. S. 584. In these cases we but restated a rule familiar to the law and followed by all fact-finding tribunals—that it is permissible to draw on experience in factual inquiries. It is argued, however, that these cases ceased to be good law under the Taft-Hartley amendments. The House Report on their version of § 10 of the amendments, in discussing shocking injustices resulting from limited court review of Board rulings, stated that requiring the Board to rest its rulings upon facts, not interferences [ sic ], conjectures, background, imponderables, and presumed expertness will correct abuses under the act. [55] We do not read that statement nor statements in the House Conference Report, upon which petitioners rely to support their contention, to hold that the Board may not draw reasonable inferences from proven facts. The House Conference Report stated that, under the Wagner Act standard of review, courts had abdicated to the Board and in many instances deference on the part of the courts to specialized knowledge that is supposed to inhere in administrative agencies has led the courts to acquiesce in decisions of the Board, even when the findings concerned mixed issues of law and of fact [citing cases], or when they rested only on inferences that were not, in turn, supported by facts in the record [citing the Republic Aviation case]. [56] The report concluded that the amendment to § 10 (e), requiring Board findings to be supported by substantial evidence on the record considered as a whole, will be adequate to preclude such decisions as those in inter alia the Nevada Copper Corp. and Republic Aviation cases. In Universal Camera Corp. v. Labor Board, 340 U. S. 474, we carefully considered this legislative history and interpreted it to express dissatisfaction with too restricted application of the substantial evidence test of the Wagner Act. We noted, however, that sufficiency of evidence to support findings of fact was not involved in the Republic Aviation case, and stated that the amendment was not intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. There is nothing in the language of the amendment itself that suggests denial to the Board of power to draw reasonable inferences. It is inconceivable that the authors of the reports intended such a result, for a fact-finding body must have some power to decide which inferences to draw and which to reject. We therefore conclude that insofar as the power to draw reasonable inferences is concerned, Taft-Hartley did not alter prior law. The Board relies heavily upon the House Report on § 8 (3), which stated that the section outlawed discrimination which tends to `encourage or discourage membership in any labor organization,'  [57] for its conclusion that only a tendency to encourage or discourage membership is required by § 8 (a) (3). We read this language to mean that subjective evidence of employee response was not contemplated by the drafters, and to accord with our holding that such proof is not required where encouragement or discouragement can be reasonably inferred from the nature of the discrimination. Encouragement and discouragement are subtle things requiring a high degree of introspective perception. Cf. Labor Board v. Donnelly Garment Co., 330 U. S. 219, 231. But, as noted above, it is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action. Moreover, the Act does not require that the employees discriminated against be the ones encouraged for purposes of violations of § 8 (a) (3). Nor does the Act require that this change in employees' quantum of desire to join a union have immediate manifestations. Obviously, it would be gross inconsistency to hold that an inherent effect of certain discrimination is encouragement of union membership, but that the Board may not reasonably infer such encouragement. We have held that a natural result of the disparate wage treatment in Gaynor was encouragement of union membership; thus it would be unreasonable to draw any inference other than that encouragement would result from such action. The company complains that it could have disproved this natural result if allowed to prove that Loner, the employee who filed the charges against it, had previously applied for and been denied membership in the union. But it is clear that such evidence would not have rebutted the inference: not only would it have failed to disprove an increase in desire on the part of other employees, union members or nonmembers, to join or retain good standing in the union, but it would not have shown lack of encouragement of Loner. In rejecting this argument the Second Circuit noted that union admission policies are not necessarily static and that employees may be encouraged to join when conditions change. This proved to be an accurate prophecy regarding the Newspaper and Mail Deliverers' Union, involved in this case, for in 1952 it altered its admission policy to allow membership of all steady situation holders, thus admitting many employees not previously eligible. The circumstances in Radio Officers and Teamsters are nearly identical. In each case the employer discriminated upon the instigation of the union. The purposes of the unions in causing such discrimination clearly were to encourage members to perform obligations or supposed obligations of membership. Obviously, the unions would not have invoked such a sanction had they not considered it an effective method of coercing compliance with union obligations or practices. Both Boston and Fowler were denied jobs by employers solely because of the unions' actions. Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the request of a union, those employers must be presumed to have intended such encouragement. It follows that it was eminently reasonable for the Board to infer encouragement of union membership, and the Eighth Circuit erred in holding encouragement not proved.",power of board to draw inferences.
+622,105239,1,1,"22 A. Authorized Diversions. The State of New Jersey may divert outside the Delaware River watershed, from the Delaware River or its tributaries in New Jersey, without compensating releases, the equivalent of 100 m.g.d., if the State shall not, prior to July 1, 1955, repeal Chapter 443 of the New Jersey Laws of 1953, and if, when the Commonwealth of Pennsylvania accepts the conditions as specified in Section 19 of that Chapter, the State of New Jersey shall join with the Commonwealth of Pennsylvania in requesting the consent of Congress to the agreement embodied in Chapter 443 of the New Jersey Laws of 1953 and an Act of the Commonwealth of Pennsylvania accepting the conditions of such New Jersey Act. 23 B. Conditions and Obligations Imposed in Connection with Diversions by New Jersey. The diversions by New Jersey from the Delaware River shall be made under the supervision of the River Master and shall be subject to the following conditions and obligations: 24 1. Until the State of New Jersey builds and utilizes one or more reservoirs to store waters of the Delaware River or its tributaries for the purpose of diverting the same to another watershed, the State may divert not to exceed 100 m.g.d. as a monthly average, with the diversion on any day not to exceed 120 million gallons. 25 2. If and when the State of New Jersey has built and is utilizing one or more reservoirs to store waters of the Delaware River or its tributaries for the purpose of diversion to another watershed, it may withdraw water from the Delaware River or its tributaries into Such impounding reservoirs without limitation except during the months of July, August, September and October of any year, when not more than 100 m.g.d. as a monthly average and not more than 120 million gallons in any day shall be withdrawn. 26 3. Regardless of whether the State of New Jersey builds and utilizes storage reservoirs for diversion, its total diversion for use outside of the Delaware River watershed without compensating releases shall not exceed an average of 100 m.g.d. during any calendar year. 27 VI. Existing Uses not Affected by Amended Decree. The parties to this proceeding shall have the right to continue all existing uses of the waters of the Delaware River and its tributaries, not involving a diversion outside the Delaware River watershed, in the manner and at the locations presently exercised by municipalities or other governmental agencies, industries or persons in the Delaware River watershed in the States of New York, New Jersey and Delaware and the Commonwealth of Pennsylvania. 28",Diversions by New Jersey Authorized Under Specified Conditions.
+623,105239,2,1,"32 (a) Administer the provisions of this decree relating to yields, diversions and releases so as to have the provisions of this decree carried out with the greatest possible accuracy; (b) Conserve the waters in the river, its tributaries and in any reservoirs maintained in the Delaware River watershed by the City of New York or any which may hereafter be developed by any of the other parties hereto; 33 (c) Compile and correlate all available data on the water needs of the parties hereto; 34 (d) Check and correlate the pertinent stream flow gagings on the Delaware River and its tributaries; 35 (e) Observe, record and study the effect of developments on the Delaware River and its tributaries upon water supply and other necessary, proper and desirable uses; and 36 (f) Make periodic reports to this Court, not less frequently than annually, and send copies thereof to the Governors of Delaware, New Jersey, New York and Pennsylvania, and to the Mayor of the City of New York. 37 2. Specific Duties with Respect to the Montague Release Formula. In connection with the releases of water which the City of New York is required to make under Par. III—B—1(b) of this decree, the River Master, in co-operation with the City of New York, shall, by appropriate observation and estimates, perform the following duties: 38 (a) Determine the average times of transit of the flow between the release works of the several reservoirs of the City and Montague and between the release works of other storage reservoirs in the watershed and Montague; 39 (b) Make a daily computation of what the average flow observed on the previous day at Montague would have been, except for that portion previously contributed by releases of the City or as affected by the contributing or withholding of water at other storage reservoirs, for the purpose of computing the volume of water that would have had to be released in order to have maintained precisely the basic rate on that day; (c) Take account of all changes that can be anticipated in the flow from that portion of the watershed above Montague not under the City's control and allow for the same by making an appropriate adjustment in the computed volume of the daily release; and 40 (d) After taking into consideration (a), (b) and (c), direct the making of adjusted daily releases designed to maintain the flow at Montague at the applicable minimum basic rate. 41 C. Distribution of Costs. The compensation of, and the costs and expenses incurred by, the River Master shall be borne equally by the State of Delaware, State of New Jersey, Commonwealth of Pennsylvania, and the City of New York. 42 D. Replacement. In the event that for any reason the Chief Hydraulic Engineer of the U.S.G.S. or his designee cannot act as River Master, this Court will, on motion of any party, appoint a River Master and fix his compensation. 43 VIII. No Prior Appropriation nor Apportionment. No diversion herein allowed shall constitute a prior appropriation of the waters of the Delaware River or confer any superiority of right upon any party hereto in respect of the use of those waters. Nothing contained in this decree shall be deemed to constitute an apportionment of the waters of the Delaware River among the parties hereto. 44 IX. Decree Without Prejudice to the United States. This decree is without prejudice to the United States. It is subject to the paramount authority of Congress in respect to commerce on navigable waters of the United States; and it is subject to the powers of the Secretary of the Army and Chief of Engineers of the United States Army in respect to commerce on navigable waters of the United States. 45 X. Retention of Jurisdiction; No Estoppel. Any of the parties hereto, complainant, defendants or intervenors, may apply at the foot of this decree for other or further action or relief, and this Court retains jurisdiction of the suit for the purpose of any order or direction or modification of this decree, or any supplemental decree that it may deem at any time to be proper in relation to the subject matter in controversy. The fact that a party to this cause has not filed exceptions to the report of the Special Master or to the provisions of this decree shall not estop such party at any time in the future from applying for a modification of the provisions of this decree, notwithstanding any action taken by any party under the terms of this decree. 46 XI. Costs of this Proceeding. The costs of this proceeding shall be paid by the parties in the following proportions: State of New Jersey, 26 2/3 per cent, City of New York, 26 2/3 per cent, State of New York, 10 per cent, Commonwealth of Pennsylvania, 26 2/3 per cent, and State of Delaware, 10 per cent.",General Duties.
+624,87517,1,1,"It is not denied that at the time Lee conveyed to Noonan, his chain of title was perfect, unless it was broken by one or more of the facts claimed by Noonan to have produced that effect. In this connection the tax deeds found in the record are relied upon. They consist of Exhibits C, D, E, F, G, H, I, J, and the deed to Orton of the 25th of April, 1852. (1). The deed last named does not appear to have been recorded. Possession under it can therefore have no effect upon the rights of Lee. The description in the deed does not cover the premises in controversy. That part of the description relied upon is in these words: Part of the S.E. quarter section fourth, T. 7, R. 22, bounded north by Demster, east by Jones and Bare, west by river, and south by Allerding, (nineten acres). The land in controversy is not in the southeast quarter of the section, and there is nothing in the case which shows what river is referred to, or where the lands of Demster and the other parties named are situated. (2). Exhibit F, I, and J, are duplicates respectively of Exhibits H, C, and E, and may be laid out of view. (3). Exhibits C, D, and G, embrace none of the land in controversy. This leaves only Exhibits E and H to be examined. (4). Exhibit E. This is a deed to James H. Rogers. It bears date on the 17th of February, 1846. It recites a sale to Rogers on the 14th day of December, 1840, for the taxes of that year. The description embraces lots one and six in block five of the plat. This block is within the limits of the mortgaged premises. At the time of the sale, and for several years previous, Rogers had been in possession of the mortgaged premises under the deed of the 27th of July, 1837, from Prentiss, to whom he had given back a mortgage of the same date to secure the purchase-money. Prentiss had proceeded to foreclose the mortgage, and the premises were sold under a decree rendered on the 26th of June, 1840. Prentiss became the purchaser, and on the 5th of October, 1840, received the master's deed for the premises. Rogers being in possession, the Statutes of Wisconsin required him to pay the taxes, and gave him an action to recover the money back, if he were entitled to it, from the party to whose benefit the payment enured. (Revised Statutes of 1839, sec. 14, p. 47.) His relation to the property, and to his vendor and mortgagee also, rendered it his duty to make such payment. Neither he nor any one claiming under him can avail himself of a title thus acquired, as against Prentiss and those claiming under him. Douglass vs. Dangerfield, (10 O. Rep., 152); Creps vs. Baird, (3 O.S.R., 377). (5). Exhibit H. This deed was also to James H. Rogers, and bears date on the 23d of December, 1845. It recites that the sale was made to Rogers on the 9th of December, 1839, for the taxes of that year. It embraces lots 1, 2, 3, 4, 5, and 6, in block 5, as delineated on the plat. During all of the year 1839, Rogers was in possession as the vendee of Prentiss, and the same remarks apply as to Exhibit E. Underlying these deeds is another objection. We have already referred to the non-conformity of the town plat to the requirements of the statute, and the fact that it was penal to sell or lease any lot, as such, which it represented All the witnesses, including Orton, who claimed to be in possession of the whole of fractional lot 2, speak of it as a pretended plat. Orton says: I do not know of such a village as Mechanicsville in fact, though I have heard of it. I do not know where the plat of Mechanicsville is located, though I know where they claim it is located. I know the land described in the mortgage in the bill of complaint from its boundaries. It does not appear in the case that any street was ever improved, that any lot was ever enclosed, or that any house was ever built with reference to the boundaries of any street or lot. It comes out incidentally in the evidence touching possession, that there is but one house on the plat, and that it is in a ruinous condition and unoccupied. Nothing is proved in pais, recognizing the existence of the plat. Under these circumstances it may well be doubted whether the sales of lots for taxes were not illegal and void. Wheeler vs. Russell, (17 Mass., 258); Strong vs. Darling et al., (9 O. Rep. 201). We have not found it necessary to decide that question, and we express no opinion upon the subject. As the facts are disclosed in the record, we find no defect in the title of Lee. We find that Noonan's title has not failed, and no encumbrance upon the property is shown. There has been, therefore, no breach of the agreement endorsed upon the bond; nor has there been any breach of the covenant of general warranty in Lee's deed to Noonan. The deed contains no other covenant. The Statute of Wisconsin of 1849 permits a grantor out of possession to make a valid conveyance of lands adversely held by another. In all cases where there is adverse possession, by virtue of a paramount title, of lands thus conveyed, such possession is regarded as eviction, and involves a breach of the covenant of warranty. Where, as in this case, the paramount title is in the warrantor and the adverse possession tortious, it is no eviction either actual or constructive, and no action will lie upon the covenant. Randolph vs. Meek, (1 Martin & Yerger, 58); Moore vs. Vail, (17 Ill., 185); Rawle on Covenants of Title, 224) There is another view of this case which must not be passed over in silence. It is not claimed by Noonan in his answer that there was any fraud or misrepresentation on the part of Lee, or that any fact exists in regard to the title which was unknown to him when he bought the property. It appears by the testimony of Orton, that there was a controversy between him and Noonan about water power, and that it has been adjusted. Orton says: He (Noonan) has no interest with me in this land of record. I don't know that he has any. I don't know that I have any interest in the result of this suit. I dont know that I will be benefitted in any way by Noonan's success in this suit. This is guarded and peculiar language. It is impossible to read the testimony of Orton and resist the conclusion that Noonan bought the property for a purpose, and that having held the title for several years without paying anything, and accomplished that purpose, he is now seeking, upon the pretence of defects of title, finally to avoid the payment of the purchase money, and throw back the property upon the hands of his vendor. This ungracious work a Court of Equity will not permit him to do. If Noonan had gone into possession, and continued in possession under his deed from Lee, this elaborate examination of the state of the title would not have been necessary. With reference to that class of cases, this Court, in Patton vs. Taylor, (7 How., 159), after referring to numerous authorities, thus laid down the law: These cases will show that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money, on the mere ground of defect of title there being no fraud or misrepresentation, and that in such a case he must seek his remedy at law on the covenants in his deed. That if there is no fraud and no covenants to secure the title, he is without remedy, as the vendor selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants in the deed. And that further relief will not be afforded upon the ground of fraud, unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings. This doctrine is fully sustained by the best considered authorities. Corning vs. Smith, (2 Seld., 84); Plat vs. Gilchrist, (3 Sandf. S.C. Rep., 118); Butler vs. Hill, (6 Ohio S.R., 217); Beebe vs Swartout, (3 Gilman, 162). The proofs in this case show, that before filing his bill, Lee notified Noonan, that he elected to consider the entire amount of the mortgage debt as due. This entitled him to a decree for the full amount, although according to the terms of the bond, one of the instalments was not due when the bill was filed. Noyes vs. Clark, (7 Paige, 180). It remains to consider that part of the decree which directs Noonan to pay the balance which may remain unsatisfied after exhausting the proceeds of the mortgaged premises. The equity jurisdiction of the Courts of the United States is derived from the Constitution and Laws of the United States. Their powers and rules of decision are the same in all the States. Their practice is regulated by themselves, and by rules established by the Supreme Court. This Court is invested by law with authority to make such rules. In all these respects they are unaffected by State legislation. Neves vs. Scott, (13 How., 270); Boyle vs. Zachary Turner, (6 Pet., 658); Robinson vs. Campbell, (3 Wheat., 323). A majority of my brethren are of the opinion, and I am directed by them so to announce, that in the absence of a rule of this Court authorizing it to be done, it was not competent for the Court below to make such an order. That part of the decree is reversed. The residue is affirmed. The cause will be remanded to the Court below with instructions to proceed accordingly.",The tax deeds.
+625,107057,1,1,"This is a suit begun in 1945, brought by the United States against California to determine dominion over the submerged lands and mineral rights under the three-mile belt of sea off the coast of California. In 1947 the Court decreed: The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles . . . . The State of California has no title thereto or property interest therein. United States v. California, 332 U. S. 804, 805, Order and Decree. After the entry of this decree, the United States asked that the lands awarded to it be defined in greater detail in certain areas where there was substantial oil well activity, and which California asserted lay within inland waters. The Court appointed a Special Master, [2] and directed him to consider seven specified segments of the California coast [3] to determine the line of ordinary low water and the outer limit of inland waters. These segments included various bays, and, as the problem evolved, the so-called overall unit area consisting of the waters inside a line encompassing the islands off the shore of southern California, some as far as 50 miles out. [4] The Special Master's Report, generally favoring the position of the United States, was filed with this Court in November 1952, 344 U. S. 872. He adopted as his criteria for defining inland waters those applied by the United States in the conduct of its foreign affairs as of the date of the California decree, October 27, 1947—in particular, a rule that only a bay having a closing line across its mouth no more than 10 miles in length and enclosing a sufficient water area to satisfy the so-called Boggs formula [5] would be inland water, with the qualification that a bay which had been historically considered inland water would so continue. [6] Both parties noted their exceptions to the Report, but before any further action was taken, Congress enacted the Submerged Lands Act. The Submerged Lands Act [7] grants to the States title to and ownership of the lands beneath navigable waters within the boundaries of the respective States. § 3 (a). Boundaries includes the seaward boundaries of a State as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, but subject to the limitation that in no event shall the term `boundaries' . . . be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico. § 2 (b). Coast line is then defined as the composite line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. § 2 (c). For States having no previously approved seaward boundaries the Act provides that [a]ny State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line . . . . § 4. Thus the Act effectively grants each State on the Pacific coast all submerged lands shoreward of a line three geographical miles [8] from its coast line, derivatively defined in terms of the seaward limit of inland waters. Inland waters is not defined by the Act. In a later measure related to the Submerged Lands Act, Congress declared that the United States owned all submerged land in the continental shelf seaward of the lands granted to the States. Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq. The passage of the Submerged Lands Act marked the beginning of a long halt in the proceedings in this case. Depth of California's coastal waters increases very rapidly, and as of May 22, 1953, the date of enactment, it was impractical to drill for oil except close to the shore. By granting to California the mineral rights in the three-mile belt, the Act vested in California all the interests that were then thought to be important, and no further action was taken on the Special Master's Report. That Report was neither adopted, modified, nor rejected by this Court, but was simply allowed to lie dormant. By 1963, however, drilling techniques had improved sufficiently to revitalize the importance of the demarcation line between state and federal submerged lands. The United States filed an amended complaint reviving the Special Master's Report and redescribing the issues as modified by the Submerged Lands Act; both the United States and California filed new exceptions to the Report, and the case is now ready for decision. The basic contention of the United States is that the Act simply moved the line of demarcation out three miles from the line established by the California decree. Therefore, contends the United States, the Special Master's Report on the line of ordinary low water and the outer limit of inland waters as used in the California decree is just as relevant now as it was before Congress acted, and, with slight modifications, the line drawn by the Special Master should be taken as the coast line for purposes of the Submerged Lands Act. California asserts that whereas the Special Master determined inland waters to be those which the United States would have claimed as such for purposes of international relations, the Submerged Lands Act used the term in an entirely different sense to mean those waters which the States historically considered to be inland—in California's case, those waters which the State considered to be inland at the time it entered the Union. Therefore, according to California, the line drawn in the Special Master's Report was determined under standards wholly foreign to the Submerged Lands Act. The focal point of this case is the interpretation to be placed on inland waters as used in the Act. Since the Act does not define the term, we look to the legislative history.",the setting of the case.
+626,107057,1,4,"Once it is decided that the definitions of the Convention on the Territorial Sea and the Contiguous Zone apply, many of the subsidiary issues before us fall into place. 1. Straight Base Lines. —California argues that because the Convention permits a nation to use the straight-base-line method for determining its seaward boundaries if its coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity. California is therefore free to use such boundary lines across the openings of its bays and around its islands. [34] We agree with the United States that the Convention recognizes the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our international boundaries beyond their traditional international limits against the expressed opposition of the United States. The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government's responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States. California relies upon Manchester v. Massachusetts, 139 U. S. 240, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the case may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our traditional international boundary nor opposition by the United States to the position taken by the State. 2. Twenty-four-mile Closing Rule. —The Convention recognizes, and it is the present United States position, [35] that a 24-mile closing rule together with the semicircle test should be used for classifying bays in the United States. [36] Applying these tests to the segments of California's coast here in dispute, it appears that Monterey Bay is inland water and that none of the other coastal segments in dispute [37] fulfill these aspects of the Convention test. We so hold. California asserts that the Santa Barbara Channel may be considered a fictitious bay because the openings at both ends of the channel and between the islands are each less than 24 miles. [38] The United States argues that the channel is no bay at all; that it is a strait which serves as a useful route of communication between two areas of open sea and as such may not be classified as inland waters. [39] By way of analogy California directs our attention to the Breton and Chandeleur Sounds off Louisiana which the United States claims as inland waters, United States v. Louisiana, 363 U. S. 1, 66-67, n. 108. Each of these analogies only serves to point up the validity of the United States' argument that the Santa Barbara Channel should not be treated as a bay. The Breton Sound is a cul de sac. The Chandeleur Sound, if considered separately from the Breton Sound which it joins, leads only to the Breton Sound. Neither is used as a route of passage between two areas of open sea. In fact both are so shallow as to not be readily navigable. [40] California also points to the Strait of Juan de Fuca. That strait is not claimed by the United States as a fictitious bay and it does not connect two areas of open sea. Evidence submitted to the Special Master on the extent of international use made of the Santa Barbara Channel was sparse. What evidence there was indicated the usefulness of the route, but did not specify whether the ships so using it were domestic or international. [41] California now regards the point as important, for under international law as expressed in the Corfu Channel Case, [1949] I. C. J. Rep. 4, the International Court of Justice held that a country could not claim a strait as inland water if, in its natural state, it served as a useful route for international passage. We do not consider the point of controlling importance. The United States has not in the past claimed the Santa Barbara Channel as inland water and opposes any such claim now. The channel has not been regarded as a bay either historically or geographically. In these circumstances, as with the drawing of straight base lines, we hold that if the United States does not choose to employ the concept of a fictitious bay in order to extend our international boundaries around the islands framing Santa Barbara Channel, it cannot be forced to do so by California. It is, therefore, unnecessary to reinstitute proceedings before a master to determine the factual question of whether the passageway is internationally useful. 3. Historic Inland Waters. —By the terms of the Convention the 24-mile closing rule does not apply to so-called historic bays. [42] Essentially these are bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations. [43] California claims that virtually all the waters here in dispute are historic inland waters as the term is internationally understood. It relies primarily on an interpretation of its State Constitution to the effect that the state boundaries run three miles outside the islands and bays, [44] plus several court decisions which so interpret it as applied to Monterey, Santa Monica, and San Pedro Bays. [45] The United States counters that, as with straight base lines, California can maintain no claim to historic inland waters unless the claim is endorsed by the United States. The Special Master found it unnecessary to decide that question because, on the evidence before him, he concluded that California had not traditionally exercised dominion over any of the claimed waters. Since the 24-mile rule includes Monterey Bay, we do not consider it here. As to Santa Monica Bay, San Pedro Bay, and the other water areas in dispute, we agree with the Special Master that they are not historic inland waters of the United States. California contends that two studies of the criteria for determining historic waters have been made since the Special Master filed his report [46] which show that he applied the wrong standards, thus vitiating his conclusions. In particular it is said that the Special Master erroneously thought the concept of historic waters to be an exception to the general rule of inland waters requiring a rigorous standard of proof. We find no substantial indication of this in his report. On the evidence, California's claim that its constitution set a boundary beyond the bays and islands is arguable, but many of the state statutes drawing county boundaries which supposedly run to the limit of the state boundaries cut the other way by indicating a line only three miles from shore. [47] Furthermore, a legislative declaration of jurisdiction without evidence of further active and continuous assertion of dominion over the waters is not sufficient to establish the claim. [48] There is a federal district court opinion. United States v. Carrillo, 13 F. Supp. 121 (1935), which dismissed federal criminal charges for an offense which took place more than three miles from the shore of San Pedro Bay on the ground that the bay was within California, not federal, jurisdiction; but it is difficult to see this dismissal as an assertion of dominion. In Santa Monica Bay, California did successfully prosecute a criminal offense which took place more than three miles from the shore, People v. Stralla, 14 Cal. 2d 617, 96 P. 2d 941 (1939). However, the decision stands as the only assertion of criminal jurisdiction of which we have been made aware. [49] The United States disclaims that any of the disputed areas are historic inland waters. We are reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt. But in the case before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed waters, we think the disclaimer decisive. 4. Harbors and Roadsteads. —The parties disagree as to whether inland waters should encompass anchorages beyond the outer harborworks of harbors. The Convention on the Territorial Sea and the Contiguous Zone (Art. 8) states without qualification that the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast. We take that to be the line incorporated in the Submerged Lands Act. As to open roadsteads used for loading, unloading and anchoring ships, the Convention (Art. 9) provides that such areas should be included in the territorial sea, and, by implication, that they are not to be considered inland waters. We adopt that interpretation. 5. The Line of Ordinary Low Water. —Along the California coast there are two low tides each day, one of which is generally lower than the other. The assertion of the United States, with which the Special Master agreed, is that the line of ordinary low water is obtained by taking the average of all the low tides. California would average only the lower low tides. We hold that California's position represents the better view of the matter. The Submerged Lands Act defines coastline in terms of the line of ordinary low water. The Convention (Art. 3) uses the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State ( i. e., the United States). We interpret the two lines thus indicated to conform, and on the official United States coastal charts of the Pacific Coast prepared by the United States Coast and Geodetic Survey, it is the lower low water line which is marked. 6. Artificial Accretions. —When this case was before the Special Master, the United States contended that it owned all mineral rights to lands outside inland waters which were submerged at the date California entered the Union, even though since enclosed or reclaimed by means of artificial structures. The Special Master ruled that lands so enclosed or filled belonged to California because such artificial changes were clearly recognized by international law to change the coastline. Furthermore, the Special Master recognized that the United States, through its control over navigable waters, had power to protect its interests from encroachment by unwarranted artificial structures, and that the effect of any future changes could thus be the subject of agreement between the parties. The United States now contends that whereas the Submerged Lands Act recognized and confirmed state title within all artificial as well as natural modifications to the shoreline prior to the passage of the Act, Congress meant to recognize only natural modifications after the date of the Act. The Act, however, makes no specific reference to artificial accretions, and nowhere in the legislative history did anyone focus on the question. [50] The United States points by analogy to the rule of property law that artificial fill belongs to the owner of the submerged land onto which it is deposited. Marine R. & Coal Co. v. United States, 257 U. S. 47, 65. We think the situation different when a State extends its land domain by pushing back the sea; in that case its sovereignty should extend to the new land, as was generally thought to be the case prior to the 1947 California opinion. [51] The considerations which led us to reject the possibility of wholesale changes in the location of the line of inland waters caused by future changes in international law, supra, pp. 166-167, do not apply with force to the relatively slight and sporadic changes which can be brought about artificially. Arguments based on the inequity to the United States of allowing California to effect changes in the boundary between federal and state submerged lands by making future artificial changes in the coastline are met, as the Special Master pointed out, by the ability of the United States to protect itself through its power over navigable waters. With the modifications set out in this opinion we approve the recommendations of the Special Master. The parties, or either of them, may, before September 1, 1965, submit a proposed decree to carry this opinion into effect, failing which the Court will prepare and enter an appropriate decree at the next Term of Court. It is so ordered. THE CHIEF JUSTICE and MR. JUSTICE CLARK took no part in the consideration or decision of this case.",subsidiary issues.
+627,107057,2,1,"As originally drafted, § 2 of the Holland bill defined inland waters, which extended to the coast line, as including all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea. [25] This definition would of course unquestionably give California title to submerged lands lying under all its historically recognized bays and straits as part of California's inland waters, quite apart from the fact that they might also lie within California's historic boundary of inland waters plus marginal sea. The Deputy Legal Adviser of the State Department testified that such a legislative definition of inland waters, even though limited to the purpose of the bill of affecting property rights between the United States and the States, a purely domestic matter, [26] might possibly embarrass the State Department in its foreign relations if the Department asserted a different definition of the words inland waters in its relations with foreign nations. [27] The Attorney General warned that to attempt to define the coastline in a few words might increase rather than diminish litigation. [28] As a result, Senator Cordon, the Acting Chairman of the Committee, at the conclusion of the hearings quoted the language defining inland waters for purposes of the Act and said: That language was objectionable to the State Department and to the Department of Justice. That isn't, in itself, in my opinion, reason to strike it, but I am of the opinion that the objections were sound. The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt that the use of these words were an attempted legislative definition of the term `inland waters,' and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water. [29] At another point he explained that the language was struck simply because It was sought not to get into that field because you were in a field then where, in our attempts to take care of a purely domestic matter, we might be putting the United States on record with a precedent which we intended only to apply domestically but which might be applied internationally. [30] He emphasized that The elimination of the language still follows what the Chair understands to be the philosophy of the bill, that we are putting the States where they thought they were, and not attempting now to create either a situation in law or a basis for a rule of evidence that may or may not have been sound when the States came into the Union. [31] Senator Daniel of Texas, a leading advocate and sponsor of the bill, said: I agree fully with the chairman that the striking of these words was not done in any manner to prejudice the rights of the States . . . . I just want to state that for the record, if this record is ever used in the future. [32] Senator Cordon, who had proposed the change, replied: I appreciate the statement of the Senator, and I concur in it, so far as the action taken here is concerned. [33] And Senator Anderson, another member of the Committee reporting the bill, agreed: I subscribe fully to what the chairman said quite awhile ago in pointing out that this bill does not seek to take away from or add to the position of these States as they came into the Union. [34] When the bill was reported out of committee and presented to the Senate, its supporters made clear that the Committee had made no change in its original objective of restoring to the States everything within their historic boundaries. Senator Holland said it was an obvious fact [35] that the bill was giving to the States that which, without question, was enjoyed by them for 150 or 160 years, namely, the ownership of everything within State boundaries, and reserving to the Federal Government everything beyond that. [36] Senator Cordon expressed his understanding that The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure. I think that answers all and every one of the discussions with reference to boundary lines of the States, including whether they are measured from low water, high water, inland water, or some island. [37] And Senator Holland said: By way of a brief summary, the general purpose of this measure as reported by the Interior and Insular Affairs Committee is to recognize, confirm, establish, and vest in and assign to the respective States the title and ownership of the lands and resources beneath navigable waters within their respective boundaries . . . . [38] And Senator Daniel explained: Until recently the Federal Government never thought it owned these lands, and even until now it has never possessed or used them. The lands are still in the possession of the States . . . . The passage of the pending proposed legislation will simply permit the States to keep what they have always had since the foundation of the Union. [39] If that were not enough to show that the removal of the definition of inland waters from § 2 of the bill as a courtesy to the State and Justice Departments was to have no substantive effect, the Senate Committee said at the beginning of its report on its version of the bill: The committee wishes to emphasize that, as will be seen from comparison with the measure as introduced, the changes are primarily those of form and language, and the committee amendment is consistent throughout with the philosophy and intent of Senate Joint Resolution 13 as introduced. The only change of substance is found in section 9, in which the jurisdiction and control of the Federal Government over the natural resources of the seabed of the Continental Shelf seaward of historic State boundaries is confirmed. [40] Thus the continued intention to confer on the States all submerged lands within their historic boundaries was again reiterated. And in a specific reference to the elimination of the definition of inland waters from § 2, the Committee Report said that the words had been deleted because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it. [41] The Committee had before it the report of the Special Master in this very case [42] and did not adopt his criteria, based on the California decision, for determining inland waters, criteria which included the Boggs formula for determining bays, a formula which many Senators indicated they disapproved and which the Committee Report specifically stated it did not mean to establish as the law. Clearly the position of the Committee was that it really cared only about restoring to the States their claims to submerged lands within their historic boundaries, which of course included all the lands, bays, harbors and channels within those boundaries—their historic coastlines— and three miles or leagues of marginal sea. [43] The Committee saw no reason to attempt to spell out its definition of inland waters, as including all historic bays and channels, when there was no reason to do so and when to do so might possibly have embarrassing repercussions on American foreign relations, where different definitions of inland waters prevailed. Lest anyone misconstrue the change, the Committee said with reference to it: The elimination of the language, in the committee's opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto. [44] The Court reads this change in words as showing a legislative intent to leave the definition of inland waters to the courts without restriction. Ante, p. 154. The Court agrees that before this change was made, the bill gave the States all the submerged lands out to their historic boundaries. The Court admits that the 1947 California decision rejected the States' claims to their historic boundaries and, according to the Court, set up a test of international law and foreign-policy standards for measuring inland waters. But the Court concludes that when the Committee said that it was leaving the States with the rights to inland waters which they had before the California decision, it really meant to establish the international law standard, including the Boggs formula (except insofar as that formula has since been abandoned by treaty) which many Senators had so strenuously opposed and which in their Committee Report they specifically stated they did not mean to adopt. I think that a fair reading of the discussion of this change shows that the Committee members intended that all the States should have their boundaries, including a belt of marginal sea and all the lands and waters from which they had historically measured their claims to the marginal sea, which they thought would have been recognized as such by the courts up to the time of the California decision, and that the test of inland waters and coastlines was therefore an historical one. The Committee regarded the California decision as a complete aberration, and assumed that before it all courts would have judged inland waters by historical tests, as in fact several California and federal decisions show they had. [45] I cannot understand how the Court reasons that when the Committee said that it left the States as it thought they were before the California decision, it really meant to put them in the position the Court says they were in after that case, insofar as inland waters and their coastlines are concerned. I think that the amendment did just what the Committee said it did: it freed Congress from the need of having to determine matters that are highly technical, [46] and left it for the States to prove if they could the facts to support their historic claims that particular bodies were inland waters behind the coastline. Senator Kuchel of California, fully familiar with the problems of California, and on the alert to protect that State's interest in the bays and channels within its historic boundaries, interpreted the bill properly, I think, when he said: In recognizing State ownership of lands beneath navigable waters within historic State boundaries, this joint resolution wisely makes no attempt to define exactly what those boundaries are. In substance, the resolution provides that each of the States has ownership of all lands beneath navigable waters extending, in the case of littoral States, 3 geographical miles seaward from its coastline, or to its historic boundary.  [47] Thus up to this point in the legislative history I think it can be said that (1) the Holland bill as originally drafted unquestionably gave the States title to all submerged lands out as far as their historic boundaries; and (2) the elimination of the legislative definition of inland waters did not alter the original intent of the bill in the slightest degree, but rather left it up to the States to prove that particular bays, channels or harbors were inside their coastlines as part of their historic boundaries, according to the position in which both they and the Federal Government thought they were for more than a century and a half. [48]",the removal of the definition of inland waters.
+628,107057,2,2,"The Court calls attention to one other change in the bill before its enactment, and on the significance attributed to this one small change depends the validity of the Court's entire opinion. The Court says that this change was fundamental, of vital importance. It says that to the extent of this change, the philosophy [of the Holland Bill] was modified. Ante, p. 154. I find this altogether surprising, since when the change was introduced —by Senator Holland himself—and adopted almost immediately without any opposition being voiced, he said it was just a minor change of verbiage, [49] one of several minor changes for the purpose of clarification. [50] If the change was to have the dramatic effect which the Court attributes to it, Senator Holland certainly did not recognize it, for he said that it did not depart in the slightest from the intention of the sponsors of the joint resolution. [51] This amendment along with others was adopted after discussion occupying less than two pages in the Congressional Record, without a roll-call vote, without even one single objection from the Senate floor. Fundamental changes in the basic purpose of bills are never adopted in that way. Senator Holland's explanation that this was just a minor change of verbiage should be accepted by this Court, as I have no doubt it was accepted by the Senate. This change which its sponsor thought was minor and which the Court thinks is fundamental, and on which the Court's whole argument depends, merely modified the definition of boundaries in § 2 of the Act by adding: but in no event shall the term `boundaries' or the term `lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico. [52] The Court says that this language implicitly did away with the original and continued intention of the proponents of the bill to restore to the States the ownership of all submerged lands lying under all waters within their historic boundaries, wherever those boundaries lay, and instead established a rule that historic boundaries would not be honored if they extended more than three miles from the coastline, i. e., from the seaward edge of the inland waters as the Court today defines inland waters. The Court then reads the legislative history as destroying the historic definition of inland waters—which is, of course, all waters within a State's boundaries exclusive of claims to marginal sea—and substituting a very restrictive one based on this Court's decision in the California case, a reading which I have indicated above is, I think, flatly contrary to what the legislative history shows. The Court thus holds that by making two minor changes in the bill, which changes they said over and over again were of no substantive significance, the Senators supporting it silently repudiated in large measure their own intention, which they had proclaimed to the public and the Senate from the beginning and continued to proclaim to the end, of restoring to the States their historic constitutional boundaries. This three-mile or three-league limitation amendment was added for a very simple reason, which is plain in the Congressional Record and which shows that the sponsors of the bill were reaffirming rather than abandoning their basic original purpose in offering this and similar bills: they wished to restore to the States the submerged lands out to their historic boundaries, including three miles or leagues of marginal sea, but no farther. As reported from Committee, the bill gave the States submerged lands out to their boundaries at the time they entered the Union or as heretofore or hereafter approved by Congress without any limitation. It was feared by some that one or more of the States, none of which had ever claimed more than three miles (or leagues) of the marginal sea, might suddenly assert claims that their boundaries extended out hundreds of miles to the very limits of the Continental Shelf. [53] If allowed to do this, the fear was expressed, such States would be taking title to mineral wealth far beyond the historic boundaries to which the sponsors of the bill wished to confine them. The sponsors stated that their purpose was merely to restore to the States what they had thought they had had as boundaries—the outer part of the Continental Shelf was to belong to the Federal Government. [54] In order to prevent any States from trying to use the word boundaries in the Act to push their boundaries out beyond their historic three-mile or three-league claims to the marginal sea, Senator Holland himself introduced this amendment. It deleted the words or hereafter, thus limiting the States to any boundaries which they had previously claimed, in spite of any claims they might make in the future; and it also set forth as a limitation the Senators' understanding of the maximum extent of the marginal sea historically claimed by any State from or as a part of its historic boundaries: three geographical miles in the Atlantic and Pacific Oceans, and three leagues in the Gulf of Mexico. As Senator Holland explained, a limitation to existing boundaries had been the intention of the bill's sponsors all along, and it had been and was the understanding of the sponsors that no States claimed that their historic boundaries extended more than three miles from their coastlines in the Atlantic or Pacific Oceans. He said the three-mile limitation was just a minor change of verbiage [55] made in order to make very clear that Congress at this time is seeking to do only those things which the authors and supporters of the joint resolution have so very fully, and rather repeatedly, stated for the RECORD heretofore during the course of the debate. [56] He reiterated that The amendment will simply indicate that this Senate, in the passage of the joint resolution, is certainly not inviting additional claims, and it knows of no additional claims.  [57] Senator Holland, as the record shows, and many other Senators were well aware of California's existing claim, which is now before us, and could not have considered it to be additional. [58] Time and time again the proponents of the bill stated before the amendment was passed that no State claimed more than three miles or leagues of marginal sea as part of its historic boundaries, and no State would be given rights by the bill beyond those original claims. Said Senator Holland, I emphasize the fact that this joint resolution does not extend the boundary of any State beyond the 3-mile limit. [59] Said Senator Daniel, again before the amendment: . . . those of us who are coauthors of this measure have always understood that it was not necessary to write into the pending legislation a specific provision that it shall not apply to lands beyond 3 miles, or 3 leagues, because all the States are claiming is 3 miles, except in the Gulf of Mexico where historic boundaries are 3 leagues from shore. [60] He added: I believe that the exchange here within the past few minutes should make it very clear that the authors of this measure are not trying to give to the States, or to restore to the States, any lands outside their historic boundaries. [61] The claims of the States to a belt of marginal waters of course did not determine the location of the coastline from which such a belt would be measured. California's historic coastline, it says, was the outer limit of the bays and islands. In limiting the States to their historic claims of three miles or three leagues from their coast lines, wherever those coast lines might be, Congress unquestionably, I think, was leaving totally undisturbed the validity of their historic claims to the boundaries from which those belts would be measured. The Court's opinion lays great stress on an opinion expressed by Senator Holland that California's claim that its historic boundary of inland waters and marginal sea extended out to and three miles beyond its offshore islands was not persuasive. The Court leaves the impression that Senator Holland made a ruling that California's claim would not be covered by the Act. In fact he did nothing of the kind, but merely expressed the opinion to opponents of the bill who said that restoring the States to their historic boundaries would give them too large an area of submerged lands and who cited California's claim to the channel as an example, that he thought California would have a difficult time in proving that its historic boundary extended so far. The context of Senator Holland's remarks is important to set out in full, since when read in context his opinion, which he later repeated on several occasions, serves to emphasize that he intended that each State be allowed to prove where its historic boundaries lay, which is all that California is asking that it be allowed to do here, and which is what the Court now denies it. The exchange began when Senator Long of Louisiana asked Senator Holland about how far seaward Louisiana's boundary would extend under the bill. Senator Long said: Now, if I understand correctly, the Senator is not proposing that the actual determination of exactly what was the historic boundary at the time Louisiana came into the Union be decided by the Congress, but rather that the question of the historic boundary of the State might be one still subject to actual judicial determination. Senator HOLLAND. Of course, the Senator is right. ..... Senator HOLLAND. We cannot draft general legislation that will still every possible legal question. [62] Senator Anderson of New Mexico then asked Senator Holland whether the bill validated the claim of California that its historic boundary extended to the offshore islands with a three-mile belt of marginal sea beyond them. To this Senator Holland replied: The Senator from Florida can only give his opinion, and in his opinion it would not, because of the great depths of the water that exist between the coastline of California and the extrusions from the sea bottom which appear out there, and some of which are above the level of the water. Again, though, the Senator from Florida states that that would be a matter, naturally, on which the courts would be asked to rule. We are not going to find any formula that displaces the function of the courts to go into cases and find which cases come within the general doctrine announced by legislation and which fall without that legislation. [63] In other words, the bill did not settle definitively the question of fact as to whether California's historic boundary was to be measured from the outer rim of the islands. That was a question on which courts would have to hear evidence and then decide according to the general doctrine announced by [this] legislation—the doctrine, as Senator Holland and others repeated so many times, that the States were to be restored to their historic boundaries. And as he said in summary, there was nothing in his bill which would diminish California's claim to the waters and submerged lands around its offshore islands. [64] In later referring to the adoption of Senator Holland's amendment to the bill, Senator Daniel of Texas said, the intention was to write specifically into the joint resolution what the authors have said all along would be its effect—that it covered only land within the historic boundaries. [65] As a further indication that the three-miles-from-coastline amendment was not intended to affect States' claims to their historic boundaries, the record shows that opponents of the bill subsequently tried to amend it to restrict the line from which the three-mile limits would be measured, and failed. Senator Douglas of Illinois, a leader of the opposition, proposed an amendment which would have changed the definition of coast line in the bill so that the three miles would be measured only from the main continent, and separately around any islands, thus cutting off California's claim to the submerged lands between the islands and the mainland, which is largely the issue before us now. Senator Douglas indicated specifically that his proposed amendment was intended to destroy California's claim to those submerged lands, and that he had warned Senator Kuchel of California of his intention to introduce it. [66] Senator Long of Louisiana objected that the Senator from Illinois is submitting his own definition of inland waters. [67] Senator Douglas' amendment was defeated, [68] and California's historic claims, for whatever they might prove to be worth, were left, as Senator Holland had stated, undiminished. I think that this review of the relevant hearings and debates in the Senate makes clear three things: (1) As originally proposed, the bill was intended to restore to the States title to submerged lands within their historic boundaries, whatever those might prove to be. (2) The removal of the explicit definition of inland waters, far from being, as the Court views it, fundamental, was not a change of substance [69] and was not done in any manner to prejudice the rights of the States; [70] it was intended merely to avoid possible embarrassment in the field of international relations from a bill which had nothing to do with international relations or international law, being merely a transfer of title. [71] (3) The addition of the limitation of boundaries to three miles beyond the coastline, far from being, as the Court views it, fundamental, was just a minor change of verbiage [72] intended to make clear what the bill's sponsors had intended all along: that the bill was not designed to allow States in the future to push their boundaries out to the limits of the Continental Shelf, but rather to limit them to everything within their historic boundaries, including historic coastlines and historic three-mile or three-league claims to the marginal sea beyond. Near the conclusion of the debates on the bill Senator Holland in explaining its purpose used these words, which I do not think show any fundamental or even perceptible changes or modifications of philosophy from those he had used in his first speech on the bill: The truth is that Senate Joint Resolution 13 simply restores or gives back to the States the submerged lands within their historic boundaries which they have possessed, used and developed in good faith for over 100 years. . . . ..... . . . It would write the law for the future as it was believed to exist in the past by restoring to the States all lands beneath navigable waters within their historic boundaries. [73]",the three-mile or three-league limitation.
+629,107057,2,3,"The hearings and debates in the House were less extensive than those in the Senate, but the intention of the legislators there to restore to the States all submerged lands within their historic boundaries was no less explicit. Forty different bills, of which one [74] was identical with the Senate Joint Resolution passed by both Houses the year before and with the Senate bill introduced by Senator Holland, were considered by the House Subcommittee and Committee. The Committee chose the latter bill and with minor perfecting amendments reported it favorably to the House. [75] Typical of the testimony at the hearings was the statement by Attorney General Brownell that: The States want, and we believe they are entitled to, all the development rights, you might say, in these submerged lands within their historic boundaries. [76] The House Committee Report on the bill said: Title II confirms and establishes the rights and claims of the 48 States, asserted and exercised by them throughout our country's history, to the lands beneath navigable waters within State boundaries and the resources within such lands and waters. [77] In explaining the bill to the members of the House, Congressman Willis of Louisiana, a member of the Committee and a supporter of the bill, said: First, it restores to the States complete title to the submerged lands up to the limit of their historic boundaries. [78] And on the floor Congressman Wilson of Texas, also a Committee member and supporter of the bill, explained its purpose in the following exchange: Mr. WILSON of Texas.. . . Bear in mind that this is title II, the title that returns or restores this seaward boundary within the historical boundaries of the States to the States . . . . ..... Mr. HALLECK. If we stick to the provisions of the bill, then we are just being consistent with respect to the title to the land within the historic boundaries? Mr. WILSON of Texas. That is true. [79] The House bill, passed with this intention, was then sent to the Senate, which at that time was considering Senator Holland's bill, a virtually identical measure. After the Senate passed the Holland bill, with the two changes which the Court deems fundamental, Congressman Reed, Chairman of the House Judiciary Committee, which had reported the House bill, asked the members of the House to accede to their bill as amended by the Senate. He prefaced his remarks by saying: Mr. Speaker, I trust that 3 minutes will be sufficient for me to say all that I deem necessary about this resolution. [80] He then proceeded in these words to tell the members of the House what had happened to their bill as adopted by the Senate: Titles I and II of the original bill, H. R. 4198, are now before us. There have been no substantial changes made by the Senate in these titles. They are practically the same as when passed by the House except in a few instances where a few words and phrases here and there have been changed or deleted for clarification. About the only thing that is substantially new in this bill is a reassertion by the Senate in section 9 which confirms the rights of the United States to the jurisdiction and control of the lands under the Continental Shelf outside of State boundaries. [81] Relying on these assurances by Chairman Reed that there had been no substantial changes made in the bill by the Senate, the House without further discussion of the portions of the bill here involved proceeded to adopt the Senate version, which after being signed by the President became the Submerged Lands Act of 1953. This, then, is the legislative history of the Submerged Lands Act, both in the Senate and in the House, which, according to the Court, shows that the sponsors and supporters of the Act completely altered their intention of restoring to the States the submerged lands within their historic boundaries, and instead left the States with what the Court allows them today. I think that the statements and actions of the supporters of the bill show on the contrary that the intention of restoring all submerged lands under all waters within historic state boundaries was plainly and explicitly stated and understood by all from the beginning, and, despite attacks from opponents of the bill, never varied. Time and time again the Senators and Congressmen repeated that the bill had not been changed in any way to diminish the rights granted to the States in the bill as originally introduced—rights which, as the Court does not dispute, included the right to all submerged lands under all waters within historic state boundaries. I would follow the understanding of the authors and supporters of the bill, and I would take them at their word.",the house legislative history.
+630,88252,1,1,"Advances for repairs and supplies to the steamer named in the pleadings were made by the libellants to an amount much larger than the sum claimed in the libel, and allowed in the decree of the District Court. Payments made before the suit was instituted were deducted from the claim as set forth in the libel, and it was ordered, adjudged, and decreed by the District Court, that there was due to the libellants at the date of the decree the sum of five thousand one hundred and thirty-two dollars and thirty-six cents as a lien upon the steamer, for which the stipulators for value were liable. Process was duly served in the District Court, and the owner of the steamer appeared as claimant and filed an answer setting up several defences, as follows: (1.) That the repairs and supplies were not necessary, as alleged in the libel. (2.) That they were not made and furnished on the credit of the steamer. (3.) That the steamer is not chargeable with the moneys advanced for the repairs and supplies described in the libel, as they were not made and furnished under a maritime contract. (4.) That the libellants brought a common law suit for the same cause of action before the libel was filed, and that the same is still pending and undecided. None of these defences call in question the correctness of the charges in the account, and no motion was made to refer the cause to an assessor to report the amount of the expenditure, nor was any exception taken to the finding of the District Court in that behalf. Appeal was taken by the owner and claimant of the steamer from the decree of the District Court to the Circuit Court, where the decree of the District Court was reversed. Remarks respecting the correctness or incorrectness of the accounts exhibited in the record may well be omitted, as it is not pretended that, in view of the evidence, there can be any well-founded doubt that the advances were made as therein set forth. Distinct issues of law are presented in the pleadings, and the District and Circuit Courts differed as widely as the parties; the former holding that the advances were a lien upon the steamer under the general rules of the maritime law. On the other hand the Circuit Court, in deference to certain expressions contained in the opinions of this court in the two cases of Thomas v. Osborn [] and Pratt v. Reed, [†] held that the advances were the mere personal debt of the owner, that they did not constitute a lien upon the steamer, and accordingly dismissed the libel, which was a libel in rem against the steamer, setting up a maritime lien. Whereupon the libellants appealed to this court, and now seek to reverse that decree. Before examining the special defence set up by the respondent, growing out of the contract of the libellants to employ the steamer in two or more trips between Baltimore and Charleston, it becomes necessary to define with some precision what is meant by a maritime lien as affording a security for such advances, and under what circumstances it arises where repairs are made or supplies are furnished to a vessel engaged in commerce and navigation. In considering that question it will be sufficient to state that the owner of the steamer throughout that period was a resident of the city of New York, and that the port of New York was the home port of the steamer, as conceded by both parties. Proof satisfactory to both courts was introduced, showing that the steamer needed the repairs and supplies when the advances were made by the libellants, and that they were made while the steamer was lying in the port of Baltimore, where the libellants resided, to enable the steamer to continue her regular trips as contemplated by her owner; that her master had no funds which he could apply to that purpose, nor could he procure any on the credit of the owner, and that all of the advances were made at the request of the master, in the absence of the owner, or by the owner in person when he was present. Contracts or claims for service or damage purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. Wherever a maritime lien arises in such a contract or claim, as in controversies respecting repairs made or supplies furnished to a ship, or in case of collision, the injured party may pursue his remedy, whether it be for a breach of a maritime contract or for a marine tort, by a suit in rem against the vessel, or by a suit in personam, at his election, against the owner, or against the master and owner in cases where they are jointly liable for the alleged default. [] By the civil law a lien upon the ship is given, without any express contract, to those who repair the vessel or furnish her with necessary supplies, whether the vessel was at her home port or abroad, when the repairs and supplies were made and furnished. [†] But the only lien which the common law recognizes in such cases, independent of statutory regulations, is the possessory lien, which arises out of, and is dependent upon, the possession of the ship, as in cases where goods are delivered to an artisan or tradesman to be repaired or manufactured. Such a lien, as understood at common law, did not attach unless the ship was in the possession of the person who set up the claim, and the extent of the privilege which it conferred was that he might retain the ship in his possession until he was paid the money due him for the repairs made and the supplies furnished. Until paid he might refuse to surrender the ship, but if he relinquished the possession of the ship his lien was displaced and extinguished. [] In jurisdictions where the rules of the common law prevail the shipwright who works upon the ship, without taking possession of it, or if he parts with the possession before collecting what is due for his services, is not deemed to be a privileged creditor, nor is the merchant so considered who furnishes the ship with necessary supplies unless the ship is placed within his control. [†] Important alterations have recently been made in those rules of decision by acts of Parliament; but it is not necessary to pursue that inquiry, as those rules were never regarded as rules of decision in the admiralty courts of this country exercising jurisdiction under the present Constitution and the laws of Congress. On the contrary, some of the Federal courts, immediately after their organization under the Judiciary Act, decided that repairs made and supplies furnished to a ship, if made and furnished on the credit of the ship, were a lien upon the ship, whether she was at the time in her home port or in a foreign port. Other district judges were of the opinion that a maritime lien did not arise if the repairs were made and the supplies were furnished in the home port of the vessel, and some uncertainty for a time prevailed upon the subject until the same was examined by this court, when the question was put at rest. [‡] Such a lien is a privilege in the thing, and is not dependent upon possession or registry, nor is it displaced, as in a contract of affreightment, when possession is relinquished, unless the circumstances are such as to show that it was waived; nor is it lost by delay, unless for such a time as to show gross laches, and to afford a reasonable presumption that it was abandoned. [] Where repairs had been made and supplies furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, said Judge Story, following the civil law, gives the party a lien on the ship itself for security, and he may well maintain a suit in rem in the admiralty to enforce his right. Many of the rules of the general maritime law are doubtless drawn from the civil law; but it is not quite correct to say that the maritime law of the United States, as laid down in that case, follows the civil law in respect to the lien conceded to the shipwright and tradesman who make repairs and furnish supplies to ships engaged in commerce and navigation, as the civil law extends that privilege to such repairers and furnishers without any such distinction between domestic and foreign vessels, as that which is constantly maintained in the decisions of this court. [†] Ports of States other than those where the vessel belongs are for that purpose considered as foreign ports, and of course the port where the steamer in this case was lying when the repairs were made and the supplies were furnished must be regarded, as between the parties in this controversy, as a foreign port. [‡] Controversies respecting such liens usually arise in cases where the repairs or supplies were ordered by the master without any express directions from the owner, and in such cases the repairer or furnisher must prove affirmatively that the ship needed such repairs and supplies, as the authority of the master in such a case is implied from the necessity for the repairs or supplies, the want of funds for that purpose, the inability to procure the same, and the absence of the owner. Where it appears that the repairs and supplies were necessary to preserve the ship in port, or to enable her to proceed on her voyage, and that they were made and furnished in good faith, the presumption is that the ship, as well as the master and owner, is responsible to those who made the necessary advances, and it is clear that the necessity for credit must be presumed where it appears that the repairs and supplies were ordered by the master, and that they were necessary for the ship, unless it is shown that the master had funds or that the owner had sufficient credit, and that the repairers, furnishers, and lenders of the money knew those facts or one of them, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry, and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel. Subject to those conditions, the master, in the absence of the owner, is vested with the authority to order necessary repairs and supplies, but it is no objection to his authority that he acted on the occasion under the express instructions of the owner, nor will the lien of those who made the repairs and furnished the supplies be defeated by the fact that his authority emanated from the owner instead of being implied by law. When the owner is present the implied authority of the master for that purpose ceases, but if the owner gives directions to that effect the master may still order necessary repairs and supplies, and if the ship is at the time in a foreign port, or in the port of a State other than that of the State to which she belongs, those who make the advances will have a maritime lien, if they were made on the credit of the vessel. Grant all these several propositions, still it is contended by the respondent that no such lien arises in this case because, as he insists, the repairs were made and supplies furnished in pursuance of a contract with the owner, by which the appellants assumed the entire charge of the steamer for a series of trips and were to receive the specified compensation of ten per cent. commission on the gross freights. Doubtless some of the repairs and supplies were ordered by the owner, and the respondent contends that the appellants, by virtue of the arrangement, became the agents of the owner, and that it was in that capacity that they freighted the steamer and paid the expenses of the repairs and supplies, without any other lien upon the steamer than that given by the common law. Strong doubts are entertained whether the written agreement, even if it had continued in force without alteration, and if the advances in question had been made under it, would support the theory set up by the respondent, but it is not absolutely necessary to decide that point, as it is quite clear that the repairs were made and supplies furnished in every case either by the order of the master or the owner, and with the express understanding that they were so made and furnished on the credit of the steamer. They employed the steamer, in the first place, under the written agreement of the fourteenth of March, 1866, for two trips between Baltimore and Charleston, and it was agreed that they were to receive ten per cent. commissions on the gross freights, and that they should disburse the steamer, but they also stipulated to have the freights and disbursements insured for the benefit of the owner, which shows to a demonstration that they were not owners for the voyage. Suggestion is made that they changed the master and selected some of the crew, but the evidence shows that all those acts were performed by the consent of the owner and subject to his approval. Much the larger portion of the advances was paid before the libel was filed, and additional payments have since been made. Viewed, as the state of the case was, at the date of the decree entered in the District Court, it is not doubted that an amount much greater than the amount allowed in that decree had been disbursed by the libellants for repairs and supplies to the steamer subsequent to the two trips made under the written agreement. Suppose the libellants had no lien for the disbursements made under that agreement, which is not admitted, still it is fully proved that the appellants, subsequent to the two trips, refused to make further advances on the credit of the owner, and that the owner expressly requested that the advances should be made on the credit of the steamer. Implied liens, it is said, can be created only by the master, but if it is meant by that proposition that the owner, or owners, if more than one, cannot order repairs and supplies on the credit of the vessel, the court cannot assent to the proposition, as the practice is constantly otherwise. Undoubtedly the presence of the owner defeats the implied authority of the master, but the presence of the owner would not destroy such credit as is necessary to furnish food to the mariners and save the vessel and cargo from the perils of the seas. [] More stringent rules apply as between one part-owner and another, but the case is free from all difficulty if all the owners are present and the advances are made at their request, or by their directions, and under an agreement, express or implied, that the same are made on the credit of the vessel. Were it not so mariners would refuse to ship for distant ports if the owner was to remain with the ship, either as supercargo or passenger, unless it was known that he had credit everywhere, as in case the ship should become disabled and need repairs and provisions the most reliable means of relief would be withdrawn, and it is not difficult to imagine a case where life and property might be lost because the owner was on board and without personal credit. Decree of the Circuit Court REVERSED, and the cause remanded with directions to enter a decree AFFIRMING THE DECREE OF THE DISTRICT COURT.",in the kalorama.
+631,88252,1,2,"Jurisdiction, it is conceded, is vested in the district courts, by the ninth section of the Judiciary Act, to enforce maritime liens by a suit in rem in all cases where such liens arise, whether the libel is for the breach of a maritime contract or to recover damages for a marine tort. Repairs were made and supplies furnished by the appellants to the steamer named in the pleadings, and the owners of the steamer refusing to pay for the same, the appellants filed their libel in the District Court for the District of Maryland, and caused the steamer to be arrested, claiming that the repairs and the supplies were a lien upon the steamer. Appearance was entered by the owners of the steamer, as claimants of the same, and they filed an answer setting up the same defences as those pleaded by the owner of the steamer in the suit just decided. Testimony was taken by both parties in the two suits, as exhibited in the transcript of the other suit, and the parties entered into a stipulation that reference might be made in the trial of this suit to the depositions printed in the other, and that both should be heard at the same time. Two principal questions, it seems, were discussed in the District Court. (1.) Whether the evidence showed that the credit for the repairs and supplies was or was not given to the steamer, under the rules of the maritime law as understood and administered in the Federal courts. (2.) Whether the repairs made and the supplies furnished, in view of the circumstances, became a lien upon the steamer. Both of those questions were answered by the district judge in the affirmative, and the court entered a decree for the libellants in the sum of six thousand four hundred and ninety-six dollars and sixty-three cents against the owners of the steamer and the stipulators for value. Appeal was taken by the respondents to the Circuit Court, where the decree of the District Court was reversed, upon the ground that the evidence in the transcript, if tested by the rules laid down in Thomas v. Osborn, [] and in the case of Pratt v. Reed, [†] does not show the existence of any such lien. Since that ruling was made the whole subject has been very fully reconsidered by this court in the case of The Grapeshot, [‡] in which the opinion was given by the Chief Justice. Viewed in the light of that decision, and of the opinion of the court in the case of The Lulu, [§] lately delivered, as the case must be, it is clear that further discussion of the same is unnecessary, as it is conclusively settled that where proof is made of necessity for the repairs and supplies, or for funds raised to pay for the same, and of credit given to the ship, a presumption will arise, conclusive in the absence of evidence to the contrary, of necessity for credit, or, in other words, the necessity for credit must be presumed where it appears that the repairs and supplies were necessary, unless it is shown that the master had funds, or that the owner had sufficient credit, and that the person or persons making the advances knew those facts or one of them, or that such facts and circumstances were known to them as were sufficient to put them upon inquiry, and to show that if they had used due diligence in that behalf they would have ascertained that the master was not authorized to obtain any such relief on the credit of the steamer. Suppose that defence cannot be sustained, still the respondents insist that the steamer is not liable for the advances made by the appellants, because the decree, as they contend, falls within the rule laid down in the case of Minturn v. Maynard, [] where it was held that a libel in personam could not be maintained to recover a balance of account, consisting of moneys paid, laid out, and expended for the respondents in payment for repairs and supplies to a steamer owned by the debtors, together with charges for commissions and for advertising the steamer. Examples might easily be given where a party may sue in the admiralty or in the common law courts at his election, but it is unnecessary to express any doubts as to the correctness of the rule laid down in that case, as it is clear that it does not control the case before the court even if the rule be admitted to be correct without any qualification. [†] Undoubtedly the appellants took charge of the steamer for two trial trips between Baltimore and Charleston, and by the terms of the written agreement entered into at that time they were to receive for the services rendered in those trips a commission of ten per cent. on the gross freights of the steamer, but they also stipulated to disburse the steamer, and to insure the freights and disbursements for the benefit of the owners. They took the steamer on trial for those two trips with a view to purchase her in case they were satisfied with the vessel, but they elected not to make the purchase, and subsequently refused to disburse the steamer on the credit of the owners. Uncontradicted as the evidence is upon this point, it does not seem necessary to reproduce it, especially as it is all one way. Objection is also made that the advances cannot be held to be a lien upon the steamer, because some of the repairs and supplies were ordered by the owners in person, but the objection is entitled to no weight, as the evidence shows that it was expressly agreed that the advances should be furnished on the credit of the steamer. [‡] Payments have been made by the respondents since the decree was entered in the District Court, but the court here is not asked to revise the finding of the District Court as to the amount, nor to deduct the payments since made, as those matters will be adjusted under the stipulations executed between the parties. Suggestion is also made that the lien was waived by the commencement of an action for the advances in the State court, but the record shows that the action is still pending, and it is well-settled law that the pendency of such an action is no bar to a suit in a Federal court. [] Had the judgment been rendered it might be different, but it is clear that the rule transit in rem judicatam cannot apply during the pendency of the action. [†] All sums collected in that proceeding have been duly credited in this case, and it is fully proved that the whole amount included in the decree of the District Court was properly cognizable in the admiralty. Decree of the Circuit Court is REVERSED, and the cause remanded with directions to enter a decree AFFIRMING THE DECREE OF THE DISTRICT COURT.",in the custer.
+632,98794,1,1,"II. Ex arbitrio judicis. Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment insufficient, or doubtful whether within clergy; and sometimes after judgment, if it be a small felony, tho out of clergy, or in order to a pardon or transportation. Crompt. Just. 22, b. and these arbitrary reprieves may be granted or taken off by the justices of gaol-delivery, altho their sessions be adjourned or finished, and this by reason of common usage. Dy. 205 a. III. Ex necessitate legis, which is in case of pregnancy, where a woman is convict of felony or treason. Blackstone thus expresses it: The only other remaining ways of avoiding the execution of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the latter permanent. I. A reprieve, from reprendre, to take back, is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may be, first, ex arbitrio judicis; either before or after judgment; as, where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offence be within clergy; or sometimes if it be a small felony, or any favourable circumstances appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of goal delivery, although their session be finished, and their commission expired: but this rather by common usage, than of strict right. Reprieve may also be ex necessitate legis: as, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered. This is a mercy dictated by the law of nature, in favorem prolis.  (Book IV, ch. xxxi, pp. 394-395.) While it may not be doubted under the common law as thus stated that courts possessed and asserted the right to exert judicial discretion in the enforcement of the law to temporarily suspend either the imposition of sentence or its execution when imposed to the end that pardon might be procured or that a violation of law in other respects might be prevented, we are unable to perceive any ground for sustaining the proposition that at common law the courts possessed or claimed the right which is here insisted upon. No elaboration could make this plainer than does the text of the passages quoted. It is true that, owing to the want of power in common law courts to grant new trials and to the absence of a right to review convictions in a higher court, it is we think to be conceded: (a) That both suspensions of sentence and suspensions of the enforcement of sentence, temporary in character, were often resorted to on grounds of error or miscarriage of justice which under our system would be corrected either by new trials or by the exercise of the power to review. (b) That not infrequently, where the suspension either of the imposition of a sentence or of its execution was made for the purpose of enabling a pardon to be sought or bestowed, by a failure to further proceed in the criminal cause in the future, although no pardon had been sought or obtained, the punishment fixed by law was escaped. But neither of these conditions serves to convert the mere exercise of a judicial discretion to temporarily suspend for the accomplishment of a purpose contemplated by law into the existence of an arbitrary judicial power to permanently refuse to enforce the law. And we can deduce no support for the contrary contention from the rulings in 2 Dyer, 165a, 205a and 235a, since those cases but illustrate the exercise of the conceded, reasonable, discretionary power to reprieve to enable a lawful end to be attained. Nor from the fact that common law courts possessed the power by recognizances to secure good behavior, that is, to enforce the law, do we think any support is afforded for the proposition that those courts possessed the arbitrary discretion to permanently decline to enforce the law. The cases of Rex v. Hart, 30 How. State Trials, 1344, and Regina v. Dunn, 12 Q.B. 1026, 1041, certainly do not tend to so establish, since they simply manifest the exertion of the power of the courts after a conviction and the suffering of the legal penalty to exact from the convicted person a bond for his good behavior thereafter. 3. The support for the power asserted claimed to be derived from the adjudication of state and federal courts. Coming first to the state courts, undoubtedly there is conflict in the decisions. The area, however, of conflict will be narrowed by briefly stating and contrasting the cases. We shall do so by referring chronologically to the cases denying the power, and then to those relied upon to establish it. In 1838 the Supreme Court of North Carolina in State v. Bennett, 4 Dev. & Battle's Law, 43, was called upon to decide whether a trial court had the right to permanently remit upon condition a part of a criminal sentence fixed by statute. The court said: We know that a practice has prevailed to some extent of inflicting fines with the provision that they should be diminished or remitted altogether upon matter thereafter to be done, or shown to the Court by the person convicted. But we can find no authority in law for this practice, and feel ourselves bound, upon this first occasion when it is brought judicially to our notice, to declare it illegal. In 1860 in People v. Morrisette, 20 How. Pr. 118, an accused after pleading guilty asked a suspension of sentence and to be then discharged from custody. The court said: I am of the opinion the court does not possess the power to suspend sentence indefinitely in any case. As I understand the law, it is the duty of the court, unless application be made for a new trial, or a motion in arrest of judgment be made for some defect in the indictment, to pronounce judgment upon every prisoner convicted of crime by a jury, or who pleads guilty. An indefinite suspension of the sentence prescribed by law is a quasi pardon, provided the prisoner be discharged from imprisonment. No court in the state has any pardoning power. That power is vested exclusively in the governor.",Ex mandato regis.
+633,85889,1,1,"32 1st. The account was one entire document, and the defendant, if he elected to rely on any part thereof, was bound, by the general rules of evidence, to take the whole as evidence, so far as it was pertinent to the subject matter of the suit. 33 2d. There is the more reason for adhering to the general rule in this case, because the account was stated by a public officer, to whom, by law, and by the contract of the parties, the duty of settling the accounts in question was to be referred. 34 The Attorney-General argued, that the treasury statement exhibited and read in evidence on the trial of the cause, ought to have been admitted as prima facie evidence of the balance due to the United States. Large sums were admitted to have been received by Orr; and this was sufficient to authorise the admission of other items in the accounts, not included in those sums. These items were charges, in some instances, for sums paid on warrants drawn in favour of the contractor, and in others, for sums paid also on warrants, in favour of other persons under his authority. 35 He cited the acts of congress relative to the settlement of public accounts. Act of 1792, 2 Laws U. S. 303; Act of 1797, 2 Laws U. S. 594; Act of 1795, 2 Laws U. S. 502; Act of July 16, 1798, 3 Laws U. S. 114; Act of 3 March 1817, 6 Laws U. S. 36 By the act of 1817, all accounts for army supplies are to be settled at the treasury department, and the third auditor is particularly charged with the settlement of army accounts. This act refers to the law of 1799, and adopts it as applying to accounts to be settled by the third auditor; and the law of 1797 makes the books and proceedings of the treasury evidence. 37 The auditor had a right to charge the defendant's intestate for warrants drawn in favour of other persons on his contract. He was bound, and had authority to inquire, whether the advances were made on the contract, and by his order. He must have had evidence of the money having been drawn by such order. 38 The transcript was certainly evidence, and was so admitted; and the whole question in the court below was as to the effect of that evidence. If it was evidence of money paid to Orr himself, it must be evidence of money paid to others by his order. 39 The vouchers for the payment to Richard Smith, of nineteen thousand one hundred and forty-nine dollars and one cent, must have been left in the office, and have been the authority on which the payment is made. The warrant for the account must have shown the authority by which the money was paid, and this was apparent upon it, viz. the orders in favour of Richard Smith and others. 40 It could not have been the exclusive object of the act of congress making the transcript evidence to supersede the necessity of producing the original books. 41 The whole sums charged in the account growing out of the warrants, stand on the same ground, and come within the ordinary official action of the auditor; and the whole account, thus entered, should have been admitted as proved, prima facie. 42 The Attorney-General referred to the case of the United States v. Buford, 3 Peters 12, and contended that the principles laid down by the court in that case had no application to the present question. 43 Upon the second exception, it was argued, that the permission to use a part of the account in his favour, by the defendant, and yet to deny that the other parts of the same account were evidence against him, was contrary to the established rules of evidence. Cited: 1 Wash. C. C. R. 344; Bell v. Davidson, 3 Wash. C. C. R. 328. The whole transcript was one paper, and all its contents should have been taken together. Mr Coxe and Mr Jones, contra: 44 The principles involved in this case are of general importance. In the cases of The United States v. Fillebrown, 7 Peters 28; The United States v. M'Daniel, 7 Peters 1, and The United States v. Ripley, 7 Peters 18, the same questions were under examination. The decisions of the court in these cases are decisive upon the matters now presented for their consideration. 45 The transcript was admitted as competent evidence, but the question was as to the effect of the evidence: what did it prove? The act of congress of 1797 makes the treasury transcripts evidence; but this was for the purpose, only, of substituting the transcripts for the original books and accounts of the treasury. 46 The books, if produced, would only be evidence of the money paid on the warrant, which is very special; and the receipt is given on the warrant, which receipt authorises the charge against the party to whom the money was paid. But it furnishes no evidence to charge any other person. The authority given by Orr to some person to receive money, is not a proceeding at the treasury, or to be proved by a transcript. Cited: The United States v. Buford, 3 Peters 29, 6 Peters 172, 201; also, the case of Randolph, decided by Mr Chief Justice Marshall and Judge Barbour, in Virginia, in 1833. 47 The balance of the account transferred from the books of the second auditor, cannot be proved by its entry in the transcript. The transcript of the account should have been produced, and it could be seen from it, which part of the sum claimed as the balance, was proved by it. Its introduction in this form as an item of debit can have no effect. 48 As to the second exception. The general rule of evidence which obliges a party who introduces a piece of evidence, to take the whole together, is distinguishable from the rule which sanctions the claim of the defendant to the credits in the account, without admitting the debits. In this case, the plaintiff introduced the account. It contained the admissions of the United States, that the defendant was entitled to certain credits. They had been established by vouchers, which were retained by the treasury department. The defendant had a right to call upon the treasury department for a list of these credits, without their being connected with an account containing charges against him. They are not conditional credits, or such as the United States allowed in the event of the debits being admitted. They are independent and absolute charges against the United States, and have no other connection with the debits against the defendant, than that they arose out of the same transaction. 49 The exception allowed by Judge Washington, in the circuit court of Pennsylvania, (Bell v. Davidson, 3 Wash. C. C. R. 328) was the principle claimed for the defendant. 50",The court erred in its decision on the second point above stated——
+634,107439,2,6,We shall not consider other issues which were passed upon by the Supreme Court of Arizona. We emphasize that we indicate no opinion as to whether the decision of that court with respect to such other issues does or does not conflict with requirements of the Federal Constitution. [7],Right to appellate review.
+635,107439,1,4,"Appellants charge that the Juvenile Court proceedings were fatally defective because the court did not advise Gerald or his parents of their right to counsel, and proceeded with the hearing, the adjudication of delinquency and the order of commitment in the absence of counsel for the child and his parents or an express waiver of the right thereto. The Supreme Court of Arizona pointed out that [t]here is disagreement [among the various jurisdictions] as to whether the court must advise the infant that he has a right to counsel. [55] It noted its own decision in Arizona State Dept. of Public Welfare v. Barlow, 80 Ariz. 249, 296 P. 2d 298 (1956), to the effect that the parents of an infant in a juvenile proceeding cannot be denied representation by counsel of their choosing. (Emphasis added.) It referred to a provision of the Juvenile Code which it characterized as requiring that the probation officer shall look after the interests of neglected, delinquent and dependent children, including representing their interests in court. [56] The court argued that The parent and the probation officer may be relied upon to protect the infant's interests. Accordingly it rejected the proposition that due process requires that an infant have a right to counsel. It said that juvenile courts have the discretion, but not the duty, to allow such representation; it referred specifically to the situation in which the Juvenile Court discerns conflict between the child and his parents as an instance in which this discretion might be exercised. We do not agree. Probation officers, in the Arizona scheme, are also arresting officers. They initiate proceedings and file petitions which they verify, as here, alleging the delinquency of the child; and they testify, as here, against the child. And here the probation officer was also superintendent of the Detention Home. The probation officer cannot act as counsel for the child. His role in the adjudicatory hearing, by statute and in fact, is as arresting officer and witness against the child. Nor can the judge represent the child. There is no material difference in this respect between adult and juvenile proceedings of the sort here involved. In adult proceedings, this contention has been foreclosed by decisions of this Court. [57] A proceeding where the issue is whether the child will be found to be delinquent and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, [58] to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child requires the guiding hand of counsel at every step in the proceedings against him. [59] Just as in Kent v. United States, supra, at 561-562, we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now that it is equally essential for the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution until the juvenile reaches the age of 21. [60] During the last decade, court decisions, [61] experts, [62] and legislatures [63] have demonstrated increasing recognition of this view. In at least one-third of the States, statutes now provide for the right of representation by retained counsel in juvenile delinquency proceedings, notice of the right, or assignment of counsel, or a combination of these. In other States, court rules have similar provisions. [64] The President's Crime Commission has recently recommended that in order to assure procedural justice for the child, it is necessary that Counsel . . . be appointed as a matter of course wherever coercive action is a possibility, without requiring any affirmative choice by child or parent. [65] As stated by the authoritative Standards for Juvenile and Family Courts, published by the Children's Bureau of the United States Department of Health, Education, and Welfare: As a component part of a fair hearing required by due process guaranteed under the 14th amendment, notice of the right to counsel should be required at all hearings and counsel provided upon request when the family is financially unable to employ counsel. Standards, p. 57. This statement was reviewed by the National Council of Juvenile Court Judges at its 1965 Convention and they found no fault with it. [66] The New York Family Court Act contains the following statement: This act declares that minors have a right to the assistance of counsel of their own choosing or of law guardians [67] in neglect proceedings under article three and in proceedings to determine juvenile delinquency and whether a person is in need of supervision under article seven. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition. [68] The Act provides that At the commencement of any hearing under the delinquency article of the statute, the juvenile and his parent shall be advised of the juvenile's right to be represented by counsel chosen by him or his parent . . . or by a law guardian assigned by the court . . . . [69] The California Act (1961) also requires appointment of counsel. [70] We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child. At the habeas corpus proceeding, Mrs. Gault testified that she knew that she could have appeared with counsel at the juvenile hearing. This knowledge is not a waiver of the right to counsel which she and her juvenile son had, as we have defined it. They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right. If they were unable to afford to employ counsel, they were entitled in view of the seriousness of the charge and the potential commitment, to appointed counsel, unless they chose waiver. Mrs. Gault's knowledge that she could employ counsel was not an intentional relinquishment or abandonment of a fully known right. [71]",right to counsel.
+636,107439,1,5,"Appellants urge that the writ of habeas corpus should have been granted because of the denial of the rights of confrontation and cross-examination in the Juvenile Court hearings, and because the privilege against self-incrimination was not observed. The Juvenile Court Judge testified at the habeas corpus hearing that he had proceeded on the basis of Gerald's admissions at the two hearings. Appellants attack this on the ground that the admissions were obtained in disregard of the privilege against self-incrimination. [72] If the confession is disregarded, appellants argue that the delinquency conclusion, since it was fundamentally based on a finding that Gerald had made lewd remarks during the phone call to Mrs. Cook, is fatally defective for failure to accord the rights of confrontation and cross-examination which the Due Process Clause of the Fourteenth Amendment of the Federal Constitution guarantees in state proceedings generally. [73] Our first question, then, is whether Gerald's admission was improperly obtained and relied on as the basis of decision, in conflict with the Federal Constitution. For this purpose, it is necessary briefly to recall the relevant facts. Mrs. Cook, the complainant, and the recipient of the alleged telephone call, was not called as a witness. Gerald's mother asked the Juvenile Court Judge why Mrs. Cook was not present and the judge replied that she didn't have to be present. So far as appears, Mrs. Cook was spoken to only once, by Officer Flagg, and this was by telephone. The judge did not speak with her on any occasion. Gerald had been questioned by the probation officer after having been taken into custody. The exact circumstances of this questioning do not appear but any admissions Gerald may have made at this time do not appear in the record. [74] Gerald was also questioned by the Juvenile Court Judge at each of the two hearings. The judge testified in the habeas corpus proceeding that Gerald admitted making some of the lewd statements. . . [but not] any of the more serious lewd statements. There was conflict and uncertainty among the witnesses at the habeas corpus proceeding—the Juvenile Court Judge, Mr. and Mrs. Gault, and the probation officer—as to what Gerald did or did not admit. We shall assume that Gerald made admissions of the sort described by the Juvenile Court Judge, as quoted above. Neither Gerald nor his parents were advised that he did not have to testify or make a statement, or that an incriminating statement might result in his commitment as a delinquent. The Arizona Supreme Court rejected appellants' contention that Gerald had a right to be advised that he need not incriminate himself. It said: We think the necessary flexibility for individualized treatment will be enhanced by a rule which does not require the judge to advise the infant of a privilege against self-incrimination. In reviewing this conclusion of Arizona's Supreme Court, we emphasize again that we are here concerned only with a proceeding to determine whether a minor is a delinquent and which may result in commitment to a state institution. Specifically, the question is whether, in such a proceeding, an admission by the juvenile may be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent. In light of Miranda v. Arizona, 384 U. S. 436 (1966), we must also consider whether, if the privilege against self-incrimination is available, it can effectively be waived unless counsel is present or the right to counsel has been waived. It has long been recognized that the eliciting and use of confessions or admissions require careful scrutiny. Dean Wigmore states: The ground of distrust of confessions made in certain situations is, in a rough and indefinite way, judicial experience. There has been no careful collection of statistics of untrue confessions, nor has any great number of instances been even loosely reported . . . but enough have been verified to fortify the conclusion, based on ordinary observation of human conduct, that under certain stresses a person, especially one of defective mentality or peculiar temperament, may falsely acknowledge guilt. This possibility arises wherever the innocent person is placed in such a situation that the untrue acknowledgment of guilt is at the time the more promising of two alternatives between which he is obliged to choose; that is, he chooses any risk that may be in falsely acknowledging guilt, in preference to some worse alternative associated with silence. ..... The principle, then, upon which a confession may be excluded is that it is, under certain conditions, testimonially untrustworthy . . . . [T]he essential feature is that the principle of exclusion is a testimonial one, analogous to the other principles which exclude narrations as untrustworthy . . . . [75] This Court has emphasized that admissions and confessions of juveniles require special caution. In Haley v. Ohio, 332 U. S. 596, where this Court reversed the conviction of a 15-year-old boy for murder, MR. JUSTICE DOUGLAS said: What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a. m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning. [76] In Haley, as we have discussed, the boy was convicted in an adult court, and not a juvenile court. In notable decisions, the New York Court of Appeals and the Supreme Court of New Jersey have recently considered decisions of Juvenile Courts in which boys have been adjudged delinquent on the basis of confessions obtained in circumstances comparable to those in Haley. In both instances, the State contended before its highest tribunal that constitutional requirements governing inculpatory statements applicable in adult courts do not apply to juvenile proceedings. In each case, the State's contention was rejected, and the juvenile court's determination of delinquency was set aside on the grounds of inadmissibility of the confession. In the Matters of Gregory W. and Gerald S., 19 N. Y. 2d 55, 224 N. E. 2d 102 (1966) (opinion by Keating, J.), and In the Interests of Carlo and Stasilowicz, 48 N. J. 224, 225 A. 2d 110 (1966) (opinion by Proctor, J.). The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth. The roots of the privilege are, however, far deeper. They tap the basic stream of religious and political principle because the privilege reflects the limits of the individual's attornment to the state and—in a philosophical sense— insists upon the equality of the individual and the state. [77] In other words, the privilege has a broader and deeper thrust than the rule which prevents the use of confessions which are the product of coercion because coercion is thought to carry with it the danger of unreliability. One of its purposes is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction. [78] It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. As MR. JUSTICE WHITE, concurring, stated in Murphy v. Waterfront Commission, 378 U. S. 52, 94 (1964): The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory . . . it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.  [79] (Emphasis added.) With respect to juveniles, both common observation and expert opinion emphasize that the distrust of confessions made in certain situations to which Dean Wigmore referred in the passage quoted supra, at 44-45, is imperative in the case of children from an early age through adolescence. In New York, for example, the recently enacted Family Court Act provides that the juvenile and his parents must be advised at the start of the hearing of his right to remain silent. [80] The New York statute also provides that the police must attempt to communicate with the juvenile's parents before questioning him, [81] and that absent special circumstances a confession may not be obtained from a child prior to notifying his parents or relatives and releasing the child either to them or to the Family Court. [82] In In the Matters of Gregory W. and Gerald S., referred to above, the New York Court of Appeals held that the privilege against self-incrimination applies in juvenile delinquency cases and requires the exclusion of involuntary confessions, and that People v. Lewis, 260 N. Y. 171, 183 N. E. 353 (1932), holding the contrary, had been specifically overruled by statute. The authoritative Standards for Juvenile and Family Courts concludes that, Whether or not transfer to the criminal court is a possibility, certain procedures should always be followed. Before being interviewed [by the police], the child and his parents should be informed of his right to have legal counsel present and to refuse to answer questions or be fingerprinted [83] if he should so decide. [84] Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are civil and not criminal, and therefore the privilege should not apply. It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person shall be compelled in any criminal case to be a witness against himself. However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory. [85] It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to criminal involvement. In the first place, juvenile proceedings to determine delinquency, which may lead to commitment to a state institution, must be regarded as criminal for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the civil label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult criminals. In those States juveniles may be placed in or transferred to adult penal institutions [86] after having been found delinquent by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one's will, whether it is called criminal or civil. And our Constitution guarantees that no person shall be compelled to be a witness against himself when he is threatened with deprivation of his liberty—a command which this Court has broadly applied and generously implemented in accordance with the teaching of the history of the privilege and its great office in mankind's battle for freedom. [87] In addition, apart from the equivalence for this purpose of exposure to commitment as a juvenile delinquent and exposure to imprisonment as an adult offender, the fact of the matter is that there is little or no assurance in Arizona, as in most if not all of the States, that a juvenile apprehended and interrogated by the police or even by the Juvenile Court itself will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody. In Arizona, as in other States, provision is made for Juvenile Courts to relinquish or waive jurisdiction to the ordinary criminal courts. [88] In the present case, when Gerald Gault was interrogated concerning violation of a section of the Arizona Criminal Code, it could not be certain that the Juvenile Court Judge would decide to suspend criminal prosecution in court for adults by proceeding to an adjudication in Juvenile Court. [89] It is also urged, as the Supreme Court of Arizona here asserted, that the juvenile and presumably his parents should not be advised of the juvenile's right to silence because confession is good for the child as the commencement of the assumed therapy of the juvenile court process, and he should be encouraged to assume an attitude of trust and confidence toward the officials of the juvenile process. This proposition has been subjected to widespread challenge on the basis of current reappraisals of the rhetoric and realities of the handling of juvenile offenders. In fact, evidence is accumulating that confessions by juveniles do not aid in individualized treatment, as the court below put it, and that compelling the child to answer questions, without warning or advice as to his right to remain silent, does not serve this or any other good purpose. In light of the observations of Wheeler and Cottrell, [90] and others, it seems probable that where children are induced to confess by paternal urgings on the part of officials and the confession is then followed by disciplinary action, the child's reaction is likely to be hostile and adverse—the child may well feel that he has been led or tricked into confession and that despite his confession, he is being punished. [91] Further, authoritative opinion has cast formidable doubt upon the reliability and trustworthiness of confessions by children. This Court's observations in Haley v. Ohio are set forth above. The recent decision of the New York Court of Appeals referred to above, In the Matters of Gregory W. and Gerald S., deals with a dramatic and, it is to be hoped, extreme example. Two 12-year-old Negro boys were taken into custody for the brutal assault and rape of two aged domestics, one of whom died as the result of the attack. One of the boys was schizophrenic and had been locked in the security ward of a mental institution at the time of the attacks. By a process that may best be described as bizarre, his confession was obtained by the police. A psychiatrist testified that the boy would admit whatever he thought was expected so that he could get out of the immediate situation. The other 12-year-old also confessed. Both confessions were in specific detail, albeit they contained various inconsistencies. The Court of Appeals, in an opinion by Keating, J., concluded that the confessions were products of the will of the police instead of the boys. The confessions were therefore held involuntary and the order of the Appellate Division affirming the order of the Family Court adjudging the defendants to be juvenile delinquents was reversed. A similar and equally instructive case has recently been decided by the Supreme Court of New Jersey. In the Interests of Carlo and Stasilowicz, supra . The body of a 10-year-old girl was found. She had been strangled. Neighborhood boys who knew the girl were questioned. The two appellants, aged 13 and 15, confessed to the police, with vivid detail and some inconsistencies. At the Juvenile Court hearing, both denied any complicity in the killing. They testified that their confessions were the product of fear and fatigue due to extensive police grilling. The Juvenile Court Judge found that the confessions were voluntary and admissible. On appeal, in an extensive opinion by Proctor, J., the Supreme Court of New Jersey reversed. It rejected the State's argument that the constitutional safeguard of voluntariness governing the use of confessions does not apply in proceedings before the Juvenile Court. It pointed out that under New Jersey court rules, juveniles under the age of 16 accused of committing a homicide are tried in a proceeding which has all of the appurtenances of a criminal trial, including participation by the county prosecutor, and requirements that the juvenile be provided with counsel, that a stenographic record be made, etc. It also pointed out that under New Jersey law, the confinement of the boys after reaching age 21 could be extended until they had served the maximum sentence which could have been imposed on an adult for such a homicide, here found to be second-degree murder carrying up to 30 years' imprisonment. [92] The court concluded that the confessions were involuntary, stressing that the boys, contrary to statute, were placed in the police station and there interrogated; [93] that the parents of both boys were not allowed to see them while they were being interrogated; [94] that inconsistencies appeared among the various statements of the boys and with the objective evidence of the crime; and that there were protracted periods of questioning. The court noted the State's contention that both boys were advised of their constitutional rights before they made their statements, but it held that this should not be given significant weight in our determination of voluntariness. [95] Accordingly, the judgment of the Juvenile Court was reversed. In a recent case before the Juvenile Court of the District of Columbia, Judge Ketcham rejected the proffer of evidence as to oral statements made at police headquarters by four juveniles who had been taken into custody for alleged involvement in an assault and attempted robbery. In the Matter of Four Youths, Nos. 28-776-J, 28-778-J, 28-783-J, 28-859-J, Juvenile Court of the District of Columbia, April 7, 1961. The court explicitly stated that it did not rest its decision on a showing that the statements were involuntary, but because they were untrustworthy. Judge Ketcham said: Simply stated, the Court's decision in this case rests upon the considered opinion—after nearly four busy years on the Juvenile Court bench during which the testimony of thousands of such juveniles has been heard—that the statements of adolescents under 18 years of age who are arrested and charged with violations of law are frequently untrustworthy and often distort the truth. We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. [96] The confession of Gerald Gault was first obtained by Officer Flagg, out of the presence of Gerald's parents, without counsel and without advising him of his right to silence, as far as appears. The judgment of the Juvenile Court was stated by the judge to be based on Gerald's admissions in court. Neither admission was reduced to writing and, to say the least, the process by which the admissions were obtained and received must be characterized as lacking the certainty and order which are required of proceedings of such formidable consequences. [97] Apart from the admissions, there was nothing upon which a judgment or finding might be based. There was no sworn testimony. Mrs. Cook, the complainant, was not present. The Arizona Supreme Court held that sworn testimony must be required of all witnesses including police officers, probation officers and others who are part of or officially related to the juvenile court structure. We hold that this is not enough. No reason is suggested or appears for a different rule in respect of sworn testimony in juvenile courts than in adult tribunals. Absent a valid confession adequate to support the determination of the Juvenile Court, confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of delinquency and an order committing Gerald to a state institution for a maximum of six years. The recommendations in the Children's Bureau's Standards for Juvenile and Family Courts are in general accord with our conclusions. They state that testimony should be under oath and that only competent, material and relevant evidence under rules applicable to civil cases should be admitted in evidence. [98] The New York Family Court Act contains a similar provision. [99] As we said in Kent v. United States, 383 U. S. 541, 554 (1966), with respect to waiver proceedings, there is no place in our system of law for reaching a result of such tremendous consequences without ceremony . . . . We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements.","confrontation, self-incrimination, cross-examination."
+637,107439,1,6,"Appellants urge that the Arizona statute is unconstitutional under the Due Process Clause because, as construed by its Supreme Court, there is no right of appeal from a juvenile court order . . . . The court held that there is no right to a transcript because there is no right to appeal and because the proceedings are confidential and any record must be destroyed after a prescribed period of time. [100] Whether a transcript or other recording is made, it held, is a matter for the discretion of the juvenile court. This Court has not held that a State is required by the Federal Constitution to provide appellate courts or a right to appellate review at all. [101] In view of the fact that we must reverse the Supreme Court of Arizona's affirmance of the dismissal of the writ of habeas corpus for other reasons, we need not rule on this question in the present case or upon the failure to provide a transcript or recording of the hearings—or, indeed, the failure of the Juvenile Judge to state the grounds for his conclusion. Cf. Kent v. United States, supra, at 561, where we said, in the context of a decision of the juvenile court waiving jurisdiction to the adult court, which by local law, was permissible: . . . it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. As the present case illustrates, the consequences of failure to provide an appeal, to record the proceedings, or to make findings or state the grounds for the juvenile court's conclusion may be to throw a burden upon the machinery for habeas corpus, to saddle the reviewing process with the burden of attempting to reconstruct a record, and to impose upon the Juvenile Judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him. [102] For the reasons stated, the judgment of the Supreme Court of Arizona is reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.",appellate review and transcript of proceedings.
+638,111462,1,3,Affirmed. JUSTICE POWELL took no part in the decision of this case. JUSTICE O'CONNOR took no part in the consideration or decision of this case.,The judgment of the Court of Appeals is
+639,109531,2,1,"2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 13, 43. 3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents. [7] Id., at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by § 12P. App. 13, 43. 4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. Ibid. The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth. Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated. [8] App. 24. On November 13, appellants filed a Motion to dismiss and/or for summary judgment, arguing, inter alia, that the District Court should abstain from deciding any issue in this case. Id., at 23. In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that § 12P, particularly in view of its judicial-review provision, was susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question. Record Doc. 5, p. 12. They cited Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941), and Lake Carriers' Assn. v. MacMullan, 406 U. S. 498, 510-511 (1972), for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained. The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, 1975, the three-judge District Court, by a divided vote, handed down a decision holding § 12P unconstitutional and void. 393 F. Supp. 847. An order was entered declaring § 12P and such other portions of the chapter [112] insofar as they make specific reference thereto void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34. The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed classes, 393 F. Supp., at 850-852, [9] and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, id., at 849-850. It found that a substantial number of females under the age of 18 are capable of forming a valid consent, and viewed the overall question as whether the state can be permitted to restrain the free exercise of that consent, to the extent that it has endeavored to do so. Id., at 855. In regard to the meaning of § 12P, the majority made the following comments: 1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it. 2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute's provision calling for the minor's own consent recognizes that at least some minors can consent, but the minor's consent must be supplemented in every case, either by the consent of both parents, or by a court order. ..... 4. The statute does not purport simply to provide a check on the validity of the minor's consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests. 393 F. Supp., at 855. The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation. Id., at 855 n. 10. The parents not only must be consulted, they are given a veto. Id., at 856. The majority observed that  `neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967, 387 U. S. 1, 13, ibid., and, accordingly, held that the State cannot control a minor's abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that the statute is cast not in terms of protecting the minor . . . but in recognizing independent rights of parents, the majority concluded that [t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own? Ibid. The majority found that in the instant situation, unlike others, the parents' interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central Missouri v. Danforth, 392 F. Supp. 1362 (ED Mo. 1975), see ante, p. 52, concluded: But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child's, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected. 393 F. Supp., at 857. The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, have been deprived of their legal rights without due process of law, ibid., that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Id., at 857-865. Most important, however, the dissent's view of the statute differed markedly from the interpretation adopted by the majority. The dissent stated: I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents[[]] ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents' refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion. Id., at 864. The indicated footnote reads: The majority speculate concerning possible interpretations of the `for good cause shown' language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute. Id., at 864 n. 15. Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central Missouri v. Danforth, ante, p. 52, and its companion cross-appeal. 423 U. S. 982 (1975).","William Baird, a citizen of New York."
+640,86533,1,1,"1. The loan of its bills by the bank to McQueen & McKay was on an express agreement for credit; which agreement, if procured by fraud, was not void, but voidable, by the bank at its option. Chitty on Cont. 678; Story on Sales, §§ 420, 447, and cases cited; Galloway v. Holmes, 1 Doug. (Mich.) 336; Rowley v. Bigelow, 12 Pick. 307. 2. There being an express contract for a loan on time, if the bank elected to consider it fraudulent and to sue immediately, the action should have been in tort. Story on Sales, §§ 432, 434, 442, 446, and cases cited there; Jones v. Hoar, 5 Pick. 285; Willett v. Willett, 3 Watts, 277; Cary v. Curtis, 3 Howard, 247, 248. 3. The remedy by foreign attachment in Indiana is confined to cases of debts due on contract and shown by affidavit; and the institution of such a suit was an affirmance of the contract of loan; and, inasmuch as the stipulated term of credit had not expired, the action was prematurely brought. Code of Indiana of 1843, pp. 762, 763, 772, 773; Lindon v. Hooper, Cowp. 418; Ferguson v. Carrington, 3 Carr. & Payne, 457, at Nisi Prius; same case in Bench, 9 Barn. & Cres. 59. This case is cited as law by Starkie, 2 Ev. 55; 1 Chitty on Pl. 157; 1 Com. on Cont. 221; Dutton v. Solomonson, 3 Bos. & Pul. 585; 15 Mass. 80, note a; Galloway v. Holmes, 1 Doug. (Mich.) 334. In the present case, the question is not whether the bank had a right to disaffirm; but whether, by bringing this action, she did not in fact affirm the express contract. The authorities cited show the general doctrine of the common law to be, that promises in law exist only in the absence of promises in fact; that where there is an express contract, suing in assumpsit is an affirmance of it; that in those cases in which it has been held that assumpsit would lie immediately on discovery of the fraud, there was a debt due, in prœsenti, either by an express precedent contract, or by the absence of any agreement for credit; or the contract was incapable of confirmation and absolutely void, through illegality, or as being contrary to public policy. It is further contended, that the attachment of the pork and flour, as the property of McQueen & McKay, was an affirmance of the contract with them. Campbell v. Fleming, 1 Adolph. & Ell. 40; Selway v. Fogg, 5 Mees. & Wels. 86; Thompson v. Morris, 2 Murphy, 248; Dingley v. Robinson, 5 Greenl. 127; Hanna v. Mills, 21 Wend. 90; Ibid. 175. A party cannot claim in repugnant rights, and is concluded by the form of his action. Smith v. Hodson, 4 Term Rep. 217. 4. The retention of the bills of exchange, given by McQueen & McKay, as well as the form of the action, was an affirmance of the contract of loan. Tobey v. Barber, 5 Johns. 72; Dayton v. Trull, 23 Wend. 346; Thomas v. Todd, 6 Hill, 341; Masson v. Bovet, 1 Denio, 74; Story on Sales, § 427. II. The bank, under her attachment, had no right, as against Gibson, to claim the pork and flour as the specific proceeds of her bills, on the ground of the alleged fraud of McQueen & McKay in procuring them. Because, — 1. She attached it as the property of McQueen & McKay, and for the benefit of their general creditors. If trover had been brought, the alleged fraud would have been disputed. 2. Having voluntarily parted with the possession and ostensible ownership of her bills, she cannot claim them or their avails from a bonâ fide purchaser. Parker v. Patrick, 5 Term Rep. 175; Mowrey v. Walsh, 8 Cowen, 238; Root v. French, 13 Wend. 572; Hoffman v. Noble, 6 Metcalf, 68; Story on Sales, § 200, and cases cited there. III. The flour in the custody of Hanna, Hamilton, & Co., and the pork in the hands of D. & J.A.F. Nichols, were the legal property of McQueen & McKay, at the time of the transfer thereof by them to Gibson, the plaintiff, and said McQueen & McKay held, at the time of the attachment, the beneficial interest only in the residue of the proceeds of sale thereof, to be made by Gibson, when the property reached him, after satisfying his advance thereon, with commissions and all other charges. IV. McQueen & McKay acquired a vested legal title in said pork and flour, by their purchases. The bills of sale being their muniments of title, also a constructive possession thereof, the property remaining in the custody of the respective vendors, as their bailees. Because, — 1. The sale was a perfect vested sale, and not an executory agreement to sell at a future period. Martindale v. Smith, 1 Adolph. & Ell. (N.S.) 389 (41 Cond. Com. Law, 595). 2. The bills of sale purport to pass a present vested interest, and they were delivered to McQueen & McKay. The payment of the purchase-money bound the bargain, and passed at once the legal title to them. Barret v. Goddard, 3 Mason, 110. 3. Whenever there is a present vested sale, valid in law, and the property sold is left with the vendor, he holds it in custody as bailee for the purchaser. Elmore v. Stone, 1 Taunton, 157; Bailey v. Ogdens, 3 Johns. 416; Dixon v. Yates, 5 Barn. & Adolph. 314. 4. The pork and flour were sufficiently identified and distinguishable from all other property, there being no other pork in the warehouse, and the flour being marked. Barret v. Goddard, 3 Mason, 107; Pleasants v. Pendleton, 6 Rand. 473; Swanwick v. Southern, 9 Adolph. & Ell. 895. 5. This construction is confirmed by the condition of the property at the time, and the general, well-established usage of trade in regard to it; which usage is to leave such produce in the warehouse till the opening of navigation, the warehouseman being in the mean time the bailee of the owner; and for the owner to get an advance thereon from the Eastern merchant, and to transfer the same to secure the advance: he to sell the same on commission. 6. The delivery on board of canal-boats provided for, was a delivery as bailee for the purpose of transmission. The guarantee of inspection at Toledo was a warranty of quality, to be tested after sale, and it was not preliminary to the sale. V. McQueen & McKay passed the entire legal title in said produce to the plaintiff, together with the beneficial interest, to the extent of his advance thereon, and gave him the constructive possession. Because, — 1. The condition of said produce was such as not to admit of actual delivery at the time, and it was in accordance with the course of business and the usage of trade to leave it with the warehouseman in the West. 2. The delivery order, according to the weight of authority, was sufficient of itself to pass the title to Gibson, on making the advance, before its presentment and acceptance. 3. But if not, the delivery to Gibson of the muniments of title, viz. the bills of sale, was sufficient for that purpose, especially when accompanied with a delivery order. Hollingsworth v. Napier, 3 Caines, 182; Wilkes v. Ferris, 5 Johns. 338; Bailey v. Johnson, 9 Cowen, 115; Lucas v. Dorrien, 7 Taunt. 279; Greaves v. Hepke, 2 Barn. & Ald. 131; Pleasants v. Pendleton, 6 Rand. 473; Ricker v. Cross, 5 N. Hamp. 571; Ingraham v. Wheeler, 6 Conn. 277; Atkinson v. Maling, 2 Term Rep. 465; Brown v. Heathcote, 1 Atk. 162; Gardner v. Howland, 2 Pick. 599; Story on Sales, § 311; 2 Kent, 500. 4. It was sufficient for the plaintiff to give notice of his purchases in a reasonable time to the respective bailees of the property, so as to exempt himself from the imputation of laches; which notice was given in this case. Putnam v. Dutch, 8 Mass. 290; Meeker v. Wilson, 1 Gall. 419; 5 N. Hamp. 571; 6 Conn. 277. 5. The effect of the whole was to give the plaintiff the legal title in the produce, and not a mere lien thereon, or a mere pledge of the property; and this is the effect whether the transfer be governed by the law of New York (which is properly applicable to it) or by the law of Indiana. Story on Conflict of Laws, §§ 316 to 325; Black v. Zacharie, 3 Howard, 512. VI. If Gibson be considered as not having the entire legal title, but as a pledgee to the amount of his advances, he is pro tanto to be considered and protected as a purchaser. Story on Bailments, § 297; Story on Agency, § 361; Lickbarrow v. Mason, 2 Term Rep. 63; Root v. French, 13 Wend. 572; Holbrook v. Wight, 24 Wend. 169; Hoffman v. Noble, 6 Metc. 69; Story on Agency, § 111. VII. The legal title of the plaintiff in said produce is not superseded or divested by the levy of the attachment on the property. Because, — 1. The bank was not a bonâ fide purchaser. The attachment amounted only to an assignment in invitum by operation of law, and for the benefit of the creditors at large, as well as for the attaching creditor. Indiana Code, 1843, pp. 762-775; Lempriere v. Pasley, 2 Term Rep. 485; 1 Atk. 160; Nathan v. Giles, 5 Taunton, 558; United States v. Vaughan, 3 Bin. 394; Ingraham v. Wheeler, 6 Conn. 277; Ricker v. Cross, 5 N. Hamp. 571; Portland Bank v. Stacey, 4 Mass. 663; Putnam v. Dutch, 8 Mass. 287; Badlam v. Tucker, 1 Pick. 389; Gardner v. Howland, 2 Pick. 604; Arnold v. Brown, 24 Pick. 95; note to Lanfear v. Sumner, 17 Mass. 114. 2. If the bank had been a bonâ fide purchaser of said produce of McQueen & McKay, instead of being attaching creditors, such purchase would not divest the plaintiff of his title, which is a legal title, with a constructive possession, fairly acquired and unaccompanied with any laches in notifying the bailee thereof, or in reducing the same to actual possession, according to the course of trade; such a legal title, being prior in time, is prior in right. See cases cited under last proposition; also Caldwell v. Ball, 1 Term Rep. 205; Tuxworth v. Moore, 9 Pick. 348; Joy v. Sears, 9 Pick. 4; Turner v. Coolidge, 2 Metc. 351; 3 Mason, 114; Meeker v. Wilson, 1 Gall. 422; Phillemore v. Barry, 1 Camp. 563. The cases do not turn on the question of notice to an attaching creditor, but whether there has been such a delay in taking actual possession as to furnish evidence of fraud. 3. If the attachment had the character of a purchase, it would not be bonâ fide and without notice, within the reason of the rule, because McQueen & McKay were out of possession, actual or constructive, which put the purchaser upon inquiry, and amounted to constructive notice of the prior legal transfer to the plaintiff. Lucas v. Dorrien, 7 Taunt. 278; 1 Gall. 422. 4. The bank, therefore, under the circumstances, took only the interest of McQueen & McKay then existing, and subject to all equitable, as well as legal, interests then outstanding against it. VIII. The only interest of McQueen & McKay was the equitable beneficial interest in the residue of the proceeds of the produce when sold by the plaintiff on the consignment to him, after satisfying thereout his advances and charges on sales, which alone was attachable, and which did not warrant the officer in taking the property. Story on Bailments, § 353, and cases cited; Badlam v. Tucker, 1 Pick. 399; Indiana Code, § 383, p. 744, and § 39, p. 770; Evans v. Darlington, 5 Blackf. 320. IX. The rights of the plaintiff are not weakened by his having purchased the property out of the State of Indiana, to be sent and sold in New York, according to the course of trade. Blake v. Williams, 6 Pick. 307-314; Black v. Zacharie, 3 Howard, 514. X. If there had been any danger that the plaintiff would have absconded with the property, to the injury of the equitable lien of the bank and other creditors, acquired by the attachment, (which is not shown or pretended,) their remedy would then have been in equity only. IX. The warehouse receipt accompanying the transfer to Gibson was equivalent, under the usage of trade, to a bill of lading, and its transfer divested all outstanding title unknown to Gibson, whether legal or equitable. Because, — 1. Such instruments are assignable. Indiana Code, p. 576; Laws of New York of 1830, p. 203, § 5; 2 Rev. Stat. p. 60. 2. The case states that it was usual and customary to make advances on the assignment of proper evidences of title. Noble v. Kennoway, 1 Doug. 512; Zwinger v. Samuda, 7 Taunt. 265; Lucas v. Dorrien, Ibid. 288; Barton v. Baddington, 1 Car. & Payne, 207; Keyser v. Suse, Gow, 58. The argument filed on behalf of the defendant in error was an elaborate support of the following points: — 1. If Gibson's claim be in the nature of a lien, he cannot recover, unless he, or his agent for the purpose expressly authorized, had the actual possession of the pork and flour before the attachment was levied. Under the circumstances of this case, a constructive possession cannot be conferred, for the following reasons: — 1. Because the bills of parcels, &c., in this cause, do not amount to warehouse receipts; for instance, the memorandum of Hanna, Hamilton, & Co. is a mere receipted bill of parcels, and a guarantee of the inspection of the pork at Toledo; it does not even acknowledge the pork to be in store. Should the pork and flour not pass inspection, McQueen & McKay would not be bound to accept them. The bills of parcels, with their indorsements, &c., amount to nothing more than mere orders to deliver the pork and flour to Gibson; and until the Nicholses, and Hanna, Hamilton, & Co., were presented with such orders, and they had accepted the same, and assented to hold the pork and flour for Gibson, as his agents, his lien could not attach; and the attachment having been sued out, and levied on the pork and flour in question before they received orders in favor of Gibson, the attaching lien of the State Bank must prevail. 2. Although the memoranda may be considered as warehouse receipts, yet, there being no legislative enactment or usage in New York making the transfer and delivery thereof to confer a constructive possession of the pork and flour, their transfer and delivery to Gibson cannot have that effect. 3. Although, by the laws of New York, these memoranda might confer a constructive possession on Gibson, yet, as the pork and flour were, at the time of the delivery of those memoranda to Gibson, at Fort Wayne, in Indiana, the transaction must be governed by the laws of Indiana. In Indiana we have no law, or usage, giving such force to warehouse receipts. 2. Although Gibson should be regarded as an absolute purchaser, yet, as the attachment was levied upon the pork and flour before he or any agent of his had actual possession of them, Gibson cannot recover. A fortiori if Gibson's claim be only a lien. 3. If the pork and flour be regarded as a security to Gibson, for the repayment of the advance, nevertheless, as neither Gibson nor any agent of his had the actual possession of the pork and flour before they were attached, nor had the instruments by which his lien on the pork and flour was created been recorded in Allen county, Indiana, (the place where the pork and flour were,) within ten days, according to the Rev. Stat. of Indiana, 1843, p. 590, sec. 10, such assignment to Gibson is void as to the State Bank. 4. Whether Gibson's right be regarded as a lien on, or a purchase of, the pork and flour, still, as neither Gibson nor any agent of his, had the actual possession thereof, before the attachment was levied, Gibson cannot recover. 5. If Gibson be regarded a deemed pro tanto purchaser, McQueen & McKay must be regarded as owners of the residue. This condition of things necessarily makes Gibson and McQueen & McKay tenants in common of the pork and flour. If this be true, (which we regard as unquestionable, if Gibson be a pro tanto purchaser,) the interest of McQueen & McKay in the pork and flour is attachable, and the officer attaching can, by virtue of the attachment, take the whole of the pork and flour, even out of the actual possession of Gibson, and deliver it over to the purchaser, and Gibson cannot replevy them from the officer or the purchaser under the attachment. 6. If Gibson's right be only a lien, although such lien may have attached on the pork and flour before the attachment of the State Bank was levied thereon, nevertheless the interest of McQueen & McKay therein is attachable.","The attachment was prematurely brought. Because,"
+641,109098,2,2,"In February 1971, Marine, NBC, and WTB agreed to merge the latter into NBC. NBC, as the surviving bank, would operate all eight banking offices of WTB as branches of NBC. In March 1971, NBC and WTB applied to the Comptroller of the Currency pursuant to the Bank Merger Act of 1966 for approval of the merger. [9] As required by that Act, see 12 U. S. C. ง 1828 (c) (4), the Comptroller requested reports on the competitive factors involved from the Attorney General, the Federal Deposit Insurance Corporation, and the Board of Governors of the Federal Reserve System. Each of these agencies submitted a negative report on the competitive effects of the merger. The Attorney General relied on the reasons advanced in the instant case. The latter two agencies based their conclusions primarily on the degree of concentration in commercial banking in Washington as a whole. The Comptroller approved the merger in a report issued September 24, 1971. He concluded that state law precluded NBC from branching in Spokane and effectively prevented NBC from causing a new Spokane bank to be formed which could later be treated as a merger partner. He noted that state law prevented the only independent small bank with offices located within the city boundaries of Spokane from merging with NBC, since that bank was state chartered, had been founded in 1965, and was subject to the minimum 10-year restriction against sale of a new bank set out in Wash. Rev. Code Ann. ง 30.08.020 (7) (1961 and Supp. 1973). The Comptroller relied heavily on the view that the merger would contribute to the convenience and needs of bank customers in Spokane by bringing to them services not previously provided by WTB. Acting within the 30-day limitation period set out in the Bank Merger Act of 1966, 12 U. S. C. ง 1828 (c) (7), the United States then commenced this action in the United States District Court for the Western District of Washington, challenging the legality of the merger under ง 7 of the Clayton Act. [10] As a result, the merger was automatically stayed. 12 U. S. C. ง 1828 (c) (7) (A). Pursuant to 12 U. S. C. ง 1828 (c) (7) (D), the Comptroller intervened in support of the merger as a party defendant. Prior to trial the United States dropped all allegations concerning actual competition between the merger partners. [11] The remainder of the complaint addressed the subject of potential competition. The United States sought to establish that the merger may . . . substantially. . . lessen competition within the meaning of ง 7 in three ways: by eliminating the prospect that NBC, absent acquisition of the market share represented by WTB, would enter Spokane de novo or through acquisition of a smaller bank and thus would assist in deconcentrating that market over the long run; by ending present procompetitive effects allegedly produced in Spokane by NBC's perceived presence on the fringe of the Spokane market; and by terminating the alleged probability that WTB as an independent entity would develop through internal growth or through mergers with other medium-size banks into a regional or ultimately statewide counterweight to the market power of the State's largest banks. The Government's first theoryโ€”alleged likelihood of de novo or foothold entry by NBC if the challenged merger were blockedโ€”was the primary basis upon which this case was presented to the District Court. [12] At the close of final oral argument following a week-long trial, the District Judge ruled for the defendants from the bench. Two weeks later he adopted without change the defendants' proposed findings of facts and conclusions of law, the latter consisting of seven sentences. 1973-1 Trade Cas. ถ 74,496, p. 94,244 (1973). [13] The court found that the merger would substantially increase competition in commercial banking in the Spokane metropolitan area and would have no inherent anticompetitive effect . . . . Ibid. In light of the legal and economic barriers to any other method of entry, the court further found no reasonable probability that, absent the challenged merger, NBC would enter the Spokane market in the reasonably foreseeable future. Id., at 94,245. According to the District Court, Washington law forbade NBC from establishing de novo branches in Spokane, and the Government had failed to establish that there was any existing bank in Spokane other than WTB available for acquisition by NBC on any reasonably acceptable basis at any time in the foreseeable future, or at all. Ibid. Moreover, any attempt by NBC to enter de novo by assisting in the formation of and then acquiring a newly chartered bank in Spokane even if it could be legally accomplished, [14] or to undertake a foothold acquisition, would not be economically feasible. Ibid. In addition to noting the past and projected slow growth of the Spokane area, the court found that the ability to branch in a metropolitan area was essential to effective competition in the banking business. Ibid. Under state law, NBC would be unable to open new branch offices in Spokane if it made a foothold acquisition or helped form and then acquired a new bank. These and other factors rendered negative the prospects for growth of a foothold acquisition or of a sponsored bank started from scratch. Ibid. This was confirmed by the experience of another large banking organization not based in Spokane that had entered the city through a foothold acquisition in 1964 and subsequently had been unable to expand the market share of the acquired bank. Id., at 94, 245-94,246. The court found no perceptible procompetitive effect deriving from NBC's premerger presence on the fringe of the Spokane market. Id., at 94,246. It also held that the Government had failed to carry its burden of proving a reasonable probability that WTB, absent the merger, would expand beyond the Spokane market by de novo growth or through combination with another medium-size bank. Ibid. It found no probability that NBC would be entrenched as a dominant bank in the Spokane metropolitan area as a result of the merger, and it could find no likelihood that the merger would trigger a series of defensive mergers by other banks in the State. Id., at 94,246-94,247. [15] On the basis of its findings, the District Court dismissed the Government's complaint. The Government thereupon brought this direct appeal under the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. ง 29. We noted probable jurisdiction. 414 U. S. 907 (1973).",The Proceedings.
+642,109098,1,2,"Determination of the relevant product and geographic markets is a necessary predicate to deciding whether a merger contravenes the Clayton Act. United States v. Du Pont & Co., 353 U. S. 586, 593 (1957); Brown Shoe Co. v. United States, 370 U. S. 294, 324 (1962). The District Court found that the relevant product market within which the competitive effect of the merger is to be judged is the business of commercial banking (and the cluster of products and services denoted thereby). . . . 1973-1 Trade Cas. ถ 74,496, p. 94,243. The parties do not dispute this finding, and in any event it is in full accord with our precedents. [16] The District Court found that the relevant geographic market is the Spokane metropolitan area, consisting of the City of Spokane and the populated areas immediately adjacent thereto, including the area extending easterly through the suburb of Opportunity toward the Idaho border . . . . Id., at 94,244. This area extends approximately five miles to the west and south and 10 miles to the north and east of the center of the city. It is wholly within and considerably smaller than Spokane County and is surrounded by a sparsely populated region, with no nearby major metropolitan centers. It contains all eight of the target bank's offices. On the basis of the record, we have no reason to doubt that it constitutes a reasonable approximation of the localized banking market in which Spokane banks offer the major part of their services and to which local consumers can practicably turn for alternatives. E. g., United States v. Phillipsburg National Bank, 399 U. S. 350, 362-365 (1970). It is also the area where the effect of the merger on competition will be direct and immediate . . . , which as this Court has held is the appropriate section of the country for purposes of ง 7. United States v. Philadelphia National Bank, 374 U. S. 321, 357 (1963). Accordingly, we affirm the District Court's holding that the Spokane metropolitan area is the appropriate geographic market for determining the legality of the merger. Prior to trial the Government stipulated that the Spokane area is a relevant geographic market in the instant case, and there is no dispute that it is the only banking market in which WTB is a significant participant. Nevertheless, the Government contends that the entire State is also an appropriate section of the country in this case. It is conceded that the State is not a banking market. But the Government asserts that the State is an economically differentiated region, because its boundaries delineate an area within which Washington banks are insulated from most forms of competition by out-of-state banking organizations. The Government further argues that this merger, and others it allegedly will trigger, may lead eventually to the domination of all banking in the State by a few large banks, facing each other in a network of local, oligopolistic banking markets. This assumed eventual statewide linkage of local markets, it is argued, will enhance statewide the possibility of parallel, standardized, anticompetitive behavior. This concern for the possible statewide consequences of geographic market extension mergers by commercial banks appears to be an important reason for the Government's recent efforts to block such mergers through an application of the potential-competition doctrine under ง 7. [17] The Government's proposed reading of the any section of the country phrase of ง 7 is at variance with this Court's ง 7 cases, and we reject it. Without exception the Court has treated section of the country and relevant geographic market as identical, [18] and it has defined the latter concept as the area in which the goods or services at issue are marketed to a significant degree by the acquired firm. E. g., Philadelphia National Bank, supra, at 357-362. [19] In cases in which the acquired firm markets its products or services on a local, regional, and national basis, the Court has acknowledged the existence of more than one relevant geographic market. [20] But in no previous ง 7 case has the Court determined the legality of a merger by measuring its effects on areas where the acquired firm is not a direct competitor. In urging that the legality of this merger be gauged on a statewide basis, the Government is suggesting that we take precisely that step, because, as it concedes, the section of the country in which WTB markets by far the greatest portion of its services, due to the predominantly localized character of commercial banking, is the Spokane metropolitan area. [21] Under the precedents, we decline the Government's invitation. We hold that in a potential-competition case like this one, the relevant geographic market or appropriate section of the country is the area in which the acquired firm is an actual, direct competitor. Apart from the fact that the Government's statewide approach is not supported by the precedents, it is simply too speculative on this record. There has been no persuasive showing that the effect of the merger on a statewide basis may be substantially to lessen competition within the meaning of ง 7. To be sure, ง 7 was designed to arrest mergers at a time when the trend to a lessening of competition in a line of commerce [is] still in its incipiency. Brown Shoe Co., 370 U. S., at 317. See, e. g., United States v. Von's Grocery Co., 384 U. S. 270, 277 (1966). Moreover, the proscription expressed in ง 7 against mergers when a `tendency' toward monopoly or [a] `reasonable likelihood' of a substantial lessening of competition in the relevant market is shown, United States v. Penn-Olin Chemical Co., 378 U. S. 158, 171 (1964), applies alike to actual-and potential-competition cases. Ibid. But it is to be remembered that ง 7 deals in probabilities, not ephemeral possibilities. Brown Shoe Co., supra, at 323. [22] The Government's underlying concern for a linkage or network of statewide oligopolistic banking markets is, on this record at least, considerably closer to ephemeral possibilities than to probabilities. To assume, on the basis of essentially no evidence, that the challenged merger will tend to produce a statewide linkage of oligopolies is to espouse a per se rule against geographic market extension mergers like the one at issue here. No ง 7 case from this Court has gone that far, [23] and we do not do so today. For the purpose of this case, the appropriate section of the country and the relevant geographic market are the sameโ€”the Spokane metropolitan area.",the relevant markets
+643,109098,1,3,"The term potential competitor appeared for the first time in a ง 7 opinion of this Court in United States v. El Paso Natural Gas Co., 376 U. S. 651, 659 (1964). El Paso was in reality, however, an actual-competition rather than a potential-competition case. [24] The potential-competition doctrine has been defined in major part by subsequent cases, particularly United States v. Falstaff Brewing Corp., 410 U. S. 526 (1973). [25] Unequivocal proof that an acquiring firm actually would have entered de novo but for a merger is rarely available. [26] Thus, as Falstaff indicates, the principal focus of the doctrine is on the likely effects of the premerger position of the acquiring firm on the fringe of the target market. In developing and applying the doctrine, the Court has recognized that a market extension merger may be unlawful if the target market is substantially concentrated, if the acquiring firm has the characteristics, capabilities, and economic incentive to render it a perceived potential de novo entrant, and if the acquiring firm's premerger presence on the fringe of the target market in fact tempered oligopolistic behavior on the part of existing participants in that market. In other words, the Court has interpreted ง 7 as encompassing what is commonly known as the wings effectโ€”the probability that the acquiring firm prompted premerger procompetitive effects within the target market by being perceived by the existing firms in that market as likely to enter de novo. Falstaff, supra, at 531-537. [27] The elimination of such present procompetitive effects may render a merger unlawful under ง 7. Although the concept of perceived potential entry has been accepted in the Court's prior ง 7 cases, the potential-competition theory upon which the Government places principal reliance in the instant case has not. The Court has not previously resolved whether the potential-competition doctrine proscribes a market extension merger solely on the ground that such a merger eliminates the prospect for long-term deconcentration of an oligopolistic market that in theory might result if the acquiring firm were forbidden to enter except through a de novo undertaking or through the acquisition of a small existing entrant (a so-called foothold or toehold acquisition). Falstaff expressly reserved this issue. [28] The Government's potential-competition argument in the instant case proceeds in five steps. First, it argues that the potential-competition doctrine applies with full force to commercial banks. Second, it submits that the Spokane commercial banking market is sufficiently concentrated to invoke that doctrine. Third, it urges us to resolve in its favor the question left open in Falstaff. Fourth, it contends that, without regard to the possibility of future deconcentration of the Spokane market, the challenged merger is illegal under established doctrine because it eliminates NBC as a perceived potential entrant. Finally, it asserts that the merger will eliminate WTB's potential for growth outside Spokane. We shall address those points in the order presented.
+Since United States v. Philadelphia National Bank, 374 U. S. 321 (1963), the Court has taken the view that, as a general rule, standard ง 7 principles applicable to unregulated industries apply as well to mergers between commercial banks. See also United States v. First National Bank, 376 U. S. 665 (1964). Congress reacted to Philadelphia National Bank by including in the Bank Merger Act of 1966 a convenience and needs defense uniquely applicable to commercial banks. 12 U. S. C. ง 1828 (c) (5) (B) and (c) (7) (B). Subsequent cases have revealed, however, that that defense comes into play only after a district court has made a de novo determination of the status of a bank merger under the Clayton Act. See United States v. Third National Bank, 390 U. S. 171 (1968); United States v. First City National Bank, 386 U. S. 361 (1967). As the Court noted in Phillipsburg National Bank, supra, the antitrust standards of . . . Philadelphia National Bank . . . were preserved in the Bank Merger Act of 1966. 399 U. S., at 358. [29] Although the Court's prior bank merger cases have involved combinations between actual competitors operating in the same geographic markets, an element that distinguishes them factually from this case, they nevertheless are strong precedents for the view that ง 7 doctrines are applicable to commercial banking. In accord with the general principles of those cases, we hold that geographic market extension mergers by commercial banks must pass muster under the potential-competition doctrine. We further hold, however, that the application of the doctrine to commercial banking must take into account the unique federal and state regulatory restraints on entry into that line of commerce. Failure to do so would produce misconceptions that go to the heart of the doctrine itself. The Government's present position has evolved over a series of eight District Court cases, all of them decided unfavorably to its views. [30] The conceptual difficulty with the Government's approach, and an important reason why it has been uniformly unsuccessful in the district courts, is that it fails to accord full weight to the extensive federal and state regulatory barriers to entry into commercial banking. [31] This omission is of great importance, because ease of entry on the part of the acquiring firm is a central premise of the potential-competition doctrine. [32] Unlike, for example, the beer industry, see Falstaff Brewing Corp., supra, entry of new competitors into the commercial banking field is wholly a matter of governmental grace . . . and far from easy. Philadelphia National Bank, supra, at 367, and n. 44. Beer manufacturers are free to base their decisions regarding entry and the scale of entry into a new geographic market on nonregulatory considerations, including their own financial capabilities, their long-range goals as to markets, the cost of creating new production and distribution facilities, and above all the profit prospects in the target market. They need give no thought to public needs and convenience. No comparable freedom exists for commercial banks. Ease of entry into a market presumes ease of exitโ€” i. e., the withdrawal or financial collapse of a certain number of participants in that market. Reflecting this country's bitter experience of four decades ago that [a] bank failure is a community disaster. . . , [33] entry into and exit from the commercial banking business have been extensively regulated by the Federal and State Governments. The regulatory barriers to entry include federal and state supervisory controls over the number of bank charters to be granted, designed to limit the number of banks operating in any particular market and thus to prevent bank failures. See id., at 328. In addition, no branch, no matter how small, may be opened without prior approval of the appropriate bank regulatory agency. Moreover, there are state-law restrictions, such as those in force in Washington, on de novo geographic expansion through branching and multibank holding companies. As noted earlier, Washington statutes forbid branching into cities and towns where the expanding bank does not maintain its headquarters and other banks operate, and they forbid branching from a branch in such areas. See supra, at 609-611. Similarly, Washington permits only one-bank holding companies. Supra, at 611-612. In Philadelphia National Bank, supra, the Court relied on regulatory barriers to entry to support its conclusion that mergers between banks in direct competition in the same market must be scrutinized with particular care under ง 7. 374 U. S., at 352, 367-370, 372. But the same restrictions on new entry render it difficult to hold that a geographic market extension merger by a commercial bank is unlawful under the potential-competition doctrine. Such limitations often significantly reduce, if they do not eliminate, the likelihood that the acquiring bank is either a perceived potential de novo entrant or a source of future competitive benefits through de novo or foothold entry. Similarly, the Court noted in Philadelphia National Bank that under applicable state law de novo branching in the relevant market was permissible and presented an alternative to the merger route . . . . Id., at 370. In this case, by contrast, there are serious questions whether an alternative to the merger route through branching or a functional equivalent is a legal or feasible method of entry by NBC into the Spokane market.
+Since the legality of the challenged merger must be judged by its effects on the relevant product and geographic markets, commercial banking in the Spokane metropolitan area, it is imperative to determine the competitive characteristics of commercial banking in that section of the country. The potential-competition doctrine has meaning only as applied to concentrated markets. That is, the doctrine comes into play only where there are dominant participants in the target market engaging in interdependent or parallel behavior and with the capacity effectively to determine price and total output of goods or services. If the target market performs as a competitive market in traditional antitrust terms, the participants in the market will have no occasion to fashion their behavior to take into account the presence of a potential entrant. The present procompetitive effects that a perceived potential entrant may produce in an oligopolistic market will already have been accomplished if the target market is performing competitively. Likewise, there would be no need for concern about the prospects of long-term deconcentration of a market which is in fact genuinely competitive. In an effort to establish that the Spokane commercial banking market is oligopolistic, the Government relied primarily on concentration ratios indicating that three banking organizations (including WTB) control approximately 92% of total deposits in Spokane. The District Court held against the Government on this point, finding that a highly competitive market existed which does not suffer from parallel or other anticompetitive practices attributable to undue market power. 1973-1 Trade Cas. ถ 74,496, p. 94,246. The court apparently gave great weight to the testimony of the banks' expert witnesses concerning the number of bank organizations and banking offices operating in the Spokane metropolitan area. The record indicates that neither the Government nor the appellees undertook any significant study of the performance, as compared to the structure, of the commercial banking market in Spokane. We conclude that by introducing evidence of concentration ratios of the magnitude of those present here the Government established a prima facie case that the Spokane market was a candidate for the potential-competition doctrine. On this aspect of the case, the burden was then upon appellees to show that the concentration ratios, which can be unreliable indicators of actual market behavior, see United States v. General Dynamics Corp., 415 U. S. 486 (1974), did not accurately depict the economic characteristics of the Spokane market. In our view, appellees did not carry this burden, and the District Court erred in holding to the contrary. Appellees introduced no significant evidence of the absence of parallel behavior in the pricing or providing of commercial bank services in Spokane. [34] We note that it is hardly surprising that the Spokane commercial banking market is structurally concentrated. As the Government's expert witness conceded, all banking markets in the country are likely to be concentrated. [35] This is so because as a country we have made the policy judgment to restrict entry into commercial banking in order to promote bank safety. Thus, most banking markets in theory will be subject to the potential-competition doctrine. But the same factor that usually renders such markets concentrated and theoretical prospects for potential-competition ง 7 casesโ€”regulatory barriers to new entryโ€”will also make it difficult to establish that the doctrine invalidates a particular geographic market extension merger.
+The third step in the Government's argument, resolution of the question reserved in Falstaff, was the primary basis on which the case was presented to the District Court [36] and to us. The Government contends that the challenged merger violates ง 7 because it eliminates the alleged likelihood that, but for the merger, NBC would enter Spokane de novo or through a foothold acquisition. Utilization of one of these methods of entry, it is argued, would be likely to produce deconcentration of the Spokane market over the long run or other procompetitive effects, because NBC would be required to compete vigorously to expand its initially insignificant market share. Two essential preconditions must exist before it is possible to resolve whether the Government's theory, if proved, establishes a violation of ง 7. It must be determined: (i) that in fact NBC has available feasible means for entering the Spokane market other than by acquiring WTB; and (ii) that those means offer a substantial likelihood of ultimately producing deconcentration of that market or other significant procompetitive effects. The parties are in sharp disagreement over the existence of each of these preconditions in this case. There is no dispute that NBC possesses the financial capability and incentive to enter. The controversy turns on what methods of entry are realistically possible and on the likely effect of various methods on the characteristics of the Spokane commercial banking market. It is undisputed that under state law NBC cannot establish de novo branches in Spokane and that its parent holding company cannot hold more than 25% of the stock of any other bank. Entry for NBC into Spokane therefore must be by acquisition of an existing bank. The Government contends that NBC has two distinct alternatives for acquisition of banks smaller than WTB and that either alternative would be likely to benefit the Spokane commercial banking market. First, the Government contends that NBC could arrange for the formation of a new bank (a concept known as sponsorship), insure that the stock for such a new bank is placed in friendly hands, and then ultimately acquire that bank. Appellees respond that this approach would violate the spirit if not the letter of state-law restrictions on bank branching. They note that this method would require the issuance of either a state or a national charter, and they assert that neither state nor federal banking authorities would be likely to grant a charter for a new bank in a static, well-banked market like Spokane. Moreover, it is argued that such officials would be certain to refuse to do so where the purpose of the scheme was to avoid the requirements of the state branching law. [37] Appellees further note that the stock and assets of any new state bank in Washington are inalienable for at least 10 years without approval of state banking officials, see Wash. Rev. Code Ann. ง 30.08.020 (7), and they argue that such officials would refuse to grant approval for sale as part of a sponsorship plan. The Government counters by pointing to instances in which sponsorship-acquisition of small banks by large banks has occurred in Washington, on occasion with the apparent knowledge and asserted approval of bank regulatory officials and within less than 10 years of the formation of the new bank. [38] Indeed, the Government contends that NBC is presently sponsoring a small bank in an unrelated area of Washington with the purpose of ultimate acquisition and conversion of the bank into a branch of NBC. Appellees reply that if sponsorship by other banks has occasionally occurred, it is nonetheless illegal under state law and that prior instances of tolerated illegality do not convert an illegal process into a legal one. NBC also denies that it has ever engaged in sponsorship solely for the purpose of acquisition, and it insists that even if a new bank is sponsored there is no guarantee that the sponsor, rather than some other bank willing to outbid it, will acquire the sponsored bank. [39] Appellees further point out, as is confirmed by the record, that the United States has not shown that any bank in Washington has ever used sponsorship-acquisition as a means of entering a major metropolitan area. In fact, the Government's principal witness in support of its sponsorship theory conceded on cross-examination that his bank wouldn't consider trying to use that method in getting into a major city. [40] In its findings and conclusions, the District Court did not resolve the question of the status of the Government's proposed sponsorship-acquisition approach under Washington's banking statutes. [41] We similarly decline to decide this issue. Although we note that the intricate procedure for entry by sponsorship espoused by the Government can scarcely be compared to the de novo entry opportunities available to unregulated enterprises such as beer producers, see Falstaff, supra, we will assume, arguendo, that NBC conceivably could succeed in sponsoring and then acquiring a new bank in Spokane at some indefinite time in the future. It does not follow from this assumption, however, that this method of entry would be reasonably likely to produce any significant procompetitive benefits in the Spokane commercial banking market. To the contrary, it appears likely that such a method of entry would not significantly affect that market. State law would not allow NBC to branch from a sponsored bank after it was acquired. NBC's entry into Spokane therefore would be frozen at the level of its initial acquisition. Thus, if NBC were to enter Spokane by sponsoring and acquiring a small bank, it would be trapped into a position of operating a single branch office in a large metropolitan area with no reasonable likelihood of developing a significant share of that market. [42] This assumed method of entry therefore would offer little realistic hope of ultimately producing deconcentration of the Spokane market. Moreover, it is unlikely that a single new bank in Spokane with a small market share, and forbidden to branch, would have any other significant procompetitive effect on that market. The Government introduced no evidence, for example, establishing that the three small banks presently in Spokane have had any meaningful effect on the economic behavior of the large Spokane banks. In sum, it blinks reality to conclude that the opportunity for entry through sponsorship, assuming its availability, is comparable to the entry alternatives open to unregulated industries such as those involved in this Court's prior potential-competition cases [43] or would be likely to produce the competitive effects of a truly unfettered method of entry. Since there is no substantial likelihood of procompetitive loss if the challenged merger is undertaken in place of the Government's sponsorship theory, we are unable to conclude that the effect of the former may be substantially to lessen competition within the meaning of the Clayton Act. As a second alternative method of entry, the Government proposed that NBC could enter by a foothold acquisition of one of two small, state-chartered commercial banks that operate in the Spokane metropolitan area. [44] Appellees reply that one of those banks is located in a suburb and has no offices in the city of Spokane, that after an acquisition NBC under state law could not branch from the suburb into the city, and that such a peripheral foothold cannot be viewed as an economically feasible method of entry into the relevant market. Appellees also point out that the second small bank was chartered in 1965 and thus under state law would not have been available for acquisition until at least four years after the 1971 NBC-WTB merger agreement. Granting the Government the benefit of the doubt that these two small banks were available merger partners for NBC, or were available at some not too distant time, it again does not follow that an acquisition of either would produce the long-term market-structure benefits predicted by the Government. Once NBC acquired either of these banks, it could not branch from the acquired bank. This limitation strongly suggests that NBC would not develop into a significant participant in the Spokane market, a prospect that finds support in the record. In 1964, one of the largest bank holding companies in the country, through its Seattle-based subsidiary, acquired a foothold bank with two offices in Spokane. Eight years later this bank, Pacific National Bank, held a mere 2.2% of total bank deposits in the Spokane metropolitan area, an insignificant increase over its share of the market at the date of the acquisition. See n. 2, supra. An officer of this bank, called as a witness by the Government, attributed the poor showing to an inability under state law to establish further branches in Spokane. [45] In sum, with regard to either of its proposed alternative methods of entry, the Government has offered an unpersuasive case on the first precondition of the question reserved in Falstaff โ€”that feasible alternative methods of entry in fact existed. Putting these difficulties aside, the Government simply did not establish the second precondition. It failed to demonstrate that the alternative means offer a reasonable prospect of long-term structural improvement or other benefits in the target market. In fact, insofar as competitive benefits are concerned, the Government is in the anomalous position of opposing a geographic market extension merger that will introduce a third full-service banking organization to the Spokane market, where only two are now operating, in reliance on alternative means of entry that appear unlikely to have any significant procompetitive effect. [46] Accordingly, we cannot hold for the Government on its principal potential-competition theory. Indeed, since the preconditions for that theory are not present, we do not reach it, and therefore we express no view on the appropriate resolution of the question reserved in Falstaff. We reiterate that this case concerns an industry in which new entry is extensively regulated by the State and Federal Governments.
+The Government's failure to establish that NBC has alternative methods of entry that offer a reasonable likelihood of producing procompetitive effects is determinative of the fourth step of its argument. Rational commercial bankers in Spokane, it must be assumed, are aware of the regulatory barriers that render NBC an unlikely or an insignificant potential entrant except by merger with WTB. In light of those barriers, it is improbable that NBC exerts any meaningful procompetitive influence over Spokane banks by standing in the wings. Moreover, the District Court found as a fact that the threat of entry by NBC into the Spokane market by any means other than the consummation of the merger, to the extent any such threat exists, does not have any significant effect on the competitive practices of commercial banks in that market nor any significant effect on the level of competition therein. 1973-1 Trade Cas. ถ 74,496, p. 94,246. In making this finding, it appears that the District Court appraised the economic facts about NBC and the Spokane market in order to determine whether in any realistic sense [NBC] could be said to be a potential competitor on the fringe of the market with likely influence on existing competition. Falstaff, 410 U. S., at 533-534 (footnote omitted). Our review of the record indicates that the court's finding was not in error. The Government's only hard evidence of any wings effect was a memorandum written in 1962 by an officer of NBC expressing the view that Spokane banks were likely to engage in price competition as NBC approached their market. Evidence of an expression of opinion by an officer of the acquiring bank, not an official of a bank operating in the target market, in a memorandum written a decade prior to the challenged merger does not establish a violation of ง 7.
+In the final step of its argument, the Government challenges the merger on the ground that it will eliminate the prospect that WTB may expand outside its base in Spokane and eventually develop into a direct competitor with large Washington banks in other areas of the State. The District Court found, however, that the Government had failed to establish . . . that there is any reasonable probability that WTB will expand into other banking markets . . . . 1973-1 Trade Cas. ถ 74,496, p. 94,246. The record amply supports this finding. At no time in its 70-year history has WTB established branches outside the Spokane metropolitan area. Nor has it ever acquired another bank [47] or received a merger offer other than the one at issue here. [48] In sum, the Government's argument about the elimination of WTB's potential for expansion outside Spokane is little more than speculation. It provides no sound basis for overturning the District Court's holding.",potential-competition doctrine
+644,109098,2,1,"Since United States v. Philadelphia National Bank, 374 U. S. 321 (1963), the Court has taken the view that, as a general rule, standard ง 7 principles applicable to unregulated industries apply as well to mergers between commercial banks. See also United States v. First National Bank, 376 U. S. 665 (1964). Congress reacted to Philadelphia National Bank by including in the Bank Merger Act of 1966 a convenience and needs defense uniquely applicable to commercial banks. 12 U. S. C. ง 1828 (c) (5) (B) and (c) (7) (B). Subsequent cases have revealed, however, that that defense comes into play only after a district court has made a de novo determination of the status of a bank merger under the Clayton Act. See United States v. Third National Bank, 390 U. S. 171 (1968); United States v. First City National Bank, 386 U. S. 361 (1967). As the Court noted in Phillipsburg National Bank, supra, the antitrust standards of . . . Philadelphia National Bank . . . were preserved in the Bank Merger Act of 1966. 399 U. S., at 358. [29] Although the Court's prior bank merger cases have involved combinations between actual competitors operating in the same geographic markets, an element that distinguishes them factually from this case, they nevertheless are strong precedents for the view that ง 7 doctrines are applicable to commercial banking. In accord with the general principles of those cases, we hold that geographic market extension mergers by commercial banks must pass muster under the potential-competition doctrine. We further hold, however, that the application of the doctrine to commercial banking must take into account the unique federal and state regulatory restraints on entry into that line of commerce. Failure to do so would produce misconceptions that go to the heart of the doctrine itself. The Government's present position has evolved over a series of eight District Court cases, all of them decided unfavorably to its views. [30] The conceptual difficulty with the Government's approach, and an important reason why it has been uniformly unsuccessful in the district courts, is that it fails to accord full weight to the extensive federal and state regulatory barriers to entry into commercial banking. [31] This omission is of great importance, because ease of entry on the part of the acquiring firm is a central premise of the potential-competition doctrine. [32] Unlike, for example, the beer industry, see Falstaff Brewing Corp., supra, entry of new competitors into the commercial banking field is wholly a matter of governmental grace . . . and far from easy. Philadelphia National Bank, supra, at 367, and n. 44. Beer manufacturers are free to base their decisions regarding entry and the scale of entry into a new geographic market on nonregulatory considerations, including their own financial capabilities, their long-range goals as to markets, the cost of creating new production and distribution facilities, and above all the profit prospects in the target market. They need give no thought to public needs and convenience. No comparable freedom exists for commercial banks. Ease of entry into a market presumes ease of exitโ€” i. e., the withdrawal or financial collapse of a certain number of participants in that market. Reflecting this country's bitter experience of four decades ago that [a] bank failure is a community disaster. . . , [33] entry into and exit from the commercial banking business have been extensively regulated by the Federal and State Governments. The regulatory barriers to entry include federal and state supervisory controls over the number of bank charters to be granted, designed to limit the number of banks operating in any particular market and thus to prevent bank failures. See id., at 328. In addition, no branch, no matter how small, may be opened without prior approval of the appropriate bank regulatory agency. Moreover, there are state-law restrictions, such as those in force in Washington, on de novo geographic expansion through branching and multibank holding companies. As noted earlier, Washington statutes forbid branching into cities and towns where the expanding bank does not maintain its headquarters and other banks operate, and they forbid branching from a branch in such areas. See supra, at 609-611. Similarly, Washington permits only one-bank holding companies. Supra, at 611-612. In Philadelphia National Bank, supra, the Court relied on regulatory barriers to entry to support its conclusion that mergers between banks in direct competition in the same market must be scrutinized with particular care under ง 7. 374 U. S., at 352, 367-370, 372. But the same restrictions on new entry render it difficult to hold that a geographic market extension merger by a commercial bank is unlawful under the potential-competition doctrine. Such limitations often significantly reduce, if they do not eliminate, the likelihood that the acquiring bank is either a perceived potential de novo entrant or a source of future competitive benefits through de novo or foothold entry. Similarly, the Court noted in Philadelphia National Bank that under applicable state law de novo branching in the relevant market was permissible and presented an alternative to the merger route . . . . Id., at 370. In this case, by contrast, there are serious questions whether an alternative to the merger route through branching or a functional equivalent is a legal or feasible method of entry by NBC into the Spokane market.",Application of the Doctrine to Commercial Banks.
+645,109098,2,2,"Since the legality of the challenged merger must be judged by its effects on the relevant product and geographic markets, commercial banking in the Spokane metropolitan area, it is imperative to determine the competitive characteristics of commercial banking in that section of the country. The potential-competition doctrine has meaning only as applied to concentrated markets. That is, the doctrine comes into play only where there are dominant participants in the target market engaging in interdependent or parallel behavior and with the capacity effectively to determine price and total output of goods or services. If the target market performs as a competitive market in traditional antitrust terms, the participants in the market will have no occasion to fashion their behavior to take into account the presence of a potential entrant. The present procompetitive effects that a perceived potential entrant may produce in an oligopolistic market will already have been accomplished if the target market is performing competitively. Likewise, there would be no need for concern about the prospects of long-term deconcentration of a market which is in fact genuinely competitive. In an effort to establish that the Spokane commercial banking market is oligopolistic, the Government relied primarily on concentration ratios indicating that three banking organizations (including WTB) control approximately 92% of total deposits in Spokane. The District Court held against the Government on this point, finding that a highly competitive market existed which does not suffer from parallel or other anticompetitive practices attributable to undue market power. 1973-1 Trade Cas. ถ 74,496, p. 94,246. The court apparently gave great weight to the testimony of the banks' expert witnesses concerning the number of bank organizations and banking offices operating in the Spokane metropolitan area. The record indicates that neither the Government nor the appellees undertook any significant study of the performance, as compared to the structure, of the commercial banking market in Spokane. We conclude that by introducing evidence of concentration ratios of the magnitude of those present here the Government established a prima facie case that the Spokane market was a candidate for the potential-competition doctrine. On this aspect of the case, the burden was then upon appellees to show that the concentration ratios, which can be unreliable indicators of actual market behavior, see United States v. General Dynamics Corp., 415 U. S. 486 (1974), did not accurately depict the economic characteristics of the Spokane market. In our view, appellees did not carry this burden, and the District Court erred in holding to the contrary. Appellees introduced no significant evidence of the absence of parallel behavior in the pricing or providing of commercial bank services in Spokane. [34] We note that it is hardly surprising that the Spokane commercial banking market is structurally concentrated. As the Government's expert witness conceded, all banking markets in the country are likely to be concentrated. [35] This is so because as a country we have made the policy judgment to restrict entry into commercial banking in order to promote bank safety. Thus, most banking markets in theory will be subject to the potential-competition doctrine. But the same factor that usually renders such markets concentrated and theoretical prospects for potential-competition ง 7 casesโ€”regulatory barriers to new entryโ€”will also make it difficult to establish that the doctrine invalidates a particular geographic market extension merger.",Structure of the Spokane Market.
+646,109098,2,4,"The Government's failure to establish that NBC has alternative methods of entry that offer a reasonable likelihood of producing procompetitive effects is determinative of the fourth step of its argument. Rational commercial bankers in Spokane, it must be assumed, are aware of the regulatory barriers that render NBC an unlikely or an insignificant potential entrant except by merger with WTB. In light of those barriers, it is improbable that NBC exerts any meaningful procompetitive influence over Spokane banks by standing in the wings. Moreover, the District Court found as a fact that the threat of entry by NBC into the Spokane market by any means other than the consummation of the merger, to the extent any such threat exists, does not have any significant effect on the competitive practices of commercial banks in that market nor any significant effect on the level of competition therein. 1973-1 Trade Cas. ถ 74,496, p. 94,246. In making this finding, it appears that the District Court appraised the economic facts about NBC and the Spokane market in order to determine whether in any realistic sense [NBC] could be said to be a potential competitor on the fringe of the market with likely influence on existing competition. Falstaff, 410 U. S., at 533-534 (footnote omitted). Our review of the record indicates that the court's finding was not in error. The Government's only hard evidence of any wings effect was a memorandum written in 1962 by an officer of NBC expressing the view that Spokane banks were likely to engage in price competition as NBC approached their market. Evidence of an expression of opinion by an officer of the acquiring bank, not an official of a bank operating in the target market, in a memorandum written a decade prior to the challenged merger does not establish a violation of ง 7.",Perceived Potential Entry.
+647,109098,2,5,"In the final step of its argument, the Government challenges the merger on the ground that it will eliminate the prospect that WTB may expand outside its base in Spokane and eventually develop into a direct competitor with large Washington banks in other areas of the State. The District Court found, however, that the Government had failed to establish . . . that there is any reasonable probability that WTB will expand into other banking markets . . . . 1973-1 Trade Cas. ถ 74,496, p. 94,246. The record amply supports this finding. At no time in its 70-year history has WTB established branches outside the Spokane metropolitan area. Nor has it ever acquired another bank [47] or received a merger offer other than the one at issue here. [48] In sum, the Government's argument about the elimination of WTB's potential for expansion outside Spokane is little more than speculation. It provides no sound basis for overturning the District Court's holding.",Elimination of WTB's Potential for Growth.
+648,109101,1,4,"
+Having determined that the requirements of Rule 17 (c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce. App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum. In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that [i]t is emphatically the province and duty of the judicial department to say what the law is. Id., at 177. No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U. S. Const. Art. I, § 6. Doe v. McMillan, 412 U. S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson, 383 U. S. 169 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U. S., at 211, the Court stated: Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. Notwithstanding the deference each branch must accord the others, the judicial Power of the United States vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. 1938). We therefore reaffirm that it is the province and duty of this Court to say what the law is with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177.
+In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. [15] Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; [16] the protection of the confidentiality of Presidential communications has similar constitutional underpinnings. The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U. S. 602, 629-630 (1935); Kilbourn v. Thompson, 103 U. S. 168, 190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications. However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 635 (Jackson, J., concurring). To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of a workable government and gravely impair the role of the courts under Art. III.
+Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807). The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. [17] In Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F. 2d 700 (1973), the Court of Appeals held that such Presidential communications are presumptively privileged, id., at 75, 487 F. 2d, at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that [i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual. United States v. Burr, 25 F. Cas., at 192. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer. Berger v. United States, 295 U. S., at 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial, that `the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U. S. [323, 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 438 (1932) . . . . Branzburg v. Hayes, 408 U. S. 665, 688 (1972). The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man shall be compelled in any criminal case to be a witness against himself. And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth. [18] In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S. S. Crop., 333 U. S. 103, 111 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said: The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. In United States v. Reynolds, 345 U. S. 1 (1953), dealing with a claimant's demand for evidence in a Tort Claims Act case against the Government, the Court said: It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. Id., at 10. No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based. The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. [19] The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution. [20] On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
+We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was essential to the justice of the [pending criminal] case. United States v. Burr, 25 F. Cas., at 192. Here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record we are unable to conclude that the District Court erred in ordering the inspection. Accordingly we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.
+Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. [T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued. United States v. Burr, 25 F. Cas., at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that [i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual. 25 F. Cas., at 192. Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual. It is therefore necessary [21] in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra , and will discharge his responsibility to see to it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian. Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith. Affirmed. MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.",the claim of privilege
+649,109179,1,1,"North Dakota's original Constitution, adopted at the State's admission into the Union in 1889, is still in effect. It has been amended, of course, from time to time. Since 1918, § 25 thereof has read: The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives. N. D. Const. Art. II, § 25. That legislative power for 70 years has been subject to the initiative and the referendum. Ibid. The Constitution has further provided that the State's senate shall be composed of forty-nine members, § 26, elected for a four-year term, § 27, with one-half thereof elected every two years, § 30, and that no one shall be a senator unless he is a qualified elector of the senatorial district, has attained the age of 25 years, and has been a resident of the State for the two years next preceding the election, § 28. Since 1960, § 29 has read: Each existing senatorial district as provided by law at the effective date of this amendment shall permanently constitute a senatorial district. Each senatorial district shall be represented by one senator and no more. [1] Laws 1959, c. 438; Laws 1961, c. 405. The document also states that the house of representatives shall be composed of not less than sixty, nor more than one hundred forty members, § 32, elected for a two-year term, § 33, and that no one shall be a representative unless he is a qualified elector of the district, has attained the age of 21 years, and has been a resident of the State for the two years next preceding the election, § 34. Section 35 provides for at least one representative for each senatorial district and for as many representatives as there are counties in the district; states that the Legislative Assembly, after each federal decennial census, shall apportion the balance of the members of the House of Representatives, and, if the Legislative Assembly fails in its apportionment duty, places the task of apportioning the house in a designated group of officials of the State. [2] There have been complementary statutory provisions. An apportionment effected by Laws 1931, c. 7, N. D. Cent. Code § 54-03-01 (1960), was in effect for over 30 years despite the mandate of § 35 of the Constitution that apportionment be effected after each federal census.",The State's Constitution and Its Statutes
+650,109179,1,2,"A. Things began to stir in North Dakota even prior to this Court's decision in Baker v. Carr in 1962. The State's Legislative Assembly of 1961 had failed to apportion the house following the 1960 census. After Baker had been decided at the District Court level, 179 F. Supp. 824 (MD Tenn. 1959), and between the argument and reargument of the case here, the Supreme Court of North Dakota dismissed an original action for a prerogative writ to enjoin its Chief Justice from issuing the apportionment proclamation which would have announced the conclusions of the statutorily designated apportionment group that were then anticipated. The petition asserted that the group's plan would apportion the house in an unconstitutional manner and not according to population. The Supreme Court ruled that the function of the group was legislative; that it had not yet completed its work; that it was performing a function the Legislative Assembly should have performed; and that, until the proclamation was issued, the group's action was not subject to challenge in the courts. State ex rel. Aamoth v. Sathre, 110 N. W. 2d 228 (1961). B. Citizens of North Dakota then sought declaratory and injunctive relief in federal court under the Civil Rights Acts, 42 U. S. C. §§ 1983 and 1988. By this time the State's Chief Justice had issued the proclamation. A three-judge District Court held that the presence of the proclamation eliminated the aspect of prematurity that had characterized the earlier challenge in the state court. But the basic issues, the court concluded with one dissent, had not been presented to the Supreme Court of North Dakota. We believe that court should have the opportunity of passing on all questions herein. The court, accordingly, abstained from passing upon those issues; it stayed further proceedings before it, but did not dismiss the action. Lein v. Sathre, 201 F. Supp. 535, 542 (ND 1962). C. The plaintiffs in the federal case promptly took to the Supreme Court of North Dakota their attack upon the plan adopted by the apportionment group. That court assumed jurisdiction. State ex rel. Lein v. Sathre, 113 N. W. 2d 679, 681 (1962). It noted that no question arising under the United States Constitution was presented, id., at 681-682, and that it was not concerned with the validity of the allotment of one representative to each senatorial district, as prescribed by the first sentence of § 35 of the Constitution, id., at 683. The court recognized that there was inherent in a constitutional direction to apportion according to population a limited discretion to make the apportionment that will approach, as nearly as is reasonably possible, a mathematical equality. Id., at 685. It then went on to hold that the apportionment made by the group violates the constitutional mandate of apportionment according to the population of the several districts and is void, id., at 687, and that the apportionment effected by the 1931 statute continued to be the law until superseded by an apportionment valid under § 35 or under a further amendment of the Constitution. Id., at 687-688. D. The same plaintiffs then turned again to the federal court. The three-judge court, with one judge dissenting, denied the request for injunctive relief on the ground that the only challenge before it was to the apportionment group's plan, and that the 1931 apportionment was not challenged. Lein v. Sathre, 205 F. Supp. 536 (ND 1962). It noted that the Legislative Assembly would meet the following January, that it had the mandatory duty to apportion the house, and that the court would not presume that it would not perform that duty. Jurisdiction was retained, with the observation that if the Legislative Assembly failed to act, the plaintiffs, upon appropriate amendment of their complaint, might further petition the court for relief. Id., at 540. E. The 1963 Legislative Assembly did reapportion. Laws 1963, c. 345. F. Reynolds v. Sims, 377 U. S. 533, and its companion cases were decided in June 1964. A new suit then was instituted in federal court to invalidate North Dakota's entire apportionment system on federal constitutional grounds. Sections 26, 29, and 35 of the Constitution and the 1963 statute were challenged. The three-judge court held that these constitutional and statutory provisions were violative of the Equal Protection Clause. Paulson v. Meier, 232 F. Supp. 183 (ND 1964). It went on to hold that the 1931 apportionment, being the last valid apportionment, as described by the North Dakota Supreme Court, and by which the 1963 legislators had been elected, was also invalid. Thus, there is no constitutionally valid legislative apportionment law in existence in the State of North Dakota at this time. Id., at 187. The court encountered difficulty as to an appropriate remedy. It concluded, one judge dissenting, that adequate time was not available within which to formulate a proper plan for the then forthcoming 1964 elections, id., at 188; that the 1965 Legislative Assembly would have a de facto status; and that that Assembly should promptly devise a constitutional system. Injunctive relief was denied. Id., at 190. G. The 1965 Legislative Assembly produced a reapportionment act although it was not approved or disapproved by the Governor. Laws 1965, c. 338. H. The North Dakota Secretary of State, defendant in the federal court, then moved to dismiss the federal action on the ground that the 1965 act met constitutional requirements. The three-judge court, however, ruled otherwise. Paulson v. Meier, 246 F. Supp. 36, 43 (ND 1965). It turned to the question of remedy and concluded that the Legislative Assembly had had its opportunity and that the court now had the duty itself to take affirmative action. Id., at 43-44. It considered several plans that had been introduced in the Assembly and centered its attention on the Smith plan. Although the court found the plan not perfect (five multimember senatorial districts, [3] and county lines violated in 12 instances), it concluded that the plan, if slightly modified, would meet constitutional standards (impressive mathematical exactness, namely, 25 of 39 districts within 5% of the average population, four slightly over 5%, and only two exceeding 9%). Id., at 44-45. The slight modification was made and reapportionment, really the first to be finally effected since 1931, was therefore accomplished in North Dakota by federal-court intervention. I. Still another original proceeding in the State's Supreme Court was instituted. This one challenged the right of senators from the multimember districts to hold office. It was claimed that this multiple membership violated § 29 of the North Dakota Constitution which provided that each senatorial district shall be represented by one senator and no more. The state court held that the 1965 judgment of the federal court was not res judicata as to the then plaintiffs; that the initial or freezing portion of § 29 was clearly invalid; that the concluding portion, restricting representation of a district to one senator, would not have been desired by the people without the balance of the freezing portion; and that § 29 as a unit must fall as violative of equal protection. State ex rel. Stockman v. Anderson, 184 N. W. 2d 53 (1971). The result was that multimember senatorial districts were not held illegal by the state court.",Prior Litigation
+651,109179,1,5,"From the above review of the North Dakota constitutional and statutory provisions and of the litigation of the past 12 years, two significant facts emerge: The first is that some multimembership on the house side of the Legislative Assembly traditionally has existed. This plainly qualifies as established state policy. [8] The second is that, in contrast, multimembership on the senate side, even as to the five districts, has never existed except as imposed (a) by the three-judge federal court by its 1965 Paulson decision; (b) by a majority of the three-judge court as a temporary expedient for the 1972 election only; (c) by the provisions of the 1973 act immediately nullified by referendum; and (d) by a different majority of the three-judge court as a permanent solution in the judgment under review. Thus only once has the Legislative Assembly provided for multimember senate representation and that effort was promptly aborted. Every other such provision in North Dakota's history has been court imposed. Multimember senate representation, therefore, obviously does not qualify as established state policy. This Court has refrained from holding that multimember districts in apportionment plans adopted by States for their legislatures are per se unconstitutional. White v. Regester, 412 U. S. 755, 765 (1973), and cases cited therein. On the contrary, the Court has upheld numerous state-initiated apportionment schemes utilizing multimember districts. See, e. g., Kilgarlin v. Hill, 386 U. S. 120 (1967); Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965). And, beginning with Reynolds v. Sims, 377 U. S., at 577, the Court has indicated that a State might devise an apportionment plan for a bicameral legislature with one body composed of at least some multimember districts, as long as substantial equality of population per representative is maintained. Notwithstanding this past acceptance of multimember districting plans, we recognize that there are practical weaknesses inherent in such schemes. First, as the number of legislative seats within the district increases, the difficulty for the voter in making intelligent choices among candidates also increases. See Lucas v. Colorado General Assembly, 377 U. S., at 731. Ballots tend to become unwieldy, confusing, and too lengthy to allow thoughtful consideration. Second, when candidates are elected at large, residents of particular areas within the district may feel that they have no representative specially responsible to them. Ibid. [9] Third, it is possible that bloc voting by delegates from a multimember district may result in undue representation of residents of these districts relative to voters in single-member districts. This possibility, however, was rejected, absent concrete proof, in Whitcomb v. Chavis, 403 U. S. 124, 147 (1971). Criticism of multimember districts has been frequent and widespread. Id., at 157-160, [10] and articles cited therein. See generally Carpeneti, Legislative Apportionment: Multimember Districts and Fair Representation, 120 U. Pa. L. Rev. 666 (1972); Banzhaf, Multi-Member Electoral Districts—Do They Violate the One Man, One Vote Principle, 75 Yale L. J. 1309 (1966). In Fortson v. Dorsey, supra , we held that the mere assertion of such possible weaknesses in a legislature's multimember districting plan was insufficient to establish a denial of equal protection. Rather, it must be shown that designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. 379 U. S., at 439. Further, there must be more evidence than a simple disproportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups. White v. Regester, 412 U. S., at 765-766. Such evidence may be more easily developed where the multi-member districts compose a large part of the legislature, where both bodies in a bicameral legislature utilize multi-member districts, or where the members' residences are concentrated in one part of the district. Burns v. Richardson, 384 U. S., at 88. [11] Whether such factors are present or not, proof of lessening or cancellation of voting strength must be offered. This requirement that one challenging a multimember districting plan must prove that the plan minimizes or cancels out the voting power of a racial or political group has been applied in cases involving apportionment schemes adopted by state legislatures. In Connor v. Johnson, 402 U. S. 690 (1971), however, which came to us on an application for a stay, we were presented with a court-ordered reapportionment scheme having some multimember districts in both bodies of the state legislature. We stated explicitly that when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter. Id., at 692. Exercising our supervisory power, we directed the District Court to devise a single-member districting plan, absent insurmountable difficulties. Ibid. This preference for and emphasis upon single-member districts in court-ordered plans was reaffirmed in Connor v. Williams, 404 U. S., at 551, and again in Mahan v. Howell, 410 U. S. 315, 333 (1973). In the latter case a District Court was held to have acted within its discretion in forming a multimember district as an interim remedy in order to alleviate substantial underrepresentation of military personnel in an impending election. [12] The standards for evaluating the use of multimember districts thus clearly differ depending on whether a federal court or a state legislature has initiated the use. The practical simultaneity of decision in Connor v. Johnson and in Whitcomb v. Chavis, supra , so demonstrates. When the plan is court ordered, there often is no state policy of multimember districting which might deserve respect or deference. Indeed, if the court is imposing multimember districts upon a State which always has employed single-member districts, there is special reason to follow the Connor rule favoring the latter type of districting. Appellants do not contend that any racial or political group [13] has been discriminated against by the multimember districting ordered by the District Court. They only suggest that the District Court has not followed our mandate in Connor v. Johnson , and that the court has failed to articulate any reasons for this departure. We agree. Absent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State. The District Court cannot avoid the multimember issue by labeling it, see 372 F. Supp., at 377, a political issue to be resolved by the State. The District Court itself created multimember districting in North Dakota, and it might be said to be disingenuous to suggest that the judicial creation became a political question simply by the passage of nine years. The District Court's treatment of this issue directly conflicts with its prior opinion in this case, where it allowed continuation of the multimember districts first established in the Paulson decision in 1965 only as an interim remedy. 372 F. Supp., at 367. The court there noted that in the largest multimember district, a voter would be asked to evaluate the qualifications of at least 30 candidates for the state legislature, a most formidable task. Id., at 366. Taking note of Connor v. Johnson , the court held in 1972 that it would be improper to permit multimember districts to remain permanently, and allowed continued use only for the impending election because of the great confusion that otherwise would result. The court appears now to have abandoned that position, with no suggestion of reasons for the abrupt change. It is especially anomalous that the court would continue with the multimember districting plan, when the Special Master who initially proposed it has disavowed use of permanent multimember districts. Dobson, Reapportionment Problems, 48 N. D. L. Rev. 281, 289 (1972). In contrast, the dissent in the District Court suggests a wide range of attributes of single-member districts. 372 F. Supp., at 391. One advantage is obvious: confusion engendered by multiple offices will be removed. Other advantages perhaps are more speculative: single-member districts may prevent domination of an entire slate by a narrow majority, may ease direct communication with one's senator, may reduce campaign costs, and may avoid bloc voting. Of course, these are general virtues of single-member districts, and there is no guarantee that any particular feature will be found in a specific plan. Neither the District Court majority nor appellee, however, has provided us with any suggestion of a legitimate state interest supporting the abandonment of the general preference for single-member districts in court-ordered plans which we recognized in Connor v. Johnson . [14] The fact that no allegation of minority group discrimination is raised by appellants here does not make Connor inapplicable. It is true that in 1973 the voters of North Dakota voted down a proposed constitutional amendment which would have re-established the State's tradition of single-member senatorial districts. At the same time the voters also rejected by referendum the Legislative Assembly's 1973 Act which would have continued the multimember format for five districts. We are unable to infer from these simultaneous actions of the electorate any particular attitude toward multimember districts. It simply appears that North Dakota's voters have not been satisfied with any reapportionment proposal, and that they are frustrated by the years of confusion since the obviously impermissible apportionment provisions of the State's Constitution were invalidated. We are confident that the District Court, with perhaps the aid of its Special Masters, will be able to reinstitute the use of single-member districts while also attaining the necessary goal of substantial population equality. Special Master Ostenson had indicated that it  `would not be terribly difficult to adopt single-member districts.'  See 372 F. Supp., at 392. [15] Unless the District Court can articulate such a singular combination of unique factors as was found to exist in Mahan v. Howell, 410 U. S., at 333, or unless the 1975 Legislative Assembly appropriately acts, the court should proceed expeditiously to reinstate single-member senatorial districts in North Dakota.",The Multimember Districts
+652,109179,1,6,"The second aspect of the court-ordered reapportionment plan that is challenged by the appellants is the population divergence in the various senatorial districts. Since the population of the State under the 1970 census was 617,761, and the number of senators provided for by the court's plan was 51, each senatorial district would contain 12,112 persons if population equality were achieved. In fact, however, one district under the plan has 13,176 persons, and thus is underrepresented by 8.71%, while another district has 10,728 persons, and is overrepresented by 11.43%. The total variance between the largest and smallest districts consequently is 20.14%, and the ratio of the population of the largest to the smallest is 1.23 to 1. Reynolds v. Sims, supra , established that both houses of a state legislature must be apportioned so that districts are as nearly of equal population as is practicable. 377 U. S., at 577. While [m]athematical exactness or precision is not required, there must be substantial compliance with the goal of population equality. Ibid. Reynolds v. Sims , of course, involved gross population disparity among districts. Since Reynolds, we have had the opportunity to observe attempts in many state legislative reapportionment plans to achieve the goal of population equality. Although each case must be evaluated on its own facts, and a particular population deviation from the ideal may be permissible in some cases but not in others, Swann v. Adams, 385 U. S. 440, 445 (1967), certain guidelines have been developed for determining compliance with the basic goal of one person, one vote. In Swann we held that a variance of 25.65% in one house and 33.55% in the other was impermissible absent a satisfactory explanation grounded on acceptable state policy. Id., at 444. See also Kilgarlin v. Hill, 386 U. S., at 123-124. In Swann, no justification of the divergences had been attempted. Possible justifications, each requiring adequate proof, were suggested by the Court. Among these were such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines. 385 U. S., at 444. See also Reynolds v. Sims, 377 U. S., at 578-581. On the other hand, we have acknowledged that some leeway in the equal-population requirement should be afforded States in devising their legislative reapportionment plans. As contrasted with congressional districting, where population equality appears now to be the pre-eminent, if not the sole, criterion on which to adjudge constitutionality, Wesberry v. Sanders, 376 U. S. 1 (1964); Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells v. Rockefeller, 394 U. S. 542 (1969); White v. Weiser, 412 U. S. 783 (1973), when state legislative districts are at issue we have held that minor population deviations do not establish a prima facie constitutional violation. For example, in Gaffney v. Cummings, 412 U. S. 735 (1973), we permitted a deviation of 7.83% with no showing of invidious discrimination. In White v. Regester, supra , a variation of 9.9% was likewise permitted. The treatment of the reapportionment plan in Mahan v. Howell, supra , is illustrative of our approach in this area. There the Virginia Legislature had fashioned a plan providing a total population variance of 16.4% among house districts. This disparity was of sufficient magnitude to require an analysis of the state policies asserted in justification. We found that the deviations from the average were caused by the attempt of the legislature to fulfill the rational state policy of refraining from splitting political subdivisions between house districts, and we accepted the policy as legitimate notwithstanding the fact that subdivision splits were permitted in senatorial districts. Since the population divergences in the Virginia plan were based on legitimate considerations incident to the effectuation of a rational state policy, Reynolds v. Sims, 377 U. S., at 579, we held that the plan met constitutional standards. It is to be observed that this measure of acceptable deviation from population equality has been developed in cases that concerned apportionment plans enacted by state legislatures. In the present North Dakota case, however, the 20% variance is in the plan formulated by the federal court. We believe that a population deviation of that magnitude in a court-ordered plan is constitutionally impermissible in the absence of significant state policies or other acceptable considerations that require adoption of a plan with so great a variance. The burden is on the District Court to elucidate the reasons necessitating any departure from the goal of population equality, and to articulate clearly the relationship between the variance and the state policy furthered. The basis for the District Court's allowance of the 20% variance is claimed to lie in the absence of electorally victimized minorities, in the fact that North Dakota is sparsely populated, in the division of the State caused by the Missouri River, and in the goal of observing geographical boundaries and existing political subdivisions. We find none of these factors persuasive here, and none of them has been explicitly shown to necessitate the substantial population deviation embraced by the plan. First, a variance of this degree cannot be justified simply because there is no particular racial or political group whose voting power is minimized or canceled. All citizens are affected when an apportionment plan provides disproportionate voting strength, and citizens in districts that are underrepresented lose something even if they do not belong to a specific minority group. Second, sparse population is not a legitimate basis for a departure from the goal of equality. A State with a sparse population may face problems different from those faced by one with a concentrated population, but that, without more, does not permit a substantial deviation from the average. Indeed, in a State with a small population, each individual vote may be more important to the result of an election than in a highly populated State. Thus, particular emphasis should be placed on establishing districts with as exact population equality as possible. The District Court's bare statement that North Dakota's sparse population permitted or perhaps caused the 20% deviation is inadequate justification. [16] Third, the suggestion that the division of the State caused by the Missouri River and the asserted state policy of observing existing geographical and political subdivision boundaries warrant departure from population equality is also not persuasive. It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines. As the dissenting judge in this case noted, appellee's counsel acknowledged that reapportionment proposed by the Legislative Assembly broke county lines, 372 F. Supp., at 393 n. 22, and the District Court indicated as long as a decade ago that the legislature had abandoned the strict policy. Paulson v. Meier, 246 F. Supp., at 42-43. Furthermore, a plan devised by Special Master Ostenson demonstrates that neither the Missouri River nor the policy of maintaining township lines prevents attaining a significantly lower population variance. [17] We do not imply that the Ostenson plan should be adopted by the District Court, or that its 5.95% population variance necessarily would be permissible in a court-ordered plan. What we intend by our reference to the Ostenson plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible. [18] The District Court has provided no rationale for its rejection of the Ostenson plan. Examination of the asserted justifications of the court-ordered plan thus plainly demonstrates that it fails to meet the standards established for evaluating variances in plans formulated by state legislatures or other state bodies. The plan, hence, would fail even under the criteria enunciated in Mahan v. Howell and Swann v. Adams . A court-ordered plan, however, must be held to higher standards than a State's own plan. With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features. We have felt it necessary in this case to clarify the greater responsibility of the District Court, when devising its own reapportionment plan, because of the severe problems occasioned for the citizens of North Dakota during the several years of redistricting confusion.",The Population Variance
+653,107576,1,1,"
+Most of the parties before us are in accord that the merger is in the public interest and should be consummated as promptly as possible. Those urging immediate consummation before this Court include the Department of Justice and the Commission, the States of Pennsylvania, Connecticut, Rhode Island, New York, Massachusetts, and New Jersey; the Railway Labor Executives' Association; the trustees of the NH; the Pennsylvania and New York Central railroads; B & M; and, in substance, the E-L, D & H, and N & W and its allies. While this consensus has reduced the attacks upon the merits of the merger to a minimum, considering the vast size and implications of the transaction, we must nevertheless address ourselves to the basic merits of the merger as well as to the specific objections that are before us. With respect to the merits of the merger, however, our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute. The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence. See, e. g., Illinois C. R. Co. v. Norfolk & W. R. Co., 385 U. S. 57, 69 (1966). Section 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U. S. C. § 5, sets forth the national transportation policy that is to guide the Commission in its scrutiny of mergers proposed by railroads. The Commission is to approve such proposals, pursuant to the terms of § 5 (2) (b) of that Act, when they are made upon just and reasonable terms and are consistent with the public interest. In reaching its decision, the Commission is to give weight to a number of factors, such as: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected. 49 U. S. C. § 5 (2) (c). We find no basis for reversing the decision of the District Court that the Commission's approval of the merger is in compliance with law and the statutory standards, and is based on adequate findings supported by substantial evidence. We shall first discuss considerations which are basic to the statutory standards, and we shall then turn to certain particular objections which have been made. It is, of course, true that the policy of Congress, set forth in the Transportation Act, to consolidate the railroads of this Nation into a limited number of systems is a variation from our traditional national policy, reflected in the antitrust laws, of insisting upon the primacy of competition as the touchstone of economic regulation. Competition is merely one consideration here. See Seaboard Air Line R. Co. v. United States, 382 U. S. 154 (1965). This departure from the general and familiar standard of industrial regulation emphasizes the need for insistence that, before a rail merger is approved, there must be convincing evidence that it will serve the national interest and that terms are prescribed so that the congressional objective of a rail system serving the public more effectively and efficiently will be carried out. Obviously, not every merger or consolidation that may be agreed upon by private interests can pass the statutory tests. Examination of the record and of the findings in the present case, however, satisfies us that the Commission has properly and lawfully discharged its duties with respect to the merits of the merger. In these elaborate and lengthy proceedings the Commission has considered evidence tendered by others and compiled by its own staff. Upon the aggressive suit of parties representing conflicting interests, it has analyzed every pertinent aspect of the merger and the inclusion order. It has weighed conflicting viewpoints on all of the fundamental issues and many that are tangential. As the Commission concluded, the evidence before it, with negligible exceptions, attested to the probability of significant benefit from the merger, not only to the railroads and their investors, but also to shippers and the general public. The Commission carefully considered the implications of the fact that the Pennsylvania and the New York Central, as individual systems, have operated at a profit, and that there are reasonably good prospects for a continuation of such operation. But it was impressed by the fact that, as individual systems, these profits are not sufficient to put the roads in a position to make improvements important to the national interest, including the maintenance of services which, although essential to the public, are not self-supporting, and furnishing assistance to other roads serving public needs in their general territory. The Commission emphasized that the merger would enable the unified company to accelerate investments in transportation property and continually modernize plant and equipment . . . and provide more and better service. 327 I. C. C. 475, 501-502. And it pointed out that only by permitting the merger would it be possible for the Commission to compel Penn-Central to come to the rescue of the New Haven, as we shall describe. With respect to the lessening of competition where it now exists between the roads to be merged, the Commission pointed out that it will retain continuing power over reductions of service and facilities which are not specifically approved in the merger plans. Such consolidations and abandonments will have to be presented to the Commission for its approval and may be subjected to public criticism and hearings and to conditions or disapproval. It also noted that the rail service by the merged company will remain subject to vigorous competition from other roads, including the N & W and the C & O-B & O systems, and from motor, water, and air carriers. The Commission summarized some of the factors which would act as a restraint upon the merged company as follows: The power of shippers to direct the routing, the availability of numerous routes in a dense network of interline routes, the influence of connecting carriers in preventing a deterioration in service on the joint routes in which they participate, the growing strength of the N & W and C & O-B & O systems, all stand to provide a check against any abuse of economic power by the merged applicants. 327 I. C. C., at 514. Considering the record, and the findings and analysis of the Commission, we see no basis for reversal of the District Court's decision that the Commission's public interest conclusions are adequately supported and are in accordance with law. We find no basis, consonant with the principles governing judicial review, for setting aside the Commission's determination, approved by the District Court, that the public interest directives of the governing statute have been reasonably satisfied: that the transaction is likely to have a beneficial and not an adverse effect upon transportation service to the public; and that, as we shall discuss, appropriate provisions have been made with respect to other railroads that are directly affected by the merger.
+The only objectors in this Court to the public interest findings with respect to the merger are certain interests in the State of Pennsylvania. Appeal No. 835 was taken by the City of Scranton and Milton J. Shapp, a stockholder in the Pennsylvania Railroad Company. These parties filed complaints in the Southern District of New York challenging the Commission's original merger decision. After this Court's remand last Term, they were ordered by the District Court to file supplemental complaints. They declined to comply because, having intervened as plaintiffs in a proceeding challenging the merger in the Middle District of Pennsylvania, they chose to rely upon their asserted right to challenge the Commission's merger and inclusion decisions in the Pennsylvania action. After several warnings, their complaints in the New York court were dismissed, with prejudice. The action in the Middle District of Pennsylvania, in which Shapp and Scranton intervened, was filed by the Borough of Moosic on June 26, 1967, to set aside the Commission's orders, entered after our remand, approving the Penn-Central merger and the inclusion of the three protected roads in the N & W system. The Pennsylvania court stayed the Moosic proceeding by order of July 11, 1967, on the request of the United States and the Commission, for the sound purpose of preventing a multiplicity of litigation regarding the Commission's merger and inclusion decisions. Cf. Kansas City Southern R. Co. v. United States, 282 U. S. 760 (1931). Petitions for mandamus or certiorari, on behalf of Moosic (No. 663, Misc.) and Scranton and Shapp (No. 664, Misc.), seeking to challenge the stay of proceedings entered by the Pennsylvania court, have been filed in this Court. Since it now appears that the Middle District of Pennsylvania has dissolved its stay and commenced hearings, it would be pointless for us to review the stay order. Accordingly, the petitions for mandamus or certiorari are dismissed as moot. Scranton, Shapp, and Moosic attack the Commission's merger and inclusion decisions along a broad front and claim error in the Commission's basic findings that the Penn-Central merger and inclusion of the protected lines in N & W are in the public interest. The thrust of this argument is that the Commission failed to consider or properly to evaluate the adverse effect of the Penn-Central merger, considered in light of the order requiring inclusion of the three protected roads in the N & W system, upon certain affected communities in the State of Pennsylvania. We do not agree. In its April 6, 1966, opinion approving the Penn-Central merger, the Commission examined the arguments made by participating communities in great detail and stated that the contentions regarding the adverse effect of the merger on Pennsylvania's economy are not substantiated by the evidence. On this record, the prospects clearly import that the merger will benefit rather than harm the Commonwealth. 327 I. C. C. 475, 492. At the time it made this finding, the Commission was committed to the proposition enunciated in the April 6, 1966, opinion, that the three protected roads would be included in one of the larger systems because of their inability to survive as independent lines. This Court in its decision last Term emphasized the importance of such inclusion. The Commission's conclusion that the net result of the merger would be beneficial to the State of Pennsylvania is bolstered by the strong position taken by the State in this Court that the decision of the District Court for the Southern District of New York should be affirmed. As we discuss, infra, apart from the general and theoretical argument that the Penn-Central merger and the inclusion of the three roads in the N & W system may harm some Pennsylvania interests, complainants' fears of specific injury resulting from reduction of competition by specific curtailments of service now provided by the three protected lines may be asserted in appropriate proceedings when such curtailment is specifically proposed. All other complaints of these parties relate broadly and generally to the fundamental and underlying economic problems that are involved in the merger and inclusion decisions: for example, the anticompetitive consequences of these decisions and the financial situation and prospects of the Pennsylvania and New York Central as independent lines. They were all the subject of extensive evidence and were analyzed at length by the Commission. In dismissing the complaints of Scranton and Shapp for failure to go forward, Judge Friendly noted that [w]hile we entertain no doubt of the sufficiency of this [procedural] ground, we think it well to add that . . . we find no merit in the complaints of Shapp and The City of Scranton. The court remarked that, for the most part, the attacks [of Scranton and Shapp] simply represent disagreement with procedural and policy determinations which Congress has committed to the Commission. 279 F. Supp., at 326, n. 6. We find no reason to reverse the judgment of the District Court for the Southern District of New York for dismissing the complaints of Scranton and Shapp for failure to prosecute, or to set aside its conclusions as to the lack of merit of their claims, particularly in light of the limited function of judicial review of decisions such as those now before us and the opportunity open to them to challenge proposals which may be made for specific curtailment of service. Scranton and Shapp, like the Borough of Moosic, wish now to go forward with their complaints in the Middle District of Pennsylvania, in which they seek an injunction against consummation of the Penn-Central merger and the effectiveness of the inclusion order. But Shapp and Scranton were parties to the New York proceedings and the Borough of Moosic had an adequate opportunity to join in the litigation in that court following the stay of proceedings in the Middle District of Pennsylvania. As we noted, supra, n. 2, all district courts in which actions to review the Commission's findings or for injunctive relief were filed continued their proceedings in deference to the New York court. All parties with standing to challenge the Commission's action might have joined in the New York proceedings. [4] In these circumstances, it necessarily follows that the decision of the New York court which, with certain exceptions, we have affirmed, precludes further judicial review or adjudication of the issues upon which it passes. While it is therefore no longer open to the parties to challenge the Commission's approval of the Penn-Central merger and inclusion of the three protected lines in N & W, or its order that immediate consummation of the merger should be permitted, any claims for specific relief, such as particularized objections which may arise from specific proposals for consolidation or reduction of facilities or services, are unaffected by the decision in the present cases. Claims not precluded by the present decision may be pursued before the Commission or in the courts or both, as may be appropriate. This applies to Shapp, to the City of Scranton, and to the Borough of Moosic as well as to any other affected interests. The proceedings in the Middle District of Pennsylvania are not before us, except as we have dismissed as moot the petitions challenging that court's stay of its proceedings, and it will be the task of that court to determine the effect of the present decision upon the proceedings before it. Scranton, Shapp, and Moosic may, of course, seek such relief, if any, in that court as may be available and appropriate in light of our decision herein. Finally, we must mention the City of Pottsville, which has appealed to this Court (No. 433). Pottsville's request to intervene in the Moosic action, upon a complaint similar to that of Moosic, was denied by the Middle District of Pennsylvania. Like Moosic, Pottsville had the opportunity—which it failed to seize—to litigate in the Southern District of New York. It appears that a principal basis for denial of Pottsville's request to intervene was the objection interposed by the United States and that this objection will, after our decision in the instant cases, be withdrawn. Upon this representation by the United States, without reference to or any attempt to consider the scope or content of the action in which intervention is sought, or the issues, if any, which may remain for adjudication in that proceeding, we vacate the decision of the District Court for the Middle District of Pennsylvania denying intervention and remand Pottsville's case to that court for further consideration in light of our decision today.
+Two appeals, Nos. 830 and 831, have been taken on behalf of bondholders of the New York, New Haven and Hartford Railroad Company (NH). Since 1961 the NH has been in reorganization proceedings under § 77 of the Bankruptcy Act, 11 U. S. C. § 205. Despite the shelter of the bankruptcy court, it has been on the verge of financial collapse with the attendant risk to continuance of its rail service. The Commission has found that passenger as well as freight service by the NH is a national necessity and that termination of either would lead to distress in Connecticut, Massachusetts, and Rhode Island, and would severely damage New York City and the Nation generally. See New York, New Haven & Hartford Railroad Co., Trustees, Discontinuance of All Interstate Passenger Trains, 327 I. C. C. 151 (1966). The NH competes in a relatively small part of its service area with the New York Central; but in the NH's financial condition, diversion of even a small amount of the Pennsylvania's connecting traffic from the NH to the Central would inflict consequential injury. Even without reference to the hazard of such diversion, inclusion of the NH in the Penn-Central combination is the only possibility that has been advanced by any of the parties —including the complaining bondholders—for continued operation of NH, short of the sheer speculation that the States concerned or the Federal Government might take over the road and its operations. In June 1962, with permission of the bankruptcy court, the New Haven's trustees requested the ICC to make provision under § 5 (2) (d) of the Act for its inclusion in the proposed Penn-Central merger. When the Commission first considered the merger, it stated that we will require all the New Haven railroad [both passenger and freight operations] to be included in the applicants' transaction; and in its initial report it provided that our approval of the merger is conditioned upon such inclusion. 327 I. C. C., at 524, 527. It required that the parties to the merger irrevocably stipulate that they would consent to inclusion upon such terms as might be agreed between the NH and the merger parties or, failing this agreement, upon such terms as the Commission might prescribe with the approval of the bankruptcy court. 327 I. C. C., at 553. The trustees of the NH and the two companies conducted lengthy negotiations and finally arrived at an agreement as to inclusion terms dated April 21, 1966, amended October 4, 1966. In July 1967 the NH bankruptcy court warned that New Haven's cash depletion was so serious that, if the present rate of loss continues, there will be insufficient left by late September to meet the payroll. Subsequent improvement of cash position permitted amendment of this dire prediction so that it was expected that operation could be financed to January 1968. The Commission on August 3, 1967, directed the negotiation of a lease between the New Haven trustees and Penn and Central, to be immediately available upon consummation of the Penn-Central merger. The parties, however, reported that preparation of a lease in time to meet the New Haven's needs was not possible. Thereupon, the Commission ordered a hearing as to whether a lease, loan, or other arrangement should be made to assure the NH's continued operation until its acquisition by Penn-Central. On November 21, 1967, the Commission issued an order, subject to the approval of the bankruptcy court, providing (a) terms for the inclusion of the New Haven in the Penn-Central system upon effectuation of the Penn-Central merger; (b) for the Penn-Central to lend $25,000,000 to the New Haven over a three-year period in return for trustees' certificates; and (c) for the Penn-Central to bear 100% of the operating losses of the New Haven during the first year after the merger, 50% in the second, and 25% in the third, subject to a ceiling of $5,500,000 in each year on the total amount that Penn-Central could be required to absorb and subject to termination upon transfer of the New Haven assets. Acceptance of these terms by Penn and Central is a required condition of approval of their merger. The Commission has retained jurisdiction for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate. The merits of these provisions are not before us. They have not been reviewed by the bankruptcy court or by a statutory district court under the applicable statute. The New Haven trustees and the States of Connecticut, Massachusetts, Rhode Island, and New York, as well as the United States, have filed briefs urging this Court to affirm approval of the Penn-Central merger, citing the urgent need for this in order to salvage the New Haven's operations. The attack, so far as the New Haven is involved, has been launched by Oscar Gruss & Son, a holder of approximately 14% of the NH's first and refunding mortgage bonds and by the Protective Committee for that issue, which intervened in Gruss' action below. (Nos. 830 and 831.) The claim is that because continued operation of the New Haven at a loss involves progressive erosion of the bondholders' security and because the interim arrangement does not assure that Penn-Central will absorb all of the operating losses, we should not permit the Penn-Central merger to be consummated without simultaneous inclusion of the NH. In view of the probable difficulties in reaching agreement for inclusion of the NH which will satisfy its bondholders, it is virtually certain that this would mean lengthy delay during which the NH would not have access to the interim Penn-Central financial aid, and might be faced with collapse of its operations. The Commission, after hearing the bondholders' contention, pointed out that [i]t is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the NH creditors can expect no less because the NH's properties are devoted to a public use. Indeed, the assistance the creditors are receiving from the States and would receive from Penn-Central through the sharing of operating losses would raise some of that burden from their shoulders. Pennsylvania Railroad Company — Merger — New York Central Railroad Company, 331 I. C. C. 643, 704 (1967). The District Court, putting aside questions of the standing of the NH bondholders to attack the Penn-Central merger, affirmed the Commission's rejection of the attack. Continuation of the operations of the NH, which the Commission has found to be essential, can be assured only upon and after effectuation of the merger of the Penn-Central. The bondholders agree that to delay the Penn-Central merger until all proceedings necessary to include the NH have taken place may well mean the end of NH operations. The only realistic way to avoid this is to permit prompt consummation of the Penn-Central merger subject to appropriate conditions respecting the New Haven which Penn-Central will perforce accept by its act of merger. While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders whose interests may or may not be served by the destructive move. While we reject the appeals of the NH bondholders, acceptance or rejection of the terms and conditions on behalf of the NH remains to be determined. The bondholders' objections may be registered and adjudicated in the bankruptcy court or upon judicial review as provided by law. Furthermore, as noted above, the Commission has retained jurisdiction to make further appropriate orders, if necessary, and has provided both that inclusion of the NH in Penn-Central and the making of the loan arrangement on such terms as are prescribed by the Commission, are conditions of approval of the merger. We affirm the District Court's dismissal of the appeals in No. 830 and No. 831.
+The N & W and roads associated with its position (the Chesapeake & Ohio (C & O), Baltimore & Ohio (B & O), and Western Maryland) have filed an appeal (No. 778). In brief and upon argument they stated that they do not object to the Penn-Central merger itself. Their stated position is that they oppose immediate consummation —that is prior to the actual inclusion of E-L, D & H, and B & M in the N & W. They also assail the specific operation and effect of the protective conditions and urge modifications thereof, and attack the basic legality of the conditions as a revenue pool. The assailed protective provisions appear as Appendix G to the Commission's order in the merger case. They are essentially of two types: traffic conditions that require the merged Penn-Central not to change routes, rates, or service in such a way as to divert traffic from the protected lines; and revenue indemnity conditions establishing a formula whereby Penn-Central is to compensate the protected lines in the event of adverse revenue results following the merger. [5] At the time the case was before us last Term, the Commission had withdrawn the revenue indemnity conditions pending further consideration. After our remand, the Commission further considered all the conditions, amended them in some respects not here material, and restored the revenue indemnity conditions. None of the protected roads has lodged objections against these provisions, nor has Penn-Central, and we affirm the District Court's conclusion that they appear to provide adequate interim protection for the three roads in conformity with the purposes insisted upon by the Commission and which this Court sought to ensure by its decision last Term. [6] The objectors, however, attack the protective provisions on three grounds: First, they claim that the revenue indemnity provisions create a pooling agreement proscribed by § 5 (1) of the Interstate Commerce Act, 49 U. S. C. § 5 (1). Second, they say that the conditions give each of the protected lines an incentive to divert traffic to Penn-Central and vice versa. Such traffic diversion, they argue, would be at the expense of the objecting, unprotected, lines. Third, they also assert that the shield which these provisions give the protected lines dilutes their incentive to join the N & W, permits them or some of them unfairly to shop around for better terms of inclusion, and may delay or abort their inclusion in the N & W. We first address ourselves to the argument assailing the indemnity provisions as an illegal pool. As the District Court pointed out, the legislative history of § 5 (1) leads to the conclusion that the section was not intended to apply to cases such as this one, in which the putative revenue pool is not the creation of private parties but is imposed by the Commission itself as a condition to consummation of a merger. Additionally, even if we consider the section applicable in these circumstances, there is no merit to the contention that the protective conditions must be struck down. Section 5 (1) proscribes any contract, agreement, or combination [among] . . . carriers for the pooling or division of traffic, or of service, or of gross or net earnings, or of any portion thereof, unless the Commission finds that such pooling or division will be in the interest of better service to the public or of economy in operation, and will not unduly restrain competition. The Commission has held that, even if the conditions it established were a pooling arrangement, this record clearly supports findings . . . that to protect these carriers clearly is `in the interest of better service to the public'  and  `will not unduly restrain competition.'  330 I. C. C. 328, 345, n. 8. We agree with the District Court that this finding is supported by substantial evidence in the record. The interim protection of the protected lines is, in the Commission's view and under the decision of this Court last Term, essential. These conditions have been adopted for that purpose and we see no reason on the present record to conclude that they are unlawful. In the event that actual experience reveals that the provisions operate inequitably, recourse may be had to the Commission for relief pursuant to its reserved jurisdiction, subject to judicial review. With respect to the contention that, regardless of whether the indemnity provisions constitute a revenue pool, those provisions will induce the protected carriers and Penn-Central improperly to divert traffic to one another and thereby to injure the unprotected roads, the District Court correctly concluded that there is no basis for rejecting the Commission's findings that neither the protected roads nor Penn-Central would have either the motive or the ability to engage in such diversion on any substantial scale. 279 F. Supp., at 328. This conclusion was reached largely because of the ability of the N & W to retaliate and the limitations imposed by economic conditions and geographic facts. The Commission included in its findings a provision that would prohibit the protected carriers from engaging in manipulation, with sanctions if they do, 330 I. C. C., at 355, and it specifically reserved jurisdiction to reopen proceedings and modify the protective conditions in the light of experience. The Commission has also included a general reservation of jurisdiction, under which it could revise the protective conditions. [7] If, in light of experience, improper traffic diversions should develop or, as noted above, if these conditions should otherwise prove to be inequitable, recourse may be had to the Commission under these reservations, subject to judicial review as appropriate. [8] N & W expresses the fear that the traffic and revenue indemnity provisions will be so attractive that the three lines or some of them will prefer to continue under their umbrella, and will not promptly accept the Commission's ticket of admission to the N & W system. The Commission's reserved power appears to be adequate to deter such conduct if and when it becomes abusive. Further, one of the protected lines, the largest of the three (E-L), already has accepted, by stockholder vote, its inclusion in N & W. The board of directors of another (D & H) has recommended to stockholders that inclusion be accepted. [9] In view of these circumstances, the fears expressed by N & W and the other protestants as to the dangers which perpetuation of these provisions will pose must be regarded as speculative. Clearly, if one or more of the protected roads should decline to accept the terms for inclusion specified by the Commission's order, the Commission could be called upon to examine, pursuant to its reserved power, the appropriate action to be taken to terminate or modify the interim protective provisions or otherwise to ensure that the shield supplied to the roads is not converted into a sword. The fears expressed by the protestors fall far short of furnishing a reason for rejecting the District Court's approval of the Commission's order that the Penn-Central merger be immediately consummated. Nor is there merit to N & W's contention that it was error for the Commission to fail to rule, now and forever, that the protected roads may not be included in Penn-Central. Whether or not such permission appears likely, there is no occasion for such contingent foreclosure. Finally, we reject the contention that this Court's prior opinion in this matter now precludes us from permitting consummation of the merger until actual inclusion of the three roads in a larger system. With respect to the inclusion problem, our criticism of the original Commission order ran to the ICC's failure to decide the question over which it had undoubted jurisdiction and which the Commission itself had found to be important to the public interest: the determination, so far as the Commission was empowered, of the ultimate home of the three roads. As this Court said: we can only conclude that it is necessary that the [Commission's] decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger. 386 U. S., at 390. Our decision was not intended to require an indeterminate delay in the consummation of the merger, pending the resolution of the jockeying, negotiating, and fighting among all of the parties concerned and completion of the multitudinous procedures necessarily involved. This would place the public interest as well as the vast majority of the affected private interests at the mercy of decisions not merely of certain corporations whose interests are, in fact, secondary or derivative, but of classes of security holders. It was our intention that the public interest should be served with fairness to all private parties concerned, not that it should be the captive of parties some of whom are understandably engaged in maneuvering solely for the purpose of improving their competitive, strategic, or negotiating positions. There is no provision of law by which the Commission or the courts may compel the three protected roads to accept inclusion in the N & W, as ordered by the Commission, or in any other system: Section 5 (2) (d) of the Act provides: The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest. It does not make provision for compelling an unwilling railroad which is not itself a party to a merger agreement to accept inclusion under the terms the Commission prescribes. Our opinion on the first appeals commanded the Commission to specify the opportunity provided for the smaller roads to be included in a major system, before approving consummation of the Penn-Central merger. It was not intended to give the protected corporations or the creditors or stockholders of each of them, or the N & W relying on their position, a veto over the public interest which the Commission has found to inhere in this merger. We need not pause to discuss in detail N & W's contention that the Commission's findings do not support a conclusion that N & W must proceed with inclusion of fewer than all three of the protected roads, if, for example, B & M does not accept the terms. The original decision in the N & W-Nickel Plate merger proceedings clearly contemplates action by the Commission upon a petition or petitions of one or more of the three roads. 324 I. C. C. 1, 148. Separate petitions were in fact filed by each of these roads. As the District Court concluded, in light of the favorable action already taken by E-L stockholders and the D & H Board of Directors, the possibility of noninclusion of B & M would not be cause for setting aside the Commission's order. [10]
+No. 834 is an appeal on behalf of the Reading railroad. Reading does not ask that the consummation of the merger be stayed. Its complaint is directed to the District Court's affirmance of the Commission's refusal to permit Reading to reopen the record and submit evidence in support of its claim that it should receive protective conditions similar to those the three protected roads were given in Appendix G to the merger order. Reading is controlled by the C & O-B & O system through stock ownership. It has been suggested under the so-called Dereco plan, that the proposed N & W-C & O merger should include the Reading, as well as certain other small roads. Reading did not and does not ask for inclusion in Penn-Central, or for inclusion at this time in N & W along with E-L, D & H, and B & M. It did not offer evidence in the Penn-Central proceedings as to possible traffic diversion, until its tender made after the record had been closed. It now claims, however, that since much of its trackage is paralleled by lines of the Pennsylvania, it will be injured by the merger and should have the benefit of the Appendix G provisions. Reading requests that we remand its case to the Commission for a decision as to whether protective conditions should be established for it. The Commission found, in its original report, that Reading would not be harmed by the merger and that protective conditions were therefore unnecessary. This finding was based in part on a letter submitted by Reading itself to the Commonwealth of Pennsylvania and introduced, without objection from Reading, in evidence before the Commission. Only after the Commission issued its report did Reading object to the finding of no adverse impact upon it as a result of the merger, and then Reading's fear appears to have been chiefly that a finding of no adverse impact might prejudice its eventual attempt to join in the N & W-C & O merger. The Commission held Reading to its original concession that the effect of the merger transaction (without the indemnity conditions) upon them would be inconsequential. 330 I. C. C. 328, 357. In response to Reading's specific concern, the Commission modified its finding of no adverse impact to a finding that no adverse impact had been shown. The District Court upheld this decision and, in addition, concluded that Reading's claim of substantial adverse impact as a result of the Penn-Central merger was unpersuasive on the merits. Ordinarily, we would, without more, concur with the District Court's view. Because of the vastness and complexity of this matter, however, and in order to ensure that whatever substance there may be to Reading's claim is not sacrificed, we sustain the Commission's denial of Reading's submission on condition that it is without prejudice to any proceeding which Reading may hereafter institute, based on actual experience, for relief from undue prejudice caused by the merger.",the merger decision.
+654,107576,2,1,"Most of the parties before us are in accord that the merger is in the public interest and should be consummated as promptly as possible. Those urging immediate consummation before this Court include the Department of Justice and the Commission, the States of Pennsylvania, Connecticut, Rhode Island, New York, Massachusetts, and New Jersey; the Railway Labor Executives' Association; the trustees of the NH; the Pennsylvania and New York Central railroads; B & M; and, in substance, the E-L, D & H, and N & W and its allies. While this consensus has reduced the attacks upon the merits of the merger to a minimum, considering the vast size and implications of the transaction, we must nevertheless address ourselves to the basic merits of the merger as well as to the specific objections that are before us. With respect to the merits of the merger, however, our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute. The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence. See, e. g., Illinois C. R. Co. v. Norfolk & W. R. Co., 385 U. S. 57, 69 (1966). Section 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U. S. C. § 5, sets forth the national transportation policy that is to guide the Commission in its scrutiny of mergers proposed by railroads. The Commission is to approve such proposals, pursuant to the terms of § 5 (2) (b) of that Act, when they are made upon just and reasonable terms and are consistent with the public interest. In reaching its decision, the Commission is to give weight to a number of factors, such as: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected. 49 U. S. C. § 5 (2) (c). We find no basis for reversing the decision of the District Court that the Commission's approval of the merger is in compliance with law and the statutory standards, and is based on adequate findings supported by substantial evidence. We shall first discuss considerations which are basic to the statutory standards, and we shall then turn to certain particular objections which have been made. It is, of course, true that the policy of Congress, set forth in the Transportation Act, to consolidate the railroads of this Nation into a limited number of systems is a variation from our traditional national policy, reflected in the antitrust laws, of insisting upon the primacy of competition as the touchstone of economic regulation. Competition is merely one consideration here. See Seaboard Air Line R. Co. v. United States, 382 U. S. 154 (1965). This departure from the general and familiar standard of industrial regulation emphasizes the need for insistence that, before a rail merger is approved, there must be convincing evidence that it will serve the national interest and that terms are prescribed so that the congressional objective of a rail system serving the public more effectively and efficiently will be carried out. Obviously, not every merger or consolidation that may be agreed upon by private interests can pass the statutory tests. Examination of the record and of the findings in the present case, however, satisfies us that the Commission has properly and lawfully discharged its duties with respect to the merits of the merger. In these elaborate and lengthy proceedings the Commission has considered evidence tendered by others and compiled by its own staff. Upon the aggressive suit of parties representing conflicting interests, it has analyzed every pertinent aspect of the merger and the inclusion order. It has weighed conflicting viewpoints on all of the fundamental issues and many that are tangential. As the Commission concluded, the evidence before it, with negligible exceptions, attested to the probability of significant benefit from the merger, not only to the railroads and their investors, but also to shippers and the general public. The Commission carefully considered the implications of the fact that the Pennsylvania and the New York Central, as individual systems, have operated at a profit, and that there are reasonably good prospects for a continuation of such operation. But it was impressed by the fact that, as individual systems, these profits are not sufficient to put the roads in a position to make improvements important to the national interest, including the maintenance of services which, although essential to the public, are not self-supporting, and furnishing assistance to other roads serving public needs in their general territory. The Commission emphasized that the merger would enable the unified company to accelerate investments in transportation property and continually modernize plant and equipment . . . and provide more and better service. 327 I. C. C. 475, 501-502. And it pointed out that only by permitting the merger would it be possible for the Commission to compel Penn-Central to come to the rescue of the New Haven, as we shall describe. With respect to the lessening of competition where it now exists between the roads to be merged, the Commission pointed out that it will retain continuing power over reductions of service and facilities which are not specifically approved in the merger plans. Such consolidations and abandonments will have to be presented to the Commission for its approval and may be subjected to public criticism and hearings and to conditions or disapproval. It also noted that the rail service by the merged company will remain subject to vigorous competition from other roads, including the N & W and the C & O-B & O systems, and from motor, water, and air carriers. The Commission summarized some of the factors which would act as a restraint upon the merged company as follows: The power of shippers to direct the routing, the availability of numerous routes in a dense network of interline routes, the influence of connecting carriers in preventing a deterioration in service on the joint routes in which they participate, the growing strength of the N & W and C & O-B & O systems, all stand to provide a check against any abuse of economic power by the merged applicants. 327 I. C. C., at 514. Considering the record, and the findings and analysis of the Commission, we see no basis for reversal of the District Court's decision that the Commission's public interest conclusions are adequately supported and are in accordance with law. We find no basis, consonant with the principles governing judicial review, for setting aside the Commission's determination, approved by the District Court, that the public interest directives of the governing statute have been reasonably satisfied: that the transaction is likely to have a beneficial and not an adverse effect upon transportation service to the public; and that, as we shall discuss, appropriate provisions have been made with respect to other railroads that are directly affected by the merger.",in general.
+655,107576,2,2,"The only objectors in this Court to the public interest findings with respect to the merger are certain interests in the State of Pennsylvania. Appeal No. 835 was taken by the City of Scranton and Milton J. Shapp, a stockholder in the Pennsylvania Railroad Company. These parties filed complaints in the Southern District of New York challenging the Commission's original merger decision. After this Court's remand last Term, they were ordered by the District Court to file supplemental complaints. They declined to comply because, having intervened as plaintiffs in a proceeding challenging the merger in the Middle District of Pennsylvania, they chose to rely upon their asserted right to challenge the Commission's merger and inclusion decisions in the Pennsylvania action. After several warnings, their complaints in the New York court were dismissed, with prejudice. The action in the Middle District of Pennsylvania, in which Shapp and Scranton intervened, was filed by the Borough of Moosic on June 26, 1967, to set aside the Commission's orders, entered after our remand, approving the Penn-Central merger and the inclusion of the three protected roads in the N & W system. The Pennsylvania court stayed the Moosic proceeding by order of July 11, 1967, on the request of the United States and the Commission, for the sound purpose of preventing a multiplicity of litigation regarding the Commission's merger and inclusion decisions. Cf. Kansas City Southern R. Co. v. United States, 282 U. S. 760 (1931). Petitions for mandamus or certiorari, on behalf of Moosic (No. 663, Misc.) and Scranton and Shapp (No. 664, Misc.), seeking to challenge the stay of proceedings entered by the Pennsylvania court, have been filed in this Court. Since it now appears that the Middle District of Pennsylvania has dissolved its stay and commenced hearings, it would be pointless for us to review the stay order. Accordingly, the petitions for mandamus or certiorari are dismissed as moot. Scranton, Shapp, and Moosic attack the Commission's merger and inclusion decisions along a broad front and claim error in the Commission's basic findings that the Penn-Central merger and inclusion of the protected lines in N & W are in the public interest. The thrust of this argument is that the Commission failed to consider or properly to evaluate the adverse effect of the Penn-Central merger, considered in light of the order requiring inclusion of the three protected roads in the N & W system, upon certain affected communities in the State of Pennsylvania. We do not agree. In its April 6, 1966, opinion approving the Penn-Central merger, the Commission examined the arguments made by participating communities in great detail and stated that the contentions regarding the adverse effect of the merger on Pennsylvania's economy are not substantiated by the evidence. On this record, the prospects clearly import that the merger will benefit rather than harm the Commonwealth. 327 I. C. C. 475, 492. At the time it made this finding, the Commission was committed to the proposition enunciated in the April 6, 1966, opinion, that the three protected roads would be included in one of the larger systems because of their inability to survive as independent lines. This Court in its decision last Term emphasized the importance of such inclusion. The Commission's conclusion that the net result of the merger would be beneficial to the State of Pennsylvania is bolstered by the strong position taken by the State in this Court that the decision of the District Court for the Southern District of New York should be affirmed. As we discuss, infra, apart from the general and theoretical argument that the Penn-Central merger and the inclusion of the three roads in the N & W system may harm some Pennsylvania interests, complainants' fears of specific injury resulting from reduction of competition by specific curtailments of service now provided by the three protected lines may be asserted in appropriate proceedings when such curtailment is specifically proposed. All other complaints of these parties relate broadly and generally to the fundamental and underlying economic problems that are involved in the merger and inclusion decisions: for example, the anticompetitive consequences of these decisions and the financial situation and prospects of the Pennsylvania and New York Central as independent lines. They were all the subject of extensive evidence and were analyzed at length by the Commission. In dismissing the complaints of Scranton and Shapp for failure to go forward, Judge Friendly noted that [w]hile we entertain no doubt of the sufficiency of this [procedural] ground, we think it well to add that . . . we find no merit in the complaints of Shapp and The City of Scranton. The court remarked that, for the most part, the attacks [of Scranton and Shapp] simply represent disagreement with procedural and policy determinations which Congress has committed to the Commission. 279 F. Supp., at 326, n. 6. We find no reason to reverse the judgment of the District Court for the Southern District of New York for dismissing the complaints of Scranton and Shapp for failure to prosecute, or to set aside its conclusions as to the lack of merit of their claims, particularly in light of the limited function of judicial review of decisions such as those now before us and the opportunity open to them to challenge proposals which may be made for specific curtailment of service. Scranton and Shapp, like the Borough of Moosic, wish now to go forward with their complaints in the Middle District of Pennsylvania, in which they seek an injunction against consummation of the Penn-Central merger and the effectiveness of the inclusion order. But Shapp and Scranton were parties to the New York proceedings and the Borough of Moosic had an adequate opportunity to join in the litigation in that court following the stay of proceedings in the Middle District of Pennsylvania. As we noted, supra, n. 2, all district courts in which actions to review the Commission's findings or for injunctive relief were filed continued their proceedings in deference to the New York court. All parties with standing to challenge the Commission's action might have joined in the New York proceedings. [4] In these circumstances, it necessarily follows that the decision of the New York court which, with certain exceptions, we have affirmed, precludes further judicial review or adjudication of the issues upon which it passes. While it is therefore no longer open to the parties to challenge the Commission's approval of the Penn-Central merger and inclusion of the three protected lines in N & W, or its order that immediate consummation of the merger should be permitted, any claims for specific relief, such as particularized objections which may arise from specific proposals for consolidation or reduction of facilities or services, are unaffected by the decision in the present cases. Claims not precluded by the present decision may be pursued before the Commission or in the courts or both, as may be appropriate. This applies to Shapp, to the City of Scranton, and to the Borough of Moosic as well as to any other affected interests. The proceedings in the Middle District of Pennsylvania are not before us, except as we have dismissed as moot the petitions challenging that court's stay of its proceedings, and it will be the task of that court to determine the effect of the present decision upon the proceedings before it. Scranton, Shapp, and Moosic may, of course, seek such relief, if any, in that court as may be available and appropriate in light of our decision herein. Finally, we must mention the City of Pottsville, which has appealed to this Court (No. 433). Pottsville's request to intervene in the Moosic action, upon a complaint similar to that of Moosic, was denied by the Middle District of Pennsylvania. Like Moosic, Pottsville had the opportunity—which it failed to seize—to litigate in the Southern District of New York. It appears that a principal basis for denial of Pottsville's request to intervene was the objection interposed by the United States and that this objection will, after our decision in the instant cases, be withdrawn. Upon this representation by the United States, without reference to or any attempt to consider the scope or content of the action in which intervention is sought, or the issues, if any, which may remain for adjudication in that proceeding, we vacate the decision of the District Court for the Middle District of Pennsylvania denying intervention and remand Pottsville's case to that court for further consideration in light of our decision today.",objections of certain pennsylvania interests.
+656,107576,2,3,"Two appeals, Nos. 830 and 831, have been taken on behalf of bondholders of the New York, New Haven and Hartford Railroad Company (NH). Since 1961 the NH has been in reorganization proceedings under § 77 of the Bankruptcy Act, 11 U. S. C. § 205. Despite the shelter of the bankruptcy court, it has been on the verge of financial collapse with the attendant risk to continuance of its rail service. The Commission has found that passenger as well as freight service by the NH is a national necessity and that termination of either would lead to distress in Connecticut, Massachusetts, and Rhode Island, and would severely damage New York City and the Nation generally. See New York, New Haven & Hartford Railroad Co., Trustees, Discontinuance of All Interstate Passenger Trains, 327 I. C. C. 151 (1966). The NH competes in a relatively small part of its service area with the New York Central; but in the NH's financial condition, diversion of even a small amount of the Pennsylvania's connecting traffic from the NH to the Central would inflict consequential injury. Even without reference to the hazard of such diversion, inclusion of the NH in the Penn-Central combination is the only possibility that has been advanced by any of the parties —including the complaining bondholders—for continued operation of NH, short of the sheer speculation that the States concerned or the Federal Government might take over the road and its operations. In June 1962, with permission of the bankruptcy court, the New Haven's trustees requested the ICC to make provision under § 5 (2) (d) of the Act for its inclusion in the proposed Penn-Central merger. When the Commission first considered the merger, it stated that we will require all the New Haven railroad [both passenger and freight operations] to be included in the applicants' transaction; and in its initial report it provided that our approval of the merger is conditioned upon such inclusion. 327 I. C. C., at 524, 527. It required that the parties to the merger irrevocably stipulate that they would consent to inclusion upon such terms as might be agreed between the NH and the merger parties or, failing this agreement, upon such terms as the Commission might prescribe with the approval of the bankruptcy court. 327 I. C. C., at 553. The trustees of the NH and the two companies conducted lengthy negotiations and finally arrived at an agreement as to inclusion terms dated April 21, 1966, amended October 4, 1966. In July 1967 the NH bankruptcy court warned that New Haven's cash depletion was so serious that, if the present rate of loss continues, there will be insufficient left by late September to meet the payroll. Subsequent improvement of cash position permitted amendment of this dire prediction so that it was expected that operation could be financed to January 1968. The Commission on August 3, 1967, directed the negotiation of a lease between the New Haven trustees and Penn and Central, to be immediately available upon consummation of the Penn-Central merger. The parties, however, reported that preparation of a lease in time to meet the New Haven's needs was not possible. Thereupon, the Commission ordered a hearing as to whether a lease, loan, or other arrangement should be made to assure the NH's continued operation until its acquisition by Penn-Central. On November 21, 1967, the Commission issued an order, subject to the approval of the bankruptcy court, providing (a) terms for the inclusion of the New Haven in the Penn-Central system upon effectuation of the Penn-Central merger; (b) for the Penn-Central to lend $25,000,000 to the New Haven over a three-year period in return for trustees' certificates; and (c) for the Penn-Central to bear 100% of the operating losses of the New Haven during the first year after the merger, 50% in the second, and 25% in the third, subject to a ceiling of $5,500,000 in each year on the total amount that Penn-Central could be required to absorb and subject to termination upon transfer of the New Haven assets. Acceptance of these terms by Penn and Central is a required condition of approval of their merger. The Commission has retained jurisdiction for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate. The merits of these provisions are not before us. They have not been reviewed by the bankruptcy court or by a statutory district court under the applicable statute. The New Haven trustees and the States of Connecticut, Massachusetts, Rhode Island, and New York, as well as the United States, have filed briefs urging this Court to affirm approval of the Penn-Central merger, citing the urgent need for this in order to salvage the New Haven's operations. The attack, so far as the New Haven is involved, has been launched by Oscar Gruss & Son, a holder of approximately 14% of the NH's first and refunding mortgage bonds and by the Protective Committee for that issue, which intervened in Gruss' action below. (Nos. 830 and 831.) The claim is that because continued operation of the New Haven at a loss involves progressive erosion of the bondholders' security and because the interim arrangement does not assure that Penn-Central will absorb all of the operating losses, we should not permit the Penn-Central merger to be consummated without simultaneous inclusion of the NH. In view of the probable difficulties in reaching agreement for inclusion of the NH which will satisfy its bondholders, it is virtually certain that this would mean lengthy delay during which the NH would not have access to the interim Penn-Central financial aid, and might be faced with collapse of its operations. The Commission, after hearing the bondholders' contention, pointed out that [i]t is a fundamental aspect of our free enterprise economy that private persons assume the risks attached to their investments, and the NH creditors can expect no less because the NH's properties are devoted to a public use. Indeed, the assistance the creditors are receiving from the States and would receive from Penn-Central through the sharing of operating losses would raise some of that burden from their shoulders. Pennsylvania Railroad Company — Merger — New York Central Railroad Company, 331 I. C. C. 643, 704 (1967). The District Court, putting aside questions of the standing of the NH bondholders to attack the Penn-Central merger, affirmed the Commission's rejection of the attack. Continuation of the operations of the NH, which the Commission has found to be essential, can be assured only upon and after effectuation of the merger of the Penn-Central. The bondholders agree that to delay the Penn-Central merger until all proceedings necessary to include the NH have taken place may well mean the end of NH operations. The only realistic way to avoid this is to permit prompt consummation of the Penn-Central merger subject to appropriate conditions respecting the New Haven which Penn-Central will perforce accept by its act of merger. While the rights of the bondholders are entitled to respect, they do not command Procrustean measures. They certainly do not dictate that rail operations vital to the Nation be jettisoned despite the availability of a feasible alternative. The public interest is not merely a pawn to be sacrificed for the strategic purposes or protection of a class of security holders whose interests may or may not be served by the destructive move. While we reject the appeals of the NH bondholders, acceptance or rejection of the terms and conditions on behalf of the NH remains to be determined. The bondholders' objections may be registered and adjudicated in the bankruptcy court or upon judicial review as provided by law. Furthermore, as noted above, the Commission has retained jurisdiction to make further appropriate orders, if necessary, and has provided both that inclusion of the NH in Penn-Central and the making of the loan arrangement on such terms as are prescribed by the Commission, are conditions of approval of the merger. We affirm the District Court's dismissal of the appeals in No. 830 and No. 831.",objections of the new haven's bondholders.
+657,107576,2,4,"The N & W and roads associated with its position (the Chesapeake & Ohio (C & O), Baltimore & Ohio (B & O), and Western Maryland) have filed an appeal (No. 778). In brief and upon argument they stated that they do not object to the Penn-Central merger itself. Their stated position is that they oppose immediate consummation —that is prior to the actual inclusion of E-L, D & H, and B & M in the N & W. They also assail the specific operation and effect of the protective conditions and urge modifications thereof, and attack the basic legality of the conditions as a revenue pool. The assailed protective provisions appear as Appendix G to the Commission's order in the merger case. They are essentially of two types: traffic conditions that require the merged Penn-Central not to change routes, rates, or service in such a way as to divert traffic from the protected lines; and revenue indemnity conditions establishing a formula whereby Penn-Central is to compensate the protected lines in the event of adverse revenue results following the merger. [5] At the time the case was before us last Term, the Commission had withdrawn the revenue indemnity conditions pending further consideration. After our remand, the Commission further considered all the conditions, amended them in some respects not here material, and restored the revenue indemnity conditions. None of the protected roads has lodged objections against these provisions, nor has Penn-Central, and we affirm the District Court's conclusion that they appear to provide adequate interim protection for the three roads in conformity with the purposes insisted upon by the Commission and which this Court sought to ensure by its decision last Term. [6] The objectors, however, attack the protective provisions on three grounds: First, they claim that the revenue indemnity provisions create a pooling agreement proscribed by § 5 (1) of the Interstate Commerce Act, 49 U. S. C. § 5 (1). Second, they say that the conditions give each of the protected lines an incentive to divert traffic to Penn-Central and vice versa. Such traffic diversion, they argue, would be at the expense of the objecting, unprotected, lines. Third, they also assert that the shield which these provisions give the protected lines dilutes their incentive to join the N & W, permits them or some of them unfairly to shop around for better terms of inclusion, and may delay or abort their inclusion in the N & W. We first address ourselves to the argument assailing the indemnity provisions as an illegal pool. As the District Court pointed out, the legislative history of § 5 (1) leads to the conclusion that the section was not intended to apply to cases such as this one, in which the putative revenue pool is not the creation of private parties but is imposed by the Commission itself as a condition to consummation of a merger. Additionally, even if we consider the section applicable in these circumstances, there is no merit to the contention that the protective conditions must be struck down. Section 5 (1) proscribes any contract, agreement, or combination [among] . . . carriers for the pooling or division of traffic, or of service, or of gross or net earnings, or of any portion thereof, unless the Commission finds that such pooling or division will be in the interest of better service to the public or of economy in operation, and will not unduly restrain competition. The Commission has held that, even if the conditions it established were a pooling arrangement, this record clearly supports findings . . . that to protect these carriers clearly is `in the interest of better service to the public'  and  `will not unduly restrain competition.'  330 I. C. C. 328, 345, n. 8. We agree with the District Court that this finding is supported by substantial evidence in the record. The interim protection of the protected lines is, in the Commission's view and under the decision of this Court last Term, essential. These conditions have been adopted for that purpose and we see no reason on the present record to conclude that they are unlawful. In the event that actual experience reveals that the provisions operate inequitably, recourse may be had to the Commission for relief pursuant to its reserved jurisdiction, subject to judicial review. With respect to the contention that, regardless of whether the indemnity provisions constitute a revenue pool, those provisions will induce the protected carriers and Penn-Central improperly to divert traffic to one another and thereby to injure the unprotected roads, the District Court correctly concluded that there is no basis for rejecting the Commission's findings that neither the protected roads nor Penn-Central would have either the motive or the ability to engage in such diversion on any substantial scale. 279 F. Supp., at 328. This conclusion was reached largely because of the ability of the N & W to retaliate and the limitations imposed by economic conditions and geographic facts. The Commission included in its findings a provision that would prohibit the protected carriers from engaging in manipulation, with sanctions if they do, 330 I. C. C., at 355, and it specifically reserved jurisdiction to reopen proceedings and modify the protective conditions in the light of experience. The Commission has also included a general reservation of jurisdiction, under which it could revise the protective conditions. [7] If, in light of experience, improper traffic diversions should develop or, as noted above, if these conditions should otherwise prove to be inequitable, recourse may be had to the Commission under these reservations, subject to judicial review as appropriate. [8] N & W expresses the fear that the traffic and revenue indemnity provisions will be so attractive that the three lines or some of them will prefer to continue under their umbrella, and will not promptly accept the Commission's ticket of admission to the N & W system. The Commission's reserved power appears to be adequate to deter such conduct if and when it becomes abusive. Further, one of the protected lines, the largest of the three (E-L), already has accepted, by stockholder vote, its inclusion in N & W. The board of directors of another (D & H) has recommended to stockholders that inclusion be accepted. [9] In view of these circumstances, the fears expressed by N & W and the other protestants as to the dangers which perpetuation of these provisions will pose must be regarded as speculative. Clearly, if one or more of the protected roads should decline to accept the terms for inclusion specified by the Commission's order, the Commission could be called upon to examine, pursuant to its reserved power, the appropriate action to be taken to terminate or modify the interim protective provisions or otherwise to ensure that the shield supplied to the roads is not converted into a sword. The fears expressed by the protestors fall far short of furnishing a reason for rejecting the District Court's approval of the Commission's order that the Penn-Central merger be immediately consummated. Nor is there merit to N & W's contention that it was error for the Commission to fail to rule, now and forever, that the protected roads may not be included in Penn-Central. Whether or not such permission appears likely, there is no occasion for such contingent foreclosure. Finally, we reject the contention that this Court's prior opinion in this matter now precludes us from permitting consummation of the merger until actual inclusion of the three roads in a larger system. With respect to the inclusion problem, our criticism of the original Commission order ran to the ICC's failure to decide the question over which it had undoubted jurisdiction and which the Commission itself had found to be important to the public interest: the determination, so far as the Commission was empowered, of the ultimate home of the three roads. As this Court said: we can only conclude that it is necessary that the [Commission's] decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger. 386 U. S., at 390. Our decision was not intended to require an indeterminate delay in the consummation of the merger, pending the resolution of the jockeying, negotiating, and fighting among all of the parties concerned and completion of the multitudinous procedures necessarily involved. This would place the public interest as well as the vast majority of the affected private interests at the mercy of decisions not merely of certain corporations whose interests are, in fact, secondary or derivative, but of classes of security holders. It was our intention that the public interest should be served with fairness to all private parties concerned, not that it should be the captive of parties some of whom are understandably engaged in maneuvering solely for the purpose of improving their competitive, strategic, or negotiating positions. There is no provision of law by which the Commission or the courts may compel the three protected roads to accept inclusion in the N & W, as ordered by the Commission, or in any other system: Section 5 (2) (d) of the Act provides: The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest. It does not make provision for compelling an unwilling railroad which is not itself a party to a merger agreement to accept inclusion under the terms the Commission prescribes. Our opinion on the first appeals commanded the Commission to specify the opportunity provided for the smaller roads to be included in a major system, before approving consummation of the Penn-Central merger. It was not intended to give the protected corporations or the creditors or stockholders of each of them, or the N & W relying on their position, a veto over the public interest which the Commission has found to inhere in this merger. We need not pause to discuss in detail N & W's contention that the Commission's findings do not support a conclusion that N & W must proceed with inclusion of fewer than all three of the protected roads, if, for example, B & M does not accept the terms. The original decision in the N & W-Nickel Plate merger proceedings clearly contemplates action by the Commission upon a petition or petitions of one or more of the three roads. 324 I. C. C. 1, 148. Separate petitions were in fact filed by each of these roads. As the District Court concluded, in light of the favorable action already taken by E-L stockholders and the D & H Board of Directors, the possibility of noninclusion of B & M would not be cause for setting aside the Commission's order. [10]",objections based on the provisions made for the protected roads.
+658,107576,2,5,"No. 834 is an appeal on behalf of the Reading railroad. Reading does not ask that the consummation of the merger be stayed. Its complaint is directed to the District Court's affirmance of the Commission's refusal to permit Reading to reopen the record and submit evidence in support of its claim that it should receive protective conditions similar to those the three protected roads were given in Appendix G to the merger order. Reading is controlled by the C & O-B & O system through stock ownership. It has been suggested under the so-called Dereco plan, that the proposed N & W-C & O merger should include the Reading, as well as certain other small roads. Reading did not and does not ask for inclusion in Penn-Central, or for inclusion at this time in N & W along with E-L, D & H, and B & M. It did not offer evidence in the Penn-Central proceedings as to possible traffic diversion, until its tender made after the record had been closed. It now claims, however, that since much of its trackage is paralleled by lines of the Pennsylvania, it will be injured by the merger and should have the benefit of the Appendix G provisions. Reading requests that we remand its case to the Commission for a decision as to whether protective conditions should be established for it. The Commission found, in its original report, that Reading would not be harmed by the merger and that protective conditions were therefore unnecessary. This finding was based in part on a letter submitted by Reading itself to the Commonwealth of Pennsylvania and introduced, without objection from Reading, in evidence before the Commission. Only after the Commission issued its report did Reading object to the finding of no adverse impact upon it as a result of the merger, and then Reading's fear appears to have been chiefly that a finding of no adverse impact might prejudice its eventual attempt to join in the N & W-C & O merger. The Commission held Reading to its original concession that the effect of the merger transaction (without the indemnity conditions) upon them would be inconsequential. 330 I. C. C. 328, 357. In response to Reading's specific concern, the Commission modified its finding of no adverse impact to a finding that no adverse impact had been shown. The District Court upheld this decision and, in addition, concluded that Reading's claim of substantial adverse impact as a result of the Penn-Central merger was unpersuasive on the merits. Ordinarily, we would, without more, concur with the District Court's view. Because of the vastness and complexity of this matter, however, and in order to ensure that whatever substance there may be to Reading's claim is not sacrificed, we sustain the Commission's denial of Reading's submission on condition that it is without prejudice to any proceeding which Reading may hereafter institute, based on actual experience, for relief from undue prejudice caused by the merger.",the position of reading co.
+659,107576,1,2,"Three appeals, No. 779, No. 833, and No. 836, relate to the Commission's order, entered in the N & W-Nickel Plate merger proceedings, prescribing that N & W accept inclusion of the E-L, D & H, and B & M in the N & W system and specifying the terms thereof. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. — Merger, etc., 324 I. C. C. 1 (1964), supplemented, 330 I. C. C. 780, reconsidered, 331 I. C. C. 22 (1967). In 1964 the Commission approved the N & W-Nickel Plate merger subject, among other conditions, to the Commission's retention of jurisdiction for five years to permit the filing of petitions by E-L, D & H, and B & M for inclusion in the N & W system. The Commission's approval was also subject to the condition that N & W give its irrevocable consent to inclusion of the three roads on terms that the ICC would itself prescribe in the absence of agreement among the affected parties. 324 I. C. C. 1, 148. The three lines in due course filed petitions for inclusion. Hearings were held, and, on June 9, 1967, following our remand in the Penn-Central merger case, the Commission made findings and entered its order requiring N & W to include the three roads in its system under terms it prescribed. Appellants are the N & W, the B & M, and a number of E-L bondholders. As we shall discuss, only the N & W appeal raises issues which go broadly to the merits of the Commission's order implementing N & W's duty to accept inclusion of the three roads. B & M seeks remand on the grounds that the terms fixed by the Commission for N & W's offer to acquire the stock of the B & M are inadequate to reflect B & M's value as part of the N & W system. The third appeal, brought by E-L bondholders, turns on the question whether the Commission should have specifically retained jurisdiction to protect the E-L bondholders in the event that N & W attempts after inclusion improperly to divert E-L traffic to itself. We affirm the District Court's action in disallowing the claims of all of these appellants. Reference is made to preceding sections of this opinion for discussion of the bearing of claims respecting the inclusion order upon the Penn-Central proceeding. We first address ourselves to the demands of E-L bondholders for assurance that the reservation of jurisdiction by the Commission would enable them to obtain consideration of unwarranted traffic diversion by N & W, if that should develop. Since N & W will be acquiring stock control of E-L and E-L's bondholders will look to E-L's fortunes for payment and security, the bondholders fear that N & W may not be entirely solicitous of E-L's welfare. Appellants themselves note that the Commission, in adopting the report and order of the officer presiding over the original hearing, has reserved jurisdiction to receive such petitions, institute such investigations, and make such orders to accomplish the objectives and purposes of the plan for inclusion and other terms and conditions prescribed herein . . . . The Commission has also retained jurisdiction for the purpose of making such further order or orders in these proceedings as may be necessary or appropriate, in addition to those orders under jurisdiction expressly retained in the prior reports and orders of the Commission and to those orders which may be issued under section 5 (9) of the Interstate Commerce Act. [11] Supplemental Order issued June 9, 1967. We have no doubt that if, after inclusion of E-L, N & W should engage in a course of conduct which invades the rights of E-L bondholders, the bondholders may apply to the Commission for relief and the Commission's reservation of jurisdiction will enable it to rule upon this complaint and to grant relief, if warranted, subject to judicial review. The other two appeals require somewhat more extended comment. We first note that our opinion at the last Term found adequate support for the Commission's conclusion that the public interest requires inclusion of the three roads in a larger system. As we have previously noted, see supra, at 503-505, the Commission's findings and order with respect to the public interest considerations involved in the inclusion of these lines in the N & W system are in conformity with the statute and are supported by substantial evidence. The attack of N & W and B & M upon the Commission's order centers, not upon the fundamental issues, but upon the particular terms of that order. In brief, the Commission has provided that N & W will purchase stock control of E-L and B & M through wholly owned subsidiaries. It has fixed the basis for such purchase in relation to the experienced income of the lines, their earnings having been adjusted for various factors including savings and gains which the Commission found would result from inclusion in the N & W system. The Commission has satisfied itself that traffic losses to the merged Penn-Central would be offset by benefits to N & W not otherwise taken into account. The shareholders of these roads are to receive stock of a newly created subsidiary of N & W, which will eventually be convertible into N & W common stock. In the case of D & H, the means of valuation was the same as for the other protected lines, but N & W is to pay for D & H assets either in cash or with a note and N & W stock. This is the first time in the Commission's history that it has undertaken to replace the bargaining session. It did so here pursuant to the N & W stipulation, which was accepted by N & W as a condition to the N & W-Nickel Plate merger, and in response to the exigencies of the situation emphasized by this Court's decision at our last Term. As we have noted above, the E-L stockholders have voted approval of the inclusion terms. The D & H Board of Directors has recommended approval to its stockholders. N & W complains that the price set for inclusion of the three lines is too high and that some other aspects of inclusion are arbitrary. B & M, on the other hand, complains that the price set for its inclusion is too low. The District Court affirmed the Commission's findings and conclusions, and in the exercise of our reviewing function we find no basis for reversing that court's decision. The method for determining the value and exchange ratio which the Commission adopted, and which we have briefly described, is not attacked. It is a method that is reasonably conventional and generally accepted, always subject to the modifications and adaptations required by individual cases, and we see no basis for holding it erroneous as a matter of law. The attack that is launched is upon factors of particularized judgment and the weight to be ascribed to various values. These are matters as to which reasonable men may reasonably differ in detail, and we see no basis for setting aside the Commission's conclusions as sustained by the District Court. In setting inclusion terms, the Commission was dealing with complicated and elusive predictions about probable traffic patterns following the Penn-Central merger and the inclusion decision. We are no more competent than the Commission and the District Court to ascertain the accuracy of those predictions. We deem it our function, in the complexities of cases such as these, to review the judgment of the District Court with respect to agency actions to make certain that those actions are based upon substantial evidence and to guard against the possibility of gross error or unfairness. If we find those conclusions to be equitable and rational, it is not for us to second-guess each step in the Commission's process of deliberation. N & W's attack upon the inclusion order centers upon its disagreement with the Commission's findings as to prospective earnings of the three roads as part of the N & W system. It argues that the Commission had no basis for concluding that the earnings of E-L, D & H, and B & M, as subsidiaries of N & W, would be adequate to assure their viability. [12] It asserts that the Commission has made various invalid adjustments of actual earnings and failed to make others. This, N & W says, is the principal area of dispute in these proceedings. On the other hand, the B & M contends that the Commission's findings substantially underestimate the savings which should be credited to it as an earnings adjustment, and that, therefore, the terms for its inclusion are unjust. Specifically, it urges that the Commission underestimated the probable amount of savings resulting from N & W control and the coordination of operations and equipment repair facilities and reduction of administrative expenses. The Commission, however, accepted and relied on figures submitted by B & M's own witness. B & M now assails these figures, but obviously the Commission was entitled to rely upon them. The District Court examined in some detail the contentions of the parties attacking the financial terms of the inclusion order. We have reviewed the findings of the Commission in light of the evidence of record and the District Court's analysis, and we find no basis for reversing the District Court's judgment. The terms fixed by the Commission are clearly within the area of fairness and equity. Although B & M argues forcefully that the Commission underestimated the savings that should redound to its credit, we cannot say in the circumstances that the order should be reversed and remanded in this respect. It must be noted, as we have discussed in connection with appeals relating to the Penn-Central merger decision, that the inclusion order has no compulsive or coercive effect upon the roads to be included. Unless and until modified by the Commission, it remains available to the protected lines upon the terms which it specifies and which the District Court found to be fair and equitable. [13] Only one other point of the N & W attack upon the inclusion order requires comment. N & W objects to the conditions prescribed by the Commission to protect the interests of the employees affected by the order. We note that those conditions, protecting employees of the protected lines, are the same as the conditions set by the Commission for N & W's employees at the time of the N & W-Nickel Plate merger. As the District Court held, [t]he Commission acted within its powers in requiring N & W to protect employees of the three roads as thoroughly as those of the roads it was permitted to absorb only on the condition that it would accept these lines if the Commission so directed. 279 F. Supp., at 337. [14]",inclusion decision.
+660,109465,1,1,"This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams. Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976); United States v. District Court for Eagle County, 401 U. S. 520, 522-523 (1971); Arizona v. California, 373 U. S. 546, 601 (1963); FPC v. Oregon, 349 U. S. 435 (1955); United States v. Powers, 305 U. S. 527 (1939); Winters v. United States, 207 U. S. 564 (1908). Nevada argues that the cases establishing the doctrine of federally reserved water rights articulate an equitable doctrine calling for a balancing of competing interests. However, an examination of those cases shows they do not analyze the doctrine in terms of a balancing test. For example, in Winters v. United States, supra , the Court did not mention the use made of the water by the upstream landowners in sustaining an injunction barring their diversions of the water. The Statement of the Case in Winters notes that the upstream users were homesteaders who had invested heavily in dams to divert the water to irrigate their land, not an unimportant interest. The Court held that when the Federal Government reserves land, by implication it reserves water rights sufficient to accomplish the purposes of the reservation. [4] In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created. See, e. g., Arizona v. California, supra, at 599-601; Winters v. United States, supra, at 576. Both the District Court and the Court of Appeals held that the 1952 Proclamation expressed an intention to reserve unappropriated water, and we agree. [5] The Proclamation discussed the pool in Devil's Hole in four of the five preambles and recited that the pool . . . should be given special protection. Since a pool is a body of water, the protection contemplated is meaningful only if the water remains; the water right reserved by the 1952 Proclamation was thus explicit, not implied. [6] Also explicit in the 1952 Proclamation is the authority of the Director of the Park Service to manage the lands of Devil's Hole Monument as provided in the act of Congress entitled `An Act to establish a National Park Service, and for other purposes,' approved August 25, 1916 (39 Stat. 535; 16 U. S. C. 1-3) . . . . The National Park Service Act provides that the fundamental purpose of the said parks, monuments, and reservations is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 39 Stat. 535, 16 U. S. C. § 1. The implied-reservation-of-water-rights doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. Arizona v. California, supra, at 600-601. Here the purpose of reserving Devil's Hole Monument is preservation of the pool. Devil's Hole was reserved for the preservation of the unusual features of scenic, scientific, and educational interest. The Proclamation notes that the pool contains a peculiar race of desert fish . . . which is found nowhere else in the world and that the pool is of . . . outstanding scientific importance . . . . The pool need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. The fish are one of the features of scientific interest. The preamble noting the scientific interest of the pool follows the preamble describing the fish as unique; the Proclamation must be read in its entirety. Thus, as the District Court has correctly determined, the level of the pool may be permitted to drop to the extent that the drop does not impair the scientific value of the pool as the natural habitat of the species sought to be preserved. The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil's Hole, thus implementing the stated objectives of the Proclamation. Petitioners in both cases argue that even if the intent of the 1952 Proclamation were to maintain the pool, the American Antiquities Preservation Act did not give the President authority to reserve a pool. Under that Act, according to the Cappaert petitioners, the President may reserve federal lands only to protect archeologic sites. However, the language of the Act which authorizes the President to proclaim as national monuments historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government is not so limited. The pool in Devil's Hole and its rare inhabitants are objects of historic or scientific interest. See generally Cameron v. United States, 252 U. S. 450, 451-456 (1920).",Reserved-Water-Rights Doctrine
+661,109465,1,2,"No cases of this Court have applied the doctrine of implied reservation of water rights to groundwater. Nevada argues that the implied-reservation doctrine is limited to surface water. Here, however, the water in the pool is surface water. The federal water rights were being depleted because, as the evidence showed, the [g]roundwater and surface water are physically interrelated as integral parts of the hydrologic cycle. C. Corker, Groundwater Law, Management and Administration, National Water Commission Legal Study No. 6, p. xxiv (1971). Here the Cappaerts are causing the water level in Devil's Hole to drop by their heavy pumping. See Corker, supra; see also Water Policies for the Future —Final Report to the President and to the Congress of the United States by the National Water Commission 233 (1973). It appears that Nevada itself may recognize the potential interrelationship between surface and ground water since Nevada applies the law of prior appropriation to both. Nev. Rev. Stat. §§ 533.010 et seq., 534.020, 534.080, 534.090 (1973). See generally F. Trelease, Water Law—Resource Use and Environmental Protection 457-552 (2d ed. 1974); C. Meyers & A. Tarlock, Water Resource Management 553-634 (1971). Thus, since the implied-reservation-of-water-rights doctrine is based on the necessity of water for the purpose of the federal reservation, we hold that the United States can protect its water from subsequent diversion, whether the diversion is of surface or ground water. [7]",Groundwater
+662,109465,1,3,"Petitioners in both cases argue that the Federal Government must perfect its implied water rights according to state law. They contend that the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, and its predecessors [8] severed nonnavigable water from public land, subjecting it to state law. That Act, however, provides that patentees of public land acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 162 (1935); see Morreale, Federal-State Conflicts Over Western Waters—A Decade of Attempted Clarifying Legislation, 20 Rutgers L. Rev. 423, 432 (1966). [9] This Court held in FPC v. Oregon, 349 U. S. 435, 448 (1955), that the Desert Land Act does not apply to water rights on federally reserved land. [10] The Cappaert petitioners argue that FPC v. Oregon, supra , must be overruled since, inter alia, the Court was unaware at the time that case was decided that there was no longer any public land available for homesteading. However, whether or not there was public land available for homesteading in 1955 is irrelevant to the meaning of the 1877 Act. The Desert Land Act still provides that the water rights of those who received their land from federal patents are to be governed by state law. That there may be no more federal land available for homesteading does not mean the Desert Land Act now applies to all federal land. Since the Act is inapplicable, determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation; the fact that the water rights here reserved apply to nonnavigable rather than navigable waters is thus irrelevant. Since FPC v. Oregon, supra , was decided, several bills have been introduced in Congress to subject at least some federal water uses to state appropriation doctrines, but none has been enacted into law. The most recent bill, S. 28, 92d Cong., 1st Sess., was introduced on January 25, 1971, and reintroduced under the same number in the 93d Cong., 1st Sess., on January 4, 1973. See Morreale, supra. Federal water rights are not dependent upon state law or state procedures and they need not be adjudicated only in state courts; federal courts have jurisdiction under 28 U. S. C. § 1345 to adjudicate the water rights claims of the United States. [11] Colorado River Water Cons. Dist. v. United States, 424 U. S., at 807-809. The McCarran Amendment, 66 Stat. 560, 43 U. S. C. § 666, did not repeal § 1345 jurisdiction as applied to water rights. 424 U. S., at 808-809. Nor, as Nevada suggests, is the McCarran Amendment a substantive statute, requiring the United States to perfect its water rights in the state forum like all other land owners. Brief for Nevada 37. The McCarran Amendment waives United States sovereign immunity should the United States be joined as a party in a state-court general water rights' adjudication, Colorado River Water Cons. Dist. v. United States, supra, at 808, and the policy evinced by the Amendment may, in the appropriate case, require the United States to adjudicate its water rights in state forums. Id., at 817-820.",State Law
+663,109465,1,4,"Finally, Nevada, as intervenor in the Cappaerts' suit, argued in the Court of Appeals that the United States was barred by res judicata or collateral estoppel from litigating its water-rights claim in federal court. Nevada bases this conclusion on the fact that the National Park Service filed a protest to the Cappaerts' pumping permit application in the state administrative proceeding. Since we reject that contention, we need not consider whether the issue was timely and properly raised. We note only that the United States was not made a party to the state administrative proceeding; [12] nor was the United States in privity with the Cappaerts. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, 402 U. S. 313, 320-326 (1971). When the United States appeared to protest in the state proceeding it did not assert any federal water-rights claims, nor did it seek to adjudicate any claims until the hydrological studies as to the effects of the Cappaerts' pumping had been completed. [13] The fact that the United States did not attempt to adjudicate its water rights in the state proceeding is not significant since the United States was not a party. The State Water Engineer's decree explicitly stated that it was subject to existing rights; thus, the issue raised in the District Court was not decided in the proceedings before the State Engineer. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, supra, at 323. Cf. United States v. Utah Constr. & Min. Co., 384 U. S. 394, 422 (1966). We hold, therefore, that as of 1952 when the United States reserved Devil's Hole, it acquired by reservation water rights in unappropriated appurtenant water sufficient to maintain the level of the pool to preserve its scientific value and thereby implement Proclamation No. 2961. Accordingly, the judgment of the Court of Appeals is Affirmed.",Res Judicata
+664,109481,2,1,"The Court of Appeals concluded that two omitted facts relating to National's potential influence, or control, over the management of TSC were material as a matter of law. First, the proxy statement failed to state that at the time the statement was issued, the chairman of the TSC board of directors was Stanley Yarmuth, National's president and chief executive officer, and the chairman of the TSC executive committee was Charles Simonelli, National's executive vice president. Second, the statement did not disclose that in filing reports required by the SEC, both TSC and National had indicated that National may be deemed to be a `parent' of TSC as that term is defined in the Rules and Regulations under the Securities Act of 1933. App. 490, 512, 517. [13] The Court of Appeals noted that TSC shareholders were relying on the TSC board of directors to negotiate on their behalf for the best possible rate of exchange with National. It then concluded that the omitted facts were material because they were persuasive indicators that the TSC board was in fact under the control of National, and that National thus `sat on both sides of the table' in setting the terms of the exchange. 512 F. 2d, at 333. We do not agree that the omission of these facts, when viewed against the disclosures contained in the proxy statement, warrants the entry of summary judgment against TSC and National on this record. Our conclusion is the same whether the omissions are considered separately or together. The proxy statement prominently displayed the facts that National owned 34% of the outstanding shares in TSC, and that no other person owned more than 10%. App. 262-263, 267. It also prominently revealed that 5 out of 10 TSC directors were National nominees, and it recited the positions of those National nominees with National—indicating, among other things, that Stanley Yarmuth was president and a director of National, and that Charles Simonelli was executive vice president and a director of National. Id., at 267. These disclosures clearly revealed the nature of National's relationship with TSC and alerted the reasonable shareholder to the fact that National exercised a degree of influence over TSC. In view of these disclosures, we certainly cannot say that the additional facts that Yarmuth was chairman of the TSC board of directors and Simonelli chairman of its executive committee were, on this record, so obviously important that reasonable minds could not differ on their materiality. Nor can we say that it was materially misleading as a matter of law for TSC and National to have omitted reference to SEC filings indicating that National may be deemed to be a parent of TSC. As we have already noted, both the District Court and the Court of Appeals concluded, in denying summary judgment on the Rule 14a-3 claim, that there was a genuine issue of fact as to whether National actually controlled TSC at the time of the proxy solicitation. We must assume for present purposes, then, that National did not control TSC. On that assumption, TSC and National obviously had no duty to state without qualification that control did exist. If the proxy statements were to disclose the conclusory statements in the SEC filings that National may be deemed to be a parent of TSC, then it would have been appropriate, if not necessary, for the statement to have included a disclaimer of National control over TSC or a disclaimer of knowledge as to whether National controlled TSC. [14] The net contribution of including the contents of the SEC filings accompanied by such disclaimers is not of such obvious significance, in view of the other facts contained in the proxy statement, that their exclusion renders the statement materially misleading as a matter of law. [15]",National's Control of TSC
+665,109481,2,2,"The Court of Appeals also found that the failure to disclose two sets of facts rendered the proxy statement materially deficient in its presentation of the favorability of the terms of the proposed transaction to TSC shareholders. The first omission was of information, described by the Court of Appeals as bad news for TSC shareholders, contained in a letter from an investment banking firm whose earlier favorable opinion of the fairness of the proposed transaction was reported in the proxy statement. The second omission related to purchases of National common stock by National and by Madison Fund, Inc., a large mutual fund, during the two years prior to the issuance of the proxy statement.
+The proxy statement revealed that the investment banking firm of Hornblower & Weeks-Hemphill, Noyes had rendered a favorable opinion on the fairness to TSC shareholders of the terms for the exchange of TSC shares for National securities. In that opinion, the proxy statement explained, the firm had considered, among other things, the current market prices of the securities of both corporations, the high redemption price of the National Series B preferred stock, the dividend and debt service requirements of both corporations, the substantial premium over current market values represented by the securities being offered to TSC stockholders, and the increased dividend income. App. 267. The Court of Appeals focused upon the reference to the substantial premium over current market values represented by the securities being offered to TSC stockholders, and noted that any TSC shareholder could calculate the apparent premium by reference to the table of current market prices that appeared four pages later in the proxy statement. Id., at 271. On the basis of the recited closing prices for November 7, 1969, five days before the issuance of the proxy statement, the apparent premiums were as follows. Each share of TSC Series 1 preferred, which closed at $12, would bring National Series B preferred stock and National warrants worth $15.23—for a premium of $3.23, or 27% of the market value of the TSC Series 1 preferred. Each share of TSC common stock, which closed at $13.25, would bring National Series B preferred stock and National warrants worth $16.19—for a premium of $2.94, or 22% of the market value of TSC common. [16] The closing price of the National warrants on November 7, 1969, was, as indicated in the proxy statement, $5.25. The TSC shareholders were misled, the Court of Appeals concluded, by the proxy statement's failure to disclose that in a communication two weeks after its favorable opinion letter, the Hornblower firm revealed that its determination of the fairness of the offer to TSC was based on the conclusion that the value of the warrants involved in the transaction would not be their current market price, but approximately $3.50. If the warrants were valued at $3.50 rather than $5.25, and the other securities valued at the November 7 closing price, the court figured, the apparent premium would be substantially reduced—from $3.23 (27%) to $1.48 (12%) in the case of the TSC preferred, and from $2.94 (22%) to $0.31 (2%) in the case of TSC common. In simple terms, the court concluded: TSC and National had received some good news and some bad news from the Hornblower firm. They chose to publish the good news and omit the bad news. 512 F. 2d, at 335. It would appear, however, that the subsequent communication from the Hornblower firm, which the Court of Appeals felt contained bad news, contained nothing new at all. At the TSC board of directors meeting held on October 16, 1969, the date of the initial Hornblower opinion letter, Blancke Noyes, a TSC director and a partner in the Hornblower firm, had pointed out the likelihood of a decline in the market price of National warrants with the issuance of the additional warrants involved in the exchange, and reaffirmed his conclusion that the exchange offer was a fair one nevertheless. The subsequent Hornblower letter, signed by Mr. Noyes, purported merely to explain the basis of the calculations underlying the favorable opinion rendered in the October 16 letter. In advising TSC as to the fairness of the offer from [National], Mr. Noyes wrote, we concluded that the warrants in question had a value of approximately $3.50. [17] On its face, then, the subsequent letter from Hornblower does not appear to have contained anything to alter the favorable opinion rendered in the October 16 letter—including the conclusion that the securities being offered to TSC shareholders represented a substantial premium over current market values. The real question, though, is not whether the subsequent Hornblower letter contained anything that altered the Hornblower opinion in any way. It is, rather, whether the advice given at the October 16 meeting, and reduced to more precise terms in the subsequent Hornblower letter—that there might be a decline in the market price of the National warrants—had to be disclosed in order to clarify the import of the proxy statement's reference to the substantial premium over current market values represented by the securities being offered to TSC stockholders. We note initially that the proxy statement referred to the substantial premium as but one of several factors considered by Hornblower in rendering its favorable opinion of the terms of exchange. Still, we cannot assume that a TSC shareholder would focus only on the bottom line of the opinion to the exclusion of the considerations that produced it. TSC and National insist that the reference to a substantial premium required no clarification or supplementation, for the reason that there was a substantial premium even if the National warrants are assumed to have been worth $3.50. In reaching the contrary conclusion, the Court of Appeals, they contend, ignored the rise in price of TSC securities between early October 1969, when the exchange ratio was set, and November 7, 1969—a rise in price that they suggest was a result of the favorable exchange ratio's becoming public knowledge. When the proxy statement was mailed, TSC and National contend, the market price of TSC securities already reflected a portion of the premium to which Hornblower had referred in rendering its favorable opinion of the terms of exchange. Thus, they note that Hornblower assessed the fairness of the proposed transaction by reference to early October market prices of TSC preferred, TSC common, and National preferred. On the basis of those prices and a $3.50 value for the National warrants involved in the exchange, TSC and National contend that the premium was substantial. Each share of TSC preferred, selling in early October at $11, would bring National preferred stock and warrants worth $13.10—for a premium of $2.10, or 19%. And each share of TSC common, selling in early October at $11.63, would bring National preferred stock and warrants worth $13.25—for a premium of $1.62, or 14%. [18] We certainly cannot say as a matter of law that these premiums were not substantial. And if, as we must assume in considering the appropriateness of summary judgment, the increase in price of TSC's securities from early October to November 7 reflected in large part the market's reaction to the terms of the proposed exchange, it was not materially misleading as a matter of law for the proxy statement to refer to the existence of a substantial premium. There remains the possibility, however, that although TSC and National may be correct in urging the existence of a substantial premium based upon a $3.50 value for the National warrants and the early October market prices of the other securities involved in the transaction, the proxy statement misled the TSC shareholder to calculate a premium substantially in excess of that premium. The premiums apparent from early October market prices and a $3.50 value for the National warrants—19% on TSC preferred and 14% on TSC common—are certainly less than those that would be derived through use of the November 7 closing prices listed in the proxy statement—27% on TSC preferred and 22% on TSC common. But we are unwilling to sustain a grant of summary judgment to Northway on that basis. To do so we would have to conclude as a matter of law, first, that the proxy statement would have misled the TSC shareholder to calculate his premium on the basis of November 7 market prices, and second, that the difference between that premium and that which would be apparent from early October prices and a $3.50 value for the National warrants was material. These are questions we think best left to the trier of fact.
+The final omission that concerns us relates to purchases of National common stock by National and by Madison Fund, Inc., a mutual fund. Northway notes that National's board chairman was a director of Madison, and that Madison's president and chief executive, Edward Merkle, was employed by National pursuant to an agreement obligating him to provide at least one day per month for such duties as National might request. [19] Northway contends that the proxy statement, having called the TSC shareholders' attention to the market prices of the securities involved in the proposed transaction, should have revealed substantial purchases of National common stock made by National and Madison during the two years prior to the issuance of the proxy statement. [20] In particular, Northway contends that the TSC shareholders should, as a matter of law, have been informed that National and Madison purchases accounted for 8.5% of all reported transactions in National common stock during the period between National's acquisition of the Schmidt interests and the proxy solicitation. The theory behind Northway's contention is that disclosure of these purchases would have pointed to the existence, or at least the possible existence, of conspiratorial manipulation of the price of National common stock, which would have had an effect on the market price of the National preferred stock and warrants involved in the proposed transaction. [21] Before the District Court, Northway attempted to demonstrate that the National and Madison purchases were coordinated. The District Court concluded, however, that there was a genuine issue of fact as to whether there was coordination. Finding that a showing of coordination was essential to Northway's theory, the District Court denied summary judgment. The Court of Appeals agreed with the District Court that collusion is not conclusively established. 512 F. 2d, at 336. But observing that it is certainly suggested, ibid., the court concluded that the failure to disclose the purchases was materially misleading as a matter of law. The court explained: Stockholders contemplating an offer involving preferred shares convertible to common stock and warrants for the purchase of common stock must be informed of circumstances which tend to indicate that the current selling price of the common stock involved may be affected by apparent market manipulations. It was for the shareholders to determine whether the market price of the common shares was relevant to their evaluation of the convertible preferred shares and warrants, or whether the activities of Madison and National actually amounted to manipulation at all. Ibid. In short, while the Court of Appeals viewed the purchases as significant only insofar as they suggested manipulation of the price of National securities, and acknowledged the existence of a genuine issue of fact as to whether there was any manipulation, the court nevertheless required disclosure to enable the shareholders to decide whether there was manipulation or not. The Court of Appeals' approach would sanction the imposition of civil liability on a theory that undisclosed information may suggest the existence of market manipulation, even if the responsible corporate officials knew that there was in fact no market manipulation. We do not agree that Rule 14a-9 requires such a result. Rule 14a-9 is concerned only with whether a proxy statement is misleading with respect to its presentation of material facts. If, as we must assume on a motion for summary judgment, there was no collusion or manipulation whatsoever in the National and Madison purchases—that is, if the purchases were made wholly independently for proper corporate and investment purposes, then by Northway's implicit acknowledgment they had no bearing on the soundness and reliability of the market prices listed in the proxy statement, [22] and it cannot have been materially misleading to fail to disclose them. [23] That is not to say, of course, that the SEC could not enact a rule specifically requiring the disclosure of purchases such as were involved in this case, without regard to whether the purchases can be shown to have been collusive or manipulative. We simply hold that if liability is to be imposed in this case upon a theory that it was misleading to fail to disclose purchases suggestive of market manipulation, there must be some showing that there was in fact market manipulation. [24]",Favorability of the Terms to TSC Shareholders
+666,107402,1,2,"The Penn-Central merger has been under study and discussion by the Commission for some 10 years. After the initial study was completed in 1959, Central withdrew from the plan and began negotiations for a merger with the Chesapeake and Ohio Railway Company (C & O) for joint control of the Baltimore and Ohio Railroad Company (B & O). However, when at a later date C & O had contracted for the purchase of some 61% of B & O stock, Central gave up its plan and renewed negotiations with Penn. The two roads signed an agreement of merger in 1962. The New York, New Haven and Hartford Railroad Company (NH) approached Penn and Central for inclusion in the plan but was given a deaf ear. The merger agreement provided that all properties, franchises, etc. (permitted by respective state law), would be transferred to the merged company and appropriate stock exchange, debt arrangements, etc., effected. As the Commission found, the merger would create an hour-glass shaped system flared on the east from Montreal, Canada, through Boston, Mass., to Norfolk, Va., and on the west from Mackinaw City, Mich., through Chicago, Ill., to St. Louis, Mo. 327 I. C. C., at 489. It would operate some 19,600 miles of road in 14 States between the Great Lakes, with a splash in Canada on the north, and the Ohio and Potomac Rivers on the south. After the two systems are connected as planned and new and expanded yards are provided, the merger will consolidate trains now moving separately between the same points. The combined systems will have a substantial amount of parallel trackage and routes, with 160 common points or junctions. Terminals will be consolidated, present interchanges between the two systems will be eliminated and only the most efficient yards and facilities of the respective systems will be utilized. The merger plan calls for 98 projects that will intermesh their long-haul traffic at key points, creating a nonstop service between the principal cities with locals covering the multiple-stop routes and branch lines. It is estimated that enormous savings in transit time can be effected. Certain chosen yards—such as Selkirk—will be remodeled and modernized into electronically operated yards with capacities of from 5,000 to 10,000 cars per day. The through trains to the West will be formed at Selkirk and those from the West broken up for dispatch to terminals or consignees in New England, New York, and northern New Jersey. The plan calls for some New York City traffic to be routed over Central's Hudson River East Shore line to lessen cost. By consolidating traffic on fast through lines, filling out trains, re-routing over the most efficient routes, eliminating some interchanges and effecting other improvements, the merged company will reduce by 6,000,000 the number of train miles operated. A single-line service will be operated between more points, with less circuity and less switching. The plan also calls for 31 daily trains to be withdrawn from the Pennsylvania with seven new ones added, leaving a total of 319 trains daily. The Pennsylvania is the largest and Central the third largest railroad in the Northeastern Region. Together the operating revenue of the two roads was over $1,500,000,000 in 1965. Their net income in 1964 totaled almost $57,000,000 and in 1965 ran in excess of $75,000,000. In 1963 the total net was barely $16,000,000. The cost of operation of the two systems runs $90,000,000 a month and their working capital was some $72,000,000 in 1965. As of December 31, 1963, their combined investments were $1,242,000,000. The Pennsylvania and Central systems are each made up of underlying corporations. As of the date of the Examiner's Report the merged company would have ownership interest in 182 corporations and 10 railroads under lease. Thirty-six of the corporations are rail carriers, in six of which the merged company would have a voting control. All six are Class I railroads. It would likewise control six Class II railroads, five switching and terminal railroads, a holding company, five car-leasing companies, four common carriers and 34 noncarrier corporations. The NH [2] is the sixth largest railroad in the North-eastern Region and the largest in New England. On a national basis it ranks fourth among passenger-carrying railroads and is one of the largest nontrunkline freight roads. It has some 1,500 miles of railroad in four States—Massachusetts, Rhode Island, Connecticut, and part of New York. NH has been in reorganization under § 77 of the Bankruptcy Act, 47 Stat. 1474, as amended, 11 U. S. C. § 205, since 1961. [3] While its gross revenues have run in excess of $120,000,000, it has run deficits since 1958. During the trusteeship its deficits have run from $12,700,000 in 1962 to $15,100,000 in 1965.","The merger, its background, its participants and relative position."
+667,111076,1,1,"No. 82-1861 Supreme Court of the United States October 31, 1983 On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit. The petition for writ of certiorari is denied.","Louise McCARREN, et al.v.TOWN OF SPRINGFIELD, VERMONT and Vermont Public Power Supply Authority"
+668,111255,1,4,Reversed. JUSTICE REHNQUIST concurs in the judgment. THE CHIEF JUSTICE and JUSTICE BLACKMUN took no part in the decision of this case.,The judgment of the Court of Appeals is
+669,108962,1,4,"Without passing on the merits of Mrs. Murray's contention that she will suffer irreparable harm if the sought-for-relief is not granted (a task for the District Court here), we note that there was a determination that such a loss of employment could be `irreparable harm' in Reeber v. Rossell (1950), a case quite similar to that at bar. We agree with the Reeber court that such a loss of employment can amount to irreparable harm, and that injunctive relief may be a proper remedy pending the final administrative determination of the validity of the discharge by the Civil Service Commission. [54] At another point in its opinion, the Court of Appeals said: As the District Court here felt that the hearing on the motion for the preliminary injunction could not be completed until Mr. Sanders was produced to testify, it was proper for him to continue the stay, in order to preserve the status quo pending the completion of the hearing. [55] The court in its supplemental opinion filed after the Government's petition for rehearing further expanded its view of this aspect of the case: The court's opinion does not hold, and the trial judge has not yet held, that interim relief is proper in Mrs. Murray's case, but we do hold that the trial judge may consider granting such relief, as this is inherent in his historical equitable role. [56] In form the order entered by the District Court now before us is a continuation of the temporary restraining order originally issued by that court. [57] It is clear from the Court of Appeals' opinion that that court so construed it. But since the order finally settled upon by the District Court was in no way limited in time, the provisions of Fed. Rule Civ. Proc. 65 come into play. That Rule states, in part: (b) A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition . . . . Every temporary restraining order granted without notice . . . shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The Court of Appeals whose judgment we are reviewing has held that a temporary restraining order continued beyond the time permissible under Rule 65 must be treated as a preliminary injunction, and must conform to the standards applicable to preliminary injunctions. National Mediation Board v. Airline Pilots Assn., 116 U. S. App. D. C. 300, 323 F. 2d 305 (1963). We believe that this analysis is correct, at least in the type of situation presented here, and comports with general principles imposing strict limitations on the scope of temporary restraining orders. [58] A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding. In this case, where an adversary hearing has been held, and the court's basis for issuing the order strongly challenged, classification of the potentially unlimited order as a temporary restraining order seems particularly unjustified. Therefore we view the order at issue here as a preliminary injunction. We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury. [59] This Court has stated that [t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies, Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 506-507 (1959), and the Court of Appeals itself in Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958), has recognized as much. Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury. [60] We are therefore somewhat puzzled about the basis for the District Court's conclusion that respondent may suffer immediate and irreparable injury. The Government has not specifically urged this procedural issue here, however, and the Court of Appeals in its opinion discussed the elements upon which it held that the District Court might base a conclusion of irreparable injury. Respondent's unverified complaint alleged that she might be deprived of her income for an indefinite period of time, that spurious and unrebutted charges against her might remain on the record, and that she would suffer the embarrassment of being wrongfully discharged in the presence of her coworkers. [61] The Court of Appeals intimated that either loss of earnings or damage to reputation might afford a basis for a finding of irreparable injury and provide a basis for temporary injunctive relief. [62] We disagree. [63] Even under the traditional standards of Virginia Petroleum Jobbers, supra, it seems clear that the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury. [64] In that case the court stated: The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. [65] This premise is fortified by the Back Pay Act discussed above. [66] This Act not only affords monetary relief which will prevent the loss of earnings on a periodic basis from being irreparable injury in this type of case, but its legislative history suggests that Congress contemplated that it would be the usual, if not the exclusive, remedy for wrongful discharge. The manager of the bill on the floor of the Senate, Senator Langer, commented on the bill at the time of its passage: [It] . . . provides that an agency or department of the Government may remove any employee at any time, but that the employee shall then have a right of appeal. When he is removed, he is of course off the pay roll. If he wins the appeal, it is provided that he shall be paid for the time during which he was suspended. [67] Respondent's complaint also alleges, as a basis for relief, the humiliation and damage to her reputation which may ensue. As a matter of first impression it would seem that no significant loss of reputation would be inflicted by procedural irregularities in effectuating respondent's discharge, and that whatever damage might occur would be fully corrected by an administrative determination requiring the agency to conform to the applicable regulations. Respondent's claim here is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge. Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case. [68] We therefore reverse the decision of the Court of Appeals which approved the action of the District Court. It is so ordered.",The Court of Appeals said in its opinion:
+670,108971,2,1,"Absent a residence requirement, any indigent sick person . . . could seek admission to [Maricopa County's] hospital, the facilities being the newest and most modern in the state, and the resultant volume would cause long waiting periods or severe hardship on [the] county if it tried to tax its property owners to support [these] indigent sick . . . . 108 Ariz. 373, 376, 498 P. 2d 461, 464. The County thus attempts to sustain the requirement as a necessary means to insure the fiscal integrity of its free medical care program by discouraging an influx of indigents, particularly those entering the County for the sole purpose of obtaining the benefits of its hospital facilities. First, a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens, Shapiro, supra, at 633, so appellees must do more than show that denying free medical care to new residents saves money. The conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement which, in effect, severely penalizes exercise of the right to freely migrate and settle in another State. See Rivera v. Dunn, 329 F. Supp. 554 (Conn. 1971), aff'd, 404 U. S. 1054 (1972). Second, to the extent the purpose of the requirement is to inhibit the immigration of indigents generally, that goal is constitutionally impermissible. [22] And, to the extent the purpose is to deter only those indigents who take up residence in the County solely to utilize its new and modern public medical facilities, the requirement at issue is clearly overinclusive. The challenged durational residence requirement treats every indigent, in his first year of residence, as if he came to the jurisdiction solely to obtain free medical care. Such a classification is no more defensible than the waiting period in Shapiro, supra, of which the Court said: [T]he class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits. 394 U. S., at 631. Moreover, a State may no more try to fence out those indigents who seek [better public medical facilities] than it may try to fence out indigents generally. Ibid. An indigent who considers the quality of public hospital facilities in entering the State is no less deserving than one who moves into the State in order to take advantage of its better educational facilities. Id., at 631-632. It is also useful to look at the other side of the coin—at who will bear the cost of indigents' illnesses if the County does not provide needed treatment. For those newly arrived residents who do receive at least hospital care, the cost is often borne by private nonprofit hospitals, like appellant Memorial—many of which are already in precarious financial straits. [23] When absorbed by private hospitals, the costs of caring for indigents must be passed on to paying patients and at a rather inconvenient time—adding to the already astronomical costs of hospitalization which bear so heavily on the resources of most Americans. [24] The financial pressures under which private nonprofit hospitals operate have already led many of them to turn away patients who cannot pay or to severely limit the number of indigents they will admit. [25] And, for those indigents who receive no care, the cost is, of course, measured by their own suffering. In addition, the County's claimed fiscal savings may well be illusory. The lack of timely medical care could cause a patient's condition to deteriorate to a point where more expensive emergency hospitalization (for which no durational residence requirement applies) is needed. And, the disability that may result from letting an untreated condition deteriorate may well result in the patient and his family becoming a burden on the State's welfare rolls for the duration of his emergency care, or permanently, if his capacity to work is impaired. [26] The appellees also argue that eliminating the durational residence requirement would dilute the quality of services provided to longtime residents by fostering an influx of newcomers and thus requiring the County's limited public health resources to serve an expanded pool of recipients. Appellees assert that the County should be able to protect its longtime residents because of their contributions to the community, particularly through the past payment of taxes. We rejected this contributory rationale both in Shapiro and in Vlandis v. Kline, 412 U. S. 441, 450 n. 6 (1973), by observing: [Such] reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services. Shapiro, 394 U. S., at 632-633 (footnote omitted). Appellees express a concern that the threat of an influx of indigents would discourage the development of modern and effective [public medical] facilities. It is suggested that whether or not the durational residence requirement actually deters migration, the voters think that it protects them from low income families' being attracted by the county hospital; hence, the requirement is necessary for public support of that medical facility. A State may not employ an invidious discrimination to sustain the political viability of its programs. As we observed in Shapiro, supra, at 641, [p]erhaps Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools, but that purpose would not sustain such a scheme. See also Cole v. Housing Authority of the City of Newport, 435 F. 2d 807, 812-813 (CA1 1970).",The Arizona Supreme Court observed:
+671,106850,2,1,"The Court relies exclusively on that portion of ง 1 of the Fourteenth Amendment which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws, and disregards entirely the significance of ง 2, which reads: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. (Emphasis added.) The Amendment is a single text. It was introduced and discussed as such in the Reconstruction Committee, [7] which reported it to the Congress. It was discussed as a unit in Congress and proposed as a unit to the States, [8] which ratified it as a unit. A proposal to split up the Amendment and submit each section to the States as a separate amendment was rejected by the Senate. [9] Whatever one might take to be the application to these cases of the Equal Protection Clause if it stood alone, I am unable to understand the Court's utter disregard of the second section which expressly recognizes the States' power to deny or in any way abridge the right of their inhabitants to vote for the members of the [State] Legislature, and its express provision of a remedy for such denial or abridgment. The comprehensive scope of the second section and its particular reference to the state legislatures preclude the suggestion that the first section was intended to have the result reached by the Court today. If indeed the words of the Fourteenth Amendment speak for themselves, as the majority's disregard of history seems to imply, they speak as clearly as may be against the construction which the majority puts on them. But we are not limited to the language of the Amendment itself.",The Language of the Fourteenth Amendment.
+672,106850,2,2,"The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to apportion their legislatures as they saw fit. Moreover, the history demonstrates that the intention to leave this power undisturbed was deliberate and was widely believed to be essential to the adoption of the Amendment. (i) Proposal of the amendment in Congress. โ€”A resolution proposing what became the Fourteenth Amendment was reported to both houses of Congress by the Reconstruction Committee of Fifteen on April 30, 1866, [10] The first two sections of the proposed amendment read: SEC. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SEC. 2. Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But whenever, in any State, the elective franchise shall be denied to any portion of its male citizens not less than twenty-one years of age, or in any way abridged except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age. [11] In the House, Thaddeus Stevens introduced debate on the resolution on May 8. In his opening remarks, Stevens explained why he supported the resolution although it fell far short of his wishes: I believe it is all that can be obtained in the present state of public opinion. Not only Congress but the several States are to be consulted. Upon a careful survey of the whole ground, we did not believe that nineteen of the loyal States could be induced to ratify any proposition more stringent than this. [12] In explanation of this belief, he asked the House to remember that three months since, and more, the committee reported and the House adopted a proposed amendment fixing the basis of representation in such way as would surely have secured the enfranchisement of every citizen at no distant period, but that proposal had been rejected by the Senate. [13] He then explained the impact of the first section of the proposed Amendment, particularly the Equal Protection Clause. This amendment . . . allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford `equal' protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried in the same way as white men. I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen. [14] He turned next to the second section, which he said he considered the most important in the article. [15] Its effect, he said, was to fix the basis of representation in Congress. [16] In unmistakable terms, he recognized the power of a State to withhold the right to vote: If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive. [17] Closing his discussion of the second section, he noted his dislike for the fact that it allowed the States to discriminate [with respect to the right to vote] among the same class, and receive proportionate credit in representation. [18] Toward the end of the debate three days later, Mr. Bingham, the author of the first section in the Reconstruction Committee and its leading proponent, [19] concluded his discussion of it with the following: Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States.  [20] (Emphasis added.) He immediately continued:  The second section excludes the conclusion that by the first section suffrage is subjected to congressional law; save, indeed, with this exception, that as the right in the people of each State to a republican government and to choose their Representatives in Congress is of the guarantees of the Constitution, by this amendment a remedy might be given directly for a case supposed by Madison, where treason might change a State government from a republican to a despotic government, and thereby deny suffrage to the people. [21] (Emphasis added.) He stated at another point in his remarks: To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.  [22] (Emphasis added.) In the three days of debate which separate the opening and closing remarks, both made by members of the Reconstruction Committee, every speaker on the resolution, with a single doubtful exception, [23] assumed without question that, as Mr. Bingham said, supra, the second section excludes the conclusion that by the first section suffrage is subjected to congressional law. The assumption was neither inadvertent nor silent. Much of the debate concerned the change in the basis of representation effected by the second section, and the speakers stated repeatedly, in express terms or by unmistakable implication, that the States retained the power to regulate suffrage within their borders. Attached as Appendix A hereto are some of those statements. The resolution was adopted by the House without change on May 10. [24] Debate in the Senate began on May 23, and followed the same pattern. Speaking for the Senate Chairman of the Reconstruction Committee, who was ill, Senator Howard, also a member of the Committee, explained the meaning of the Equal Protection Clause as follows: The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? . . .  But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depotism [ sic ]. [25] (Emphasis added.) Discussing the second section, he expressed his regret that it did not recognize the authority of the United States over the question of suffrage in the several States at all . . . . [26] He justified the limited purpose of the Amendment in this regard as follows: But, sir, it is not the question here what will we do; it is not the question what you, or I, or half a dozen other members of the Senate may prefer in respect to colored suffrage; it is not entirely the question what measure we can pass through the two Houses; but the question really is, what will the Legislatures of the various States to whom these amendments are to be submitted do in the premises; what is it likely will meet the general approbation of the people who are to elect the Legislatures, three fourths of whom must ratify our propositions before they have the force of constitutional provisions? ..... The committee were of opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race. . . . The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right. [27] (Emphasis added.) There was not in the Senate, as there had been in the House, a closing speech in explanation of the Amendment. But because the Senate considered, and finally adopted, several changes in the first and second sections, even more attention was given to the problem of voting rights there than had been given in the House. In the Senate, it was fully understood by everyone that neither the first nor the second section interfered with the right of the States to regulate the elective franchise. Attached as Appendix B hereto are representative statements from the debates to that effect. After having changed the proposed amendment to the form in which it was adopted, the Senate passed the resolution on June 8, 1866. [28] As changed, it passed in the House on June 13. [29] (ii) Ratification by the loyal States. โ€”Reports of the debates in the state legislatures on the ratification of the Fourteenth Amendment are not generally available. [30] There is, however, compelling indirect evidence. Of the 23 loyal States which ratified the Amendment before 1870, five had constitutional provisions for apportionment of at least one house of their respective legislatures which wholly disregarded the spread of population. [31] Ten more had constitutional provisions which gave primary emphasis to population, but which applied also other principles, such as partial ratios and recognition of political subdivisions, which were intended to favor sparsely settled areas. [32] Can it be seriously contended that the legislatures of these States, almost two-thirds of those concerned, would have ratified an amendment which might render their own States' constitutions unconstitutional? Nor were these state constitutional provisions merely theoretical. In New Jersey, for example, Cape May County, with a population of 8,349, and Ocean County, with a population of 13,628, each elected one State Senator, as did Essex and Hudson Counties, with populations of 143,839 and 129,067, respectively. [33] In the House, each county was entitled to one representative, which left 39 seats to be apportioned according to population. [34] Since there were 12 counties besides the two already mentioned which had populations over 30,000, [35] it is evident that there were serious disproportions in the House also. In New York, each of the 60 counties except Hamilton County was entitled to one of the 128 seats in the Assembly. [36] This left 69 seats to be distributed among counties the populations of which ranged from 15,420 to 942,292. [37] With seven more counties having populations over 100,000 and 13 others having populations over 50,000, [38] the disproportion in the Assembly was necessarily large. In Vermont, after each county had been allocated one Senator, there were 16 seats remaining to be distributed among the larger counties. [39] The smallest county had a population of 4,082; the largest had a population of 40,651 and there were 10 other counties with populations over 20,000. [40] (iii) Ratification by the reconstructed States. โ€” Each of the 10 reconstructed States was required to ratify the Fourteenth Amendment before it was readmitted to the Union. [41] The Constitution of each was scrutinized in Congress. [42] Debates over readmission were extensive. [43] In at least one instance, the problem of state legislative apportionment was expressly called to the attention of Congress. Objecting to the inclusion of Florida in the Act of June 25, 1868, Mr. Farnsworth stated on the floor of the House: I might refer to the apportionment of representatives. By this constitution representatives in the Legislature of Florida are apportioned in such a manner as to give to the sparsely-populated portions of the State the control of the Legislature. The sparsely-populated parts of the State are those where there are very few negroes, the parts inhabited by the white rebels, the men who, coming in from Georgia, Alabama, and other States, control the fortunes of their several counties. By this constitution every county in that State is entitled to a representative. There are in that State counties that have not thirty registered voters; yet, under this constitution, every one of those counties is entitled to a representative in the Legislature; while the populous counties are entitled to only one representative each, with an additional representative for every thousand inhabitants. [44] The response of Mr. Butler is particularly illuminating: All these arguments, all these statements, all the provisions of this constitution have been submitted to the Judiciary Committee of the Senate, and they have found the constitution republican and proper. This constitution has been submitted to the Senate, and they have found it republican and proper. It has been submitted to your own Committee on Reconstruction, and they have found it republican and proper, and have reported it to this House. [45] The Constitutions of six of the 10 States contained provisions departing substantially from the method of apportionment now held to be required by the Amendment. [46] And, as in the North, the departures were as real in fact as in theory. In North Carolina, 90 of the 120 representatives were apportioned among the counties without regard to population, leaving 30 seats to be distributed by numbers. [47] Since there were seven counties with populations under 5,000 and 26 counties with populations over 15,000, the disproportions must have been widespread and substantial. [48] In South Carolina, Charleston, with a population of 88,863, elected two Senators; each of the other counties, with populations ranging from 10,269 to 42,486, elected one Senator. [49] In Florida, each of the 39 counties was entitled to elect one Representative; no county was entitled to more than four. [50] These principles applied to Dade County, with a population of 85, and to Alachua County and Leon County, with populations of 17,328 and 15,236, respectively. [51] It is incredible that Congress would have exacted ratification of the Fourteenth Amendment as the price of readmission, would have studied the State Constitutions for compliance with the Amendment, and would then have disregarded violations of it. The facts recited above show beyond any possible doubt: (1) that Congress, with full awareness of and attention to the possibility that the States would not afford full equality in voting rights to all their citizens, nevertheless deliberately chose not to interfere with the States' plenary power in this regard when it proposed the Fourteenth Amendment; (2) that Congress did not include in the Fourteenth Amendment restrictions on the States' power to control voting rights because it believed that if such restrictions were included, the Amendment would not be adopted; and (3) that at least a substantial majority, if not all, of the States which ratified the Fourteenth Amendment did not consider that in so doing, they were accepting limitations on their freedom, never before questioned, to regulate voting rights as they chose. Even if one were to accept the majority's belief that it is proper entirely to disregard the unmistakable implications of the second section of the Amendment in construing the first section, one is confounded by its disregard of all this history. There is here none of the difficulty which may attend the application of basic principles to situations not contemplated or understood when the principles were framed. The problems which concern the Court now were problems when the Amendment was adopted. By the deliberate choice of those responsible for the Amendment, it left those problems untouched.",Proposal and Ratification of the Amendment.
+673,106850,2,3,"The years following 1868, far from indicating a developing awareness of the applicability of the Fourteenth Amendment to problems of apportionment, demonstrate precisely the reverse: that the States retained and exercised the power independently to apportion their legislatures. In its Constitutions of 1875 and 1901, Alabama carried forward earlier provisions guaranteeing each county at least one representative and fixing an upper limit to the number of seats in the House. [52] Florida's Constitution of 1885 continued the guarantee of one representative for each county and reduced the maximum number of representatives per county from four to three. [53] Georgia, in 1877, continued to favor the smaller counties. [54] Louisiana, in 1879, guaranteed each parish at least one representative in the House. [55] In 1890, Mississippi guaranteed each county one representative, established a maximum number of representatives, and provided that specified groups of counties should each have approximately one-third of the seats in the House, whatever the spread of population. [56] Missouri's Constitution of 1875 gave each county one representative and otherwise favored less populous areas. [57] Montana's original Constitution of 1889 apportioned the State Senate by counties. [58] In 1877, New Hampshire amended its Constitution's provisions for apportionment, but continued to favor sparsely settled areas in the House and to apportion seats in the Senate according to direct taxes paid; [59] the same was true of New Hampshire's Constitution of 1902. [60] In 1894, New York adopted a Constitution the peculiar apportionment provisions of which were obviously intended to prevent representation according to population: no county was allowed to have more than one-third of all the Senators, no two counties which were adjoining or separated only by public waters could have more than one-half of all the Senators, and whenever any county became entitled to more than three Senators, the total number of Senators was increased, thus preserving to the small counties their original number of seats. [61] In addition, each county except Hamilton was guaranteed a seat in the Assembly. [62] The North Carolina Constitution of 1876 gave each county at least one representative and fixed a maximum number of representatives for the whole House. [63] Oklahoma's Constitution at the time of its admission to the Union (1907) favored small counties by the use of partial ratios and a maximum number of seats in the House; in addition, no county was permitted to take part in the election of more than seven representatives. [64] Pennsylvania, in 1873, continued to guarantee each county one representative in the House. [65] The same was true of South Carolina's Constitution of 1895, which provided also that each county should elect one and only one Senator. [66] Utah's original Constitution of 1895 assured each county of one representative in the House. [67] Wyoming, when it entered the Union in 1889, guaranteed each county at least one Senator and one representative. [68]",After 1868.
+674,106850,2,4,"Since the Court now invalidates the legislative apportionments in six States, and has so far upheld the apportionment in none, it is scarcely necessary to comment on the situation in the States today, which is, of course, as fully contrary to the Court's decision as is the record of every prior period in this Nation's history. As of 1961, the Constitutions of all but 11 States, roughly 20% of the total, recognized bases of apportionment other than geographic spread of population, and to some extent favored sparsely populated areas by a variety of devices, ranging from straight area representation or guaranteed minimum area representation to complicated schemes of the kind exemplified by the provisions of New York's Constitution of 1894, still in effect until struck down by the Court today in No. 20, post, p. 633. [69] Since Tennessee, which was the subject of Baker v. Carr , and Virginia, scrutinized and disapproved today in No. 69, post, p. 678, are among the 11 States whose own Constitutions are sound from the standpoint of the Federal Constitution as construed today, it is evident that the actual practice of the States is even more uniformly than their theory opposed to the Court's view of what is constitutionally permissible.",Today.
+675,106850,2,5,"In this summary of what the majority ignores, note should be taken of the Fifteenth and Nineteenth Amendments. The former prohibited the States from denying or abridging the right to vote on account of race, color, or previous condition of servitude. The latter, certified as part of the Constitution in 1920, added sex to the prohibited classifications. In Minor v. Happersett, 21 Wall. 162, this Court considered the claim that the right of women to vote was protected by the Privileges and Immunities Clause of the Fourteenth Amendment. The Court's discussion there of the significance of the Fifteenth Amendment is fully applicable here with respect to the Nineteenth Amendment as well. And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth, as follows: `The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.' The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part? Id., at 175. In the present case, we can go still further. If constitutional amendment was the only means by which all men and, later, women, could be guaranteed the right to vote at all, even for federal officers, how can it be that the far less obvious right to a particular kind of apportionment of state legislaturesโ€”a right to which is opposed a far more plausible conflicting interest of the State than the interest which opposes the general right to voteโ€”can be conferred by judicial construction of the Fourteenth Amendment? [70] Yet, unless one takes the highly implausible view that the Fourteenth Amendment controls methods of apportionment but leaves the right to vote itself unprotected, the conclusion is inescapable that the Court has, for purposes of these cases, relegated the Fifteenth and Nineteenth Amendments to the same limbo of constitutional anachronisms to which the second section of the Fourteenth Amendment has been assigned. Mention should be made finally of the decisions of this Court which are disregarded or, more accurately, silently overruled today. Minor v. Happersett, supra , in which the Court held that the Fourteenth Amendment did not confer the right to vote on anyone, has already been noted. Other cases are more directly in point. In Colegrove v. Barrett, 330 U. S. 804, this Court dismissed for want of a substantial federal question an appeal from the dismissal of a complaint alleging that the Illinois legislative apportionment resulted in gross inequality in voting power and gross and arbitrary and atrocious discrimination in voting which denied the plaintiffs equal protection of the laws. [71] In Remmey v. Smith, 102 F. Supp. 708 (D. C. E. D. Pa.), a three-judge District Court dismissed a complaint alleging that the apportionment of the Pennsylvania Legislature deprived the plaintiffs of constitutional rights guaranteed to them by the Fourteenth Amendment. Id., at 709. The District Court stated that it was aware that the plaintiffs' allegations were notoriously true and that the practical disenfranchisement of qualified electors in certain of the election districts in Philadelphia County is a matter of common knowledge. Id., at 710. This Court dismissed the appeal  for the want of a substantial federal question. 342 U. S. 916. In Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the supreme Court of Tennessee dismissed an action for a declaratory judgment that the Tennessee Apportionment Act of 1901 was unconstitutional. The complaint alleged that a minority of approximately 37% of the voting population of the State now elects and controls 20 of the 33 members of the Senate; that a minority of 40% of the voting population of the State now controls 63 of the 99 members of the House of Representatives. Id., at 276, 292 S. W. 2d, at 42. Without dissent, this Court granted the motion to dismiss the appeal. 352 U. S. 920. In Radford v. Gary, 145 F. Supp. 541 (D. C. W. D. Okla.), a three-judge District Court was convened to consider the complaint of the plaintiff to the effect that the existing apportionment statutes of the State of Oklahoma violate the plain mandate of the Oklahoma Constitution and operate to deprive him of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. Id., at 542. The plaintiff alleged that he was a resident and voter in the most populous county of the State, which had about 15% of the total population of the State but only about 2% of the seats in the State Senate and less than 4% of the seats in the House. The complaint recited the unwillingness or inability of the branches of the state government to provide relief and alleged that there was no state remedy available. The District Court granted a motion to dismiss. This Court affirmed without dissent. 352 U. S. 991. Each of these recent cases is distinguished on some ground or other in Baker v. Carr. See 369 U. S., at 235-236. Their summary dispositions prevent consideration whether these after-the-fact distinctions are real or imaginary. The fact remains, however, that between 1947 and 1957, four cases raising issues precisely the same as those decided today were presented to the Court. Three were dismissed because the issues presented were thought insubstantial and in the fourth the lower court's dismissal was affirmed. [72] I have tried to make the catalogue complete, yet to keep it within the manageable limits of a judicial opinion. In my judgment, today's decisions are refuted by the language of the Amendment which they construe and by the inference fairly to be drawn from subsequently enacted Amendments. They are unequivocally refuted by history and by consistent theory and practice from the time of the adoption of the Fourteenth Amendment until today.",Other Factors.
+676,107161,1,2,"The patent under consideration, U. S. No. 2,322,210, was issued in 1943 upon an application filed in December 1941 by Adams. It relates to a nonrechargeable, as opposed to a storage, electrical battery. Stated simply, the battery comprises two electrodes—one made of magnesium, the other of cuprous chloride—which are placed in a container. The electrolyte, or battery fluid, used may be either plain or salt water. The specifications of the patent state that the object of the invention is to provide constant voltage and current without the use of acids, conventionally employed in storage batteries, and without the generation of dangerous fumes. Another object is to provide a battery which is relatively light in weight with respect to capacity and which may be manufactured and distributed to the trade in a dry condition and rendered serviceable by merely filling the container with water. Following the specifications, which also set out a specific embodiment of the invention, there appear 11 claims. Of these, principal reliance has been placed upon Claims 1 and 10, which read: 1. A battery comprising a liquid container, a magnesium electropositive electrode inside the container and having an exterior terminal, a fused cuprous chloride electronegative electrode, and a terminal connected with said electronegative electrode. 10. In a battery, the combination of a magnesium electropositive electrode, and an electronegative electrode comprising cuprous chloride fused with a carbon catalytic agent. For several years prior to filing his application for the patent, Adams had worked in his home experimenting on the development of a wet battery. He found that when cuprous chloride and magnesium were used as electrodes in an electrolyte of either plain water or salt water an improved battery resulted. The Adams invention was the first practical, water-activated, constant potential battery which could be fabricated and stored indefinitely without any fluid in its cells. It was activated within 30 minutes merely by adding water. Once activated, the battery continued to deliver electricity at a voltage which remained essentially constant regardless of the rate at which current was withdrawn. Furthermore, its capacity for generating current was exceptionally large in comparison to its size and weight. The battery was also quite efficient in that substantially its full capacity could be obtained over a wide range of currents. One disadvantage, however, was that once activated the battery could not be shut off; the chemical reactions in the battery continued even though current was not withdrawn. Nevertheless, these chemical reactions were highly exothermic, liberating large quantities of heat during operation. As a result, the battery performed with little effect on its voltage or current in very low temperatures. Relatively high temperatures would not damage the battery. Consequently, the battery was operable from 65° below zero Fahrenheit to 200° Fahrenheit. See findings at 165 Ct. Cl., at 591-592, 330 F. 2d, at 632. Less than a month after filing for his patent, Adams brought his discovery to the attention of the Army and Navy. Arrangements were quickly made for demonstrations before the experts of the United States Army Signal Corps. The Signal Corps scientists who observed the demonstrations and who conducted further tests themselves did not believe the battery was workable. Almost a year later, in December 1942, Dr. George Vinal, an eminent government expert with the National Bureau of Standards, still expressed doubts. He felt that Adams was making unusually large claims for high watt hour output per unit weight, and he found far from convincing the graphical data submitted by the inventor showing the battery's constant voltage and capacity characteristics. He recommended, Until the inventor can present more convincing data about the performance of his [battery] cell, I see no reason to consider it further. However, in November 1943, at the height of World War II, the Signal Corps concluded that the battery was feasible. The Government thereafter entered into contracts with various battery companies for its procurement. The battery was found adaptable to many uses. Indeed, by 1956 it was noted that [t]here can be no doubt that the addition of water activated batteries to the family of power sources has brought about developments which would otherwise have been technically or economically impractical. See Tenth Annual Battery Research and Development Conference, Signal Corps Engineering Laboratories, Fort Monmouth, N. J., p. 25 (1956). Also, see Finding No. 24, 165 Ct. Cl., at 592, 330 F. 2d, at 632. Surprisingly, the Government did not notify Adams of its changed views nor of the use to which it was putting his device, despite his repeated requests. In 1955, upon examination of a battery produced for the Government by the Burgess Company, he first learned of the Government's action. His request for compensation was denied in 1960, resulting in this suit.",The Patent in Issue and Its Background.
+677,107161,1,3,"The basic idea of chemical generation of electricity is, of course, quite old. Batteries trace back to the epic discovery by the Italian scientist Volta in 1795, who found that when two dissimilar metals are placed in an electrically conductive fluid an electromotive force is set up and electricity generated. Essentially, the basic elements of a chemical battery are a pair of electrodes of different electrochemical properties and an electrolyte which is either a liquid (in wet batteries) or a moist paste of various substances (in the so-called dry-cell batteries). Various materials which may be employed as electrodes, various electrolyte possibilities and many combinations of these elements have been the object of considerable experiment for almost 175 years. See generally, Vinal, Primary Batteries (New York 1950). At trial, the Government introduced in evidence 24 patents and treatises as representing the art as it stood in 1938, the time of the Adams invention. [2] Here, however, the Government has relied primarily upon only six of these references [3] which we may summarize as follows. The Niaudet treatise describes the Marie Davy cell invented in 1860 and De La Rue's variations on it. The battery comprises a zinc anode and a silver chloride cathode. Although it seems to have been capable of working in an electrolyte of pure water, Niaudet says the battery was of little interest until De La Rue used a solution of ammonium chloride as an electrolyte. Niaudet also states that [t]he capital advantage of this battery, as in all where zinc with sal ammoniac [ammonium chloride solution] is used, consists in the absence of any local or internal action as long as the electric circuit is open; in other words, this battery does not work upon itself. Hayes likewise discloses the De La Rue zinc-silver chloride cell, but with certain mechanical differences designed to restrict the battery from continuing to act upon itself. The Wood patent is relied upon by the Government as teaching the substitution of magnesium, as in the Adams patent, for zinc. Wood's patent, issued in 1928, states: It would seem that a relatively high voltage primary cell would be obtained by using . . . magnesium as the . . . [positive] electrode and I am aware that attempts have been made to develop such a cell. As far as I am aware, however, these have all been unsuccessful, and it has been generally accepted that magnesium could not be commercially utilized as a primary cell electrode. Wood recognized that the difficulty with magnesium electrodes is their susceptibility to chemical corrosion by the action of acid or ammonium chloride electrolytes. Wood's solution to this problem was to use a neutral electrolyte containing a strong soluble oxidizing agent adapted to reduce the rate of corrosion of the magnesium electrode on open circuit. There is no indication of its use with cuprous chloride, nor was there any indication that a magnesium battery could be water-activated. The Codd treatise is also cited as authority for the substitution of magnesium. However, Codd simply lists magnesium in an electromotive series table, a tabulation of electrochemical substances in descending order of their relative electropositivity. He also refers to magnesium in an example designed to show that various substances are more electropositive than others, but the discussion involves a cell containing an acid which would destroy magnesium within minutes. In short, Codd indicates, by inference, only that magnesium is a theoretically desirable electrode by virtue of its highly electropositive character. He does not teach that magnesium could be combined in a water-activated battery or that a battery using magnesium would have the properties of the Adams device. Nor does he suggest, as the Government indicates, that cuprous chloride could be substituted for silver chloride. He merely refers to the cuprous ion —a generic term which includes an infinite number of copper compounds —and in no way suggests that cuprous chloride could be employed in a battery. The Government then cites the Wensky patent which was issued in Great Britain in 1891. The patent relates to the use of cuprous chloride as a depolarizing agent. The specifications of his patent disclose a battery comprising zinc and copper electrodes, the cuprous chloride being added as a salt in an electrolyte solution containing zinc chloride as well. While Wensky recognized that cuprous chloride could be used in a constant-current cell, there is no indication that he taught a water-activated system or that magnesium could be incorporated in his battery. Finally, the Skrivanoff patent depended upon by the Government relates to a battery designed to give intermittent, as opposed to continuous, service. While the patent claims magnesium as an electrode, it specifies that the electrolyte to be used in conjunction with it must be a solution of alcoline, chloro-chromate, or a permanganate strengthened with sulphuric acid. The cathode was a copper or carbon electrode faced with a paste of phosphoric acid, amorphous phosphorous, metallic copper in spangles, and cuprous chloride. This paste is to be mixed with hot sulfuric acid before applying to the electrode. The Government's expert testified in trial that he had no information as to whether the cathode, as placed in the battery, would, after having been mixed with the other chemicals prescribed, actually contain cuprous chloride. Furthermore, respondents' expert testified, without contradiction, that he had attempted to assemble a battery made in accordance with Skrivanoff's teachings, but was met first with a fire when he sought to make the cathode, and then with an explosion when he attempted to assemble the complete battery.",The Prior Art.
+678,107161,1,4,"The Government challenges the validity of the Adams patent on grounds of lack of novelty under 35 U. S. C. § 102 (a) (1964 ed.) as well as obviousness under 35 U. S. C. § 103 (1964 ed.). As we have seen in Graham v. John Deere Co., ante, p. 1, novelty and nonobviousness —as well as utility—are separate tests of patentability and all must be satisfied in a valid patent. The Government concludes that wet batteries comprising a zinc anode and silver chloride cathode are old in the art; and that the prior art shows that magnesium may be substituted for zinc and cuprous chloride for silver chloride. Hence, it argues that the combination of magnesium and cuprous chloride in the Adams battery was not patentable because it represented either no change or an insignificant change as compared to prior battery designs. And, despite the fact that, wholly unexpectedly, the battery showed certain valuable operating advantages over other batteries [these advantages] would certainly not justify a patent on the essentially old formula. There are several basic errors in the Government's position. First, the fact that the Adams battery is water-activated sets his device apart from the prior art. It is true that Claims 1 and 10, supra, do not mention a water electrolyte, but, as we have noted, a stated object of the invention was to provide a battery rendered serviceable by the mere addition of water. While the claims of a patent limit the invention, and specification cannot be utilized to expand the patent monopoly, Burns v. Meyer, 100 U. S. 671, 672 (1880); McCarty v. Lehigh Valley R. Co., 160 U. S. 110, 116 (1895), it is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention, Seymour v. Osborne, 11 Wall. 516, 547 (1871); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U. S. 211 (1940); Schering Corp. v. Gilbert, 153 F. 2d 428 (1946). Taken together with the stated object of disclosing a water-activated cell, the lack of reference to any electrolyte in Claims 1 and 10 indicates that water alone could be used. Furthermore, of the 11 claims in issue, three of the narrower ones include references to specific electrolyte solutions comprising water and certain salts. The obvious implication from the absence of any mention of an electrolyte—a necessary element in any battery—in the other eight claims reinforces this conclusion. It is evident that respondents' present reliance upon this feature was not the afterthought of an astute patent trial lawyer. In his first contact with the Government less than a month after the patent application was filed, Adams pointed out that no acids, alkalines or any other liquid other than plain water is used in this cell. Water does not have to be distilled. . . . Letter to Charles F. Kettering (January 7, 1942), R., pp. 415, 416. Also see his letter to the Department of Commerce (March 28, 1942), R., p. 422. The findings, approved and adopted by the Court of Claims, also fully support this conclusion. Nor is Sinclair & Carroll Co. v. Interchemical Corp., 325 U. S. 327 (1945), apposite here. There the patentee had developed a rapidly drying printing ink. All that was needed to produce such an ink was a solvent which evaporated quickly upon heating. Knowing that the boiling point of a solvent is an indication of its rate of evaporation, the patentee merely made selections from a list of solvents and their boiling points. This was no more than selecting the last piece to put into the last opening in a jig-saw puzzle. 325 U. S., at 335. Indeed, the Government's reliance upon Sinclair & Carroll points up the fallacy of the underlying premise of its case. The solvent in Sinclair & Carroll had no functional relation to the printing ink involved. It served only as an inert carrier. The choice of solvent was dictated by known, required properties. Here, however, the Adams battery is shown to embrace elements having an interdependent functional relationship. It begs the question, and overlooks the holding of the Commissioner and the Court of Claims, to state merely that magnesium and cuprous chloride were individually known battery components. If such a combination is novel, the issue is whether bringing them together as taught by Adams was obvious in the light of the prior art. We believe that the Court of Claims was correct in concluding that the Adams battery is novel. Skrivanoff disclosed the use of magnesium in an electrolyte completely different from that used in Adams. As we have mentioned, it is even open to doubt whether cuprous chloride was a functional element in Skrivanoff. In view of the unchallenged testimony that the Skrivanoff formulation was both dangerous and inoperable, it seems anomalous to suggest that it is an anticipation of Adams. An inoperable invention or one which fails to achieve its intended result does not negative novelty. Smith v. Snow, 294 U. S. 1, 17 (1935). That in 1880 Skrivanoff may have been able to convince a foreign patent examiner to issue a patent on his device has little significance in the light of the foregoing. Nor is the Government's contention that the electrodes of Adams were mere substitutions of pre-existing battery designs supported by the prior art. If the use of magnesium for zinc and cuprous chloride for silver chloride were merely equivalent substitutions, it would follow that the resulting device—Adams'—would have equivalent operating characteristics. But it does not. The court below found, and the Government apparently admits, that the Adams battery wholly unexpectedly has shown certain valuable operating advantages over other batteries while those from which it is claimed to have been copied were long ago discarded. Moreover, most of the batteries relied upon by the Government were of a completely different type designed to give intermittent power and characterized by an absence of internal action when not in use. Some provided current at voltages which declined fairly proportionately with time. [4] Others were so-called standard cells which, though producing a constant voltage, were of use principally for calibration or measurement purposes. Such cells cannot be used as sources of power. [5] For these reasons we find no equivalency. [6] We conclude the Adams battery was also nonobvious. As we have seen, the operating characteristics of the Adams battery have been shown to have been unexpected and to have far surpassed then-existing wet batteries. Despite the fact that each of the elements of the Adams battery was well known in the prior art, to combine them as did Adams required that a person reasonably skilled in the prior art must ignore that (1) batteries which continued to operate on an open circuit and which heated in normal use were not practical; and (2) water-activated batteries were successful only when combined with electrolytes detrimental to the use of magnesium. These long-accepted factors, when taken together, would, we believe, deter any investigation into such a combination as is used by Adams. This is not to say that one who merely finds new uses for old inventions by shutting his eyes to their prior disadvantages thereby discovers a patentable innovation. We do say, however, that known disadvantages in old devices which would naturally discourage the search for new inventions may be taken into account in determining obviousness. Nor are these the only factors bearing on the question of obviousness. We have seen that at the time Adams perfected his invention noted experts expressed disbelief in it. Several of the same experts subsequently recognized the significance of the Adams invention, some even patenting improvements on the same system. Fischbach et al., U. S. Patent No. 2,636,060 (1953). Furthermore, in a crowded art replete with a century and a half of advancement, the Patent Office found not one reference to cite against the Adams application. Against the subsequently issued improvement patents to Fischbach, supra, and to Chubb, U. S. Reissue Patent No. 23,883 (1954), it found but three references prior to Adams— none of which are relied upon by the Government. We conclude that the Adams patent is valid. The judgment of the Court of Claims is affirmed. It is so ordered.",The Validity of the Patent.
+679,106959,1,1,"The Court upholds the freeze order on the basis that the District Court, pending acquisition of personal jurisdiction over Omar, had authority to enjoin Citibank (over which it did have personal jurisdiction) from allowing its Montevideo branch to transfer the funds to Omar. There can be no doubt that the enforcement powers available to the District Court were adequate to accomplish that much of the end in view. Citibank was before the court. It had sufficient control over the Montevideo branch to require compliance with the freeze order, and if it did not exercise that control, the sanctions of contempt could be inflicted on officers and property of Citibank within the New York district. [2] But jurisdiction is not synonymous with naked power. It is a combination of power and policy. Judge Learned Hand made this point in Amey v. Colebrook Guaranty Sav. Bank, 92 F. 2d 62, a case containing some of the same elements as the case before us. In reversing so much of an interlocutory decree of a federal judge sitting in Vermont as provided for the cutting of timber in Maine, Judge Hand said: The word, `jurisdiction,' is in this connection some-what equivocal; in one sense the judge had it; the bank had personally appeared and was subject to his orders, as far as any corporation can be; he might sequester its property in Vermont, if he could find any, or he might proceed against its officers as for a contempt. But although he thus had the power to prevent the defendant from asserting its rights in Maine, it might still be improper for him to do so. Courts do not always exert themselves to the full, or direct parties to do all that they can effectively compel, and such forbearance is sometimes called lack of `jurisdiction.' What reserves a court shall make, when dealing with real property beyond its territory, is not altogether plain; as to some things, it will act freely when it has before it those who hold the legal interests. 92 F. 2d, at 63. The real problem with this phase of the case is therefore this: Granting that the District Court had the naked power to control the Montevideo account by bringing to bear coercive action on Citibank, ought the court to have exercised it? Or to put the question in the statutory terms, [3] was the court's order appropriate for the enforcement of the internal revenue laws?
+We should first consider the question in its starkest form. Assuming that there is no quasi in rem jurisdiction over the property (see Part IV, infra, p. 404) and no reasonable likelihood of obtaining personal jurisdiction over Omar, why should the court not use its naked power, to the extent that it could be brought to bear on others situated as was Citibank, to tie up Omar's property all over the world for the avowed purpose of coercing Omar into paying its taxes? Use of judicial equity powers to coerce a party over whom the court has no jurisdiction or likelihood of obtaining jurisdiction is unheard of. The statute authorizing courts to render such decrees as may be necessary or appropriate for the enforcement of the internal revenue laws clearly intends that courts use only their traditional equity powers to that end. [4] It should not be interpreted as an authorization to employ radically new and extremely far-reaching forms of coercive action in a more free-wheeling approach to international than to domestic cases. [5] Neither the Government nor the Court argues for such an extraordinary judicial use of power. Suffice it to say that if the contrary position were taken, serious constitutional problems would arise. 2. Improbability of Obtaining Personal Jurisdiction Over Omar as of the Time the Injunction Was Issued. It is basic to traditional notions of equity that to justify the issuance of a protective temporary injunction there must exist a substantial probability that jurisdiction, judgment, and enforcement will be obtained with respect to the person sought to be affected. [6] The Court does not and could not contest this proposition, and virtually concedes that at the time the injunction was issued, the Government had insufficient probability of obtaining personal jurisdiction over Omar to justify the issuance of the freeze order. Section 302 (a) of the New York Civil Practice Law and Rules, upon which the Court alone relies, did not become effective until 10 months later. [7] No other theory is offered by the Court which could justify the freeze order as of the time at which it was issued. [8] 3. Evaluating the Injunction as of now. The only course left open to the Court on its theory of the case is to judge the injunction as of now. Indeed the New York Court of Appeals ruled in Simonson v. International Bank, 14 N. Y. 2d 281, 200 N. E. 2d 427, that § 302 (a) does not retroactively validate actions in pending cases taken before its enactment, and may be applied to further proceedings in pending cases only if it is equitable to do so. [9] Thus even on the glib assumption that New York courts would interpret § 302 (a) to give personal jurisdiction over one who merely traded long distance for his own account on the New York exchanges, [10] the Court must nonetheless show, as a matter of both state and federal law, that there is equity in continuing the existence of the freeze order. There are two inescapable reasons why such a showing is impossible. (a) The so-called temporary freeze order has now been in effect for over two years. During this time no form of jurisdiction over Omar has been obtained. It may be argued that it is this appellate review which has been the cause of delay. But Omar is not party to this review. The contesting parties are the Government and Citibank. Nothing pertaining to these proceedings precluded or excused the Government from obtaining personal jurisdiction over Omar and proceeding with the case if it was otherwise able to do so. As far as Omar is concerned, its property has been taken from its control by a court having jurisdiction neither over the corporation nor over the property (see Part IV, infra, p. 404), prior to any judgment of liability being entered against it, and during a time when the Uruguayan peso has fallen over 60%. [11] The Government had its chance to reach Omar's property before it was removed from the country. Indeed, it was warned ( supra, p. 386), and made no legal move until several months later. It made no effort to obtain personal jurisdiction over Omar within a reasonable time after the temporary injunction was issued; or after § 302 (a) was enacted; or after the date at which it supposedly altered the theory on which it chose to argue its case. The Court expresses the opinion that this latter event, obviously irrelevant to the equities of Omar and Citibank, somehow explains and excuses the Government's failure to have acquired personal jurisdiction over Omar. This is surely untenable. The petition for rehearing was filed on July 10, 1963, following the initial Court of Appeals' opinion and prior to the opinion of the court en banc. Over 18 months have elapsed since that time. Were this in itself not conclusive, the Government stated unequivocally and as its very first ground for rehearing: The United States, which in this action seeks inter alia a judgment in personam against Omar, is taking necessary steps to effectuate personal jurisdiction over Omar. In the face of this statement there is no way that the Court can excuse or avoid the fact that the Government, by reason of either neglect or inability, has failed to acquire jurisdiction over Omar in the ample time which has been available to it. Yet the Court inexplicably finds equity in continuing the freeze order. [12] Omar, as a foreign corporation which allegedly withdrew its assets to avoid taxation by this country, naturally does not present a sympathetic aspect to this Court, but that is no justification for perpetuating a temporary order which, without any jurisdictional basis, has tied up Omar's property for over two years. [13] Alleged tax dodgers, as much as those charged with crime, are entitled to due process treatment. And the hand of equity should be stayed long before it reaches constitutional limits. (b) Whether the situation is examined as of the time the order originally issued or as of now, the Government has to show that the funds to be frozen may be subject to ultimate execution. If the property cannot be subjected to government levy, there is obviously no equity in freezing it. That is the situation presented here. The quasi in rem statute does not permit the court to attach the property directly (see Part IV, infra, p. 404), and no view is expressed by the Court as to how or whether this difficulty could be avoided. The Government argues that this obstacle can be skirted in the following fashion. Personal jurisdiction under § 302 can be obtained over Omar by mailing a letter to Uruguay pursuant to New York's substituted service statute. [14] Judgment can then be obtained together with an order to Omar to transfer the funds in the Montevideo account to the Government. When Omar refuses to comply voluntarily—it has no officers in New York who could be punished for contempt—a court officer appointed under Rule 70 of the Federal Rules of Civil Procedure could be sent to Montevideo to make demand upon the Citibank branch in the name of the United States. [15] If the branch refuses payment, it will breach its contract to pay on demand. An action for breach of the contract could then be brought by the depositor against Citibank in New York (see n. 27, infra ). Once that obligation accrues in New York, the Government can garnish it to satisfy the personal judgment. Of course, if the court could directly order Citibank in New York to pay the debt, the obligation would be payable within the district (see Part IV, infra, p. 404), in which case the quasi in rem statute would serve without necessitating elaborate personal jurisdiction theories. The reasons why this procedural cake-walking should not commend itself are manifest. Foreign courts in customary international practice (which Uruguay presumably follows) do not enforce foreign tax judgments. [16] Therefore Uruguay would undoubtedly not consider valid a demand made by the court-appointed officer for the property within Uruguayan borders. If the refusal to pay the court officer is proper under the Uruguayan law which governs the contract, there can be no breach which would give rise to a cause of action in New York, Zimmermann v. Sutherland, 274 U. S. 253. Furthermore the prospect is more than startling that a district court, aware that a foreign country would not enforce its judgment, would nonetheless dispatch a court officer to the foreign jurisdiction to accomplish that end by self-help. [17]",personal jurisdiction.
+680,106959,2,1,"We should first consider the question in its starkest form. Assuming that there is no quasi in rem jurisdiction over the property (see Part IV, infra, p. 404) and no reasonable likelihood of obtaining personal jurisdiction over Omar, why should the court not use its naked power, to the extent that it could be brought to bear on others situated as was Citibank, to tie up Omar's property all over the world for the avowed purpose of coercing Omar into paying its taxes? Use of judicial equity powers to coerce a party over whom the court has no jurisdiction or likelihood of obtaining jurisdiction is unheard of. The statute authorizing courts to render such decrees as may be necessary or appropriate for the enforcement of the internal revenue laws clearly intends that courts use only their traditional equity powers to that end. [4] It should not be interpreted as an authorization to employ radically new and extremely far-reaching forms of coercive action in a more free-wheeling approach to international than to domestic cases. [5] Neither the Government nor the Court argues for such an extraordinary judicial use of power. Suffice it to say that if the contrary position were taken, serious constitutional problems would arise. 2. Improbability of Obtaining Personal Jurisdiction Over Omar as of the Time the Injunction Was Issued. It is basic to traditional notions of equity that to justify the issuance of a protective temporary injunction there must exist a substantial probability that jurisdiction, judgment, and enforcement will be obtained with respect to the person sought to be affected. [6] The Court does not and could not contest this proposition, and virtually concedes that at the time the injunction was issued, the Government had insufficient probability of obtaining personal jurisdiction over Omar to justify the issuance of the freeze order. Section 302 (a) of the New York Civil Practice Law and Rules, upon which the Court alone relies, did not become effective until 10 months later. [7] No other theory is offered by the Court which could justify the freeze order as of the time at which it was issued. [8] 3. Evaluating the Injunction as of now. The only course left open to the Court on its theory of the case is to judge the injunction as of now. Indeed the New York Court of Appeals ruled in Simonson v. International Bank, 14 N. Y. 2d 281, 200 N. E. 2d 427, that § 302 (a) does not retroactively validate actions in pending cases taken before its enactment, and may be applied to further proceedings in pending cases only if it is equitable to do so. [9] Thus even on the glib assumption that New York courts would interpret § 302 (a) to give personal jurisdiction over one who merely traded long distance for his own account on the New York exchanges, [10] the Court must nonetheless show, as a matter of both state and federal law, that there is equity in continuing the existence of the freeze order. There are two inescapable reasons why such a showing is impossible. (a) The so-called temporary freeze order has now been in effect for over two years. During this time no form of jurisdiction over Omar has been obtained. It may be argued that it is this appellate review which has been the cause of delay. But Omar is not party to this review. The contesting parties are the Government and Citibank. Nothing pertaining to these proceedings precluded or excused the Government from obtaining personal jurisdiction over Omar and proceeding with the case if it was otherwise able to do so. As far as Omar is concerned, its property has been taken from its control by a court having jurisdiction neither over the corporation nor over the property (see Part IV, infra, p. 404), prior to any judgment of liability being entered against it, and during a time when the Uruguayan peso has fallen over 60%. [11] The Government had its chance to reach Omar's property before it was removed from the country. Indeed, it was warned ( supra, p. 386), and made no legal move until several months later. It made no effort to obtain personal jurisdiction over Omar within a reasonable time after the temporary injunction was issued; or after § 302 (a) was enacted; or after the date at which it supposedly altered the theory on which it chose to argue its case. The Court expresses the opinion that this latter event, obviously irrelevant to the equities of Omar and Citibank, somehow explains and excuses the Government's failure to have acquired personal jurisdiction over Omar. This is surely untenable. The petition for rehearing was filed on July 10, 1963, following the initial Court of Appeals' opinion and prior to the opinion of the court en banc. Over 18 months have elapsed since that time. Were this in itself not conclusive, the Government stated unequivocally and as its very first ground for rehearing: The United States, which in this action seeks inter alia a judgment in personam against Omar, is taking necessary steps to effectuate personal jurisdiction over Omar. In the face of this statement there is no way that the Court can excuse or avoid the fact that the Government, by reason of either neglect or inability, has failed to acquire jurisdiction over Omar in the ample time which has been available to it. Yet the Court inexplicably finds equity in continuing the freeze order. [12] Omar, as a foreign corporation which allegedly withdrew its assets to avoid taxation by this country, naturally does not present a sympathetic aspect to this Court, but that is no justification for perpetuating a temporary order which, without any jurisdictional basis, has tied up Omar's property for over two years. [13] Alleged tax dodgers, as much as those charged with crime, are entitled to due process treatment. And the hand of equity should be stayed long before it reaches constitutional limits. (b) Whether the situation is examined as of the time the order originally issued or as of now, the Government has to show that the funds to be frozen may be subject to ultimate execution. If the property cannot be subjected to government levy, there is obviously no equity in freezing it. That is the situation presented here. The quasi in rem statute does not permit the court to attach the property directly (see Part IV, infra, p. 404), and no view is expressed by the Court as to how or whether this difficulty could be avoided. The Government argues that this obstacle can be skirted in the following fashion. Personal jurisdiction under § 302 can be obtained over Omar by mailing a letter to Uruguay pursuant to New York's substituted service statute. [14] Judgment can then be obtained together with an order to Omar to transfer the funds in the Montevideo account to the Government. When Omar refuses to comply voluntarily—it has no officers in New York who could be punished for contempt—a court officer appointed under Rule 70 of the Federal Rules of Civil Procedure could be sent to Montevideo to make demand upon the Citibank branch in the name of the United States. [15] If the branch refuses payment, it will breach its contract to pay on demand. An action for breach of the contract could then be brought by the depositor against Citibank in New York (see n. 27, infra ). Once that obligation accrues in New York, the Government can garnish it to satisfy the personal judgment. Of course, if the court could directly order Citibank in New York to pay the debt, the obligation would be payable within the district (see Part IV, infra, p. 404), in which case the quasi in rem statute would serve without necessitating elaborate personal jurisdiction theories. The reasons why this procedural cake-walking should not commend itself are manifest. Foreign courts in customary international practice (which Uruguay presumably follows) do not enforce foreign tax judgments. [16] Therefore Uruguay would undoubtedly not consider valid a demand made by the court-appointed officer for the property within Uruguayan borders. If the refusal to pay the court officer is proper under the Uruguayan law which governs the contract, there can be no breach which would give rise to a cause of action in New York, Zimmermann v. Sutherland, 274 U. S. 253. Furthermore the prospect is more than startling that a district court, aware that a foreign country would not enforce its judgment, would nonetheless dispatch a court officer to the foreign jurisdiction to accomplish that end by self-help. [17]",Need for Personal Jurisdiction Over Omar.
+681,106959,1,2,"It is surprising that the Court has been content to so cursorily lay aside De Beers Consolidated Mines, Ltd. v. United States, 325 U. S. 212, for upon examination that case will be found to be indistinguishable from the present case and should control this litigation on the personal jurisdiction issue. The United States brought a Sherman antitrust action against De Beers and other African-based diamond companies alleging monopolization and conspiracy in restraint of trade. All were allegedly doing business within the United States. With the complaint the Government requested a preliminary injunction freezing all property in the United States belonging to the defendants. As stated in the opinion, the reasons given in support of the motion were:  `The injury to the United States of America from the withdrawal of said deposits, diamonds or other property would be irreparable because sequestration of said property is the only means of enforcing this Court's orders or decree against said foreign corporate defendants. The principal business of said defendants is carried on in foreign countries and they could quickly withdraw their assets from the United States and so prevent enforcement of any order or decree which this Court may render.' Amongst other supporting papers was an affidavit by counsel for the United States which stated that `the investigation which he has made shows the foreign corporate defendants named herein have endeavored to avoid subjecting themselves to the jurisdiction of the courts of the United States by making their sales abroad only and requiring customers to pay in advance for all purchases.'  325 U. S., at 215-216. Under the Sherman Act district courts had power to prevent and restrain violations of this act (26 Stat. 209, 15 U. S. C. § 4 (1958 ed.)), and, under the all-writs section of the Judicial Code, to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law (now 28 U. S. C. § 1651 (1958 ed.)). The Court construed these grants of authority as limited to traditional equitable powers. It then demonstrated the remoteness of any levy by the Government against the property of the defendants, and because of the remoteness vacated the freeze order. It should be noted that unlike the present case the property sought to be frozen was within the borders of the United States, and, that without a hold on it, an order to the defendants to stop their alleged monopolistic practices would have been as little likely to meet with voluntary compliance as an order to Omar to pay $19,300,000. The Government would distinguish De Beers on the ground that under the Sherman Act the trial court could award only injunctive relief, whereas in the present case the judgment, were the Government successful, would be a money award. However, the De Beers Court recognized that levy against the property could ultimately be had as a means of enforcing the injunctive order. Clearly the Court's point in emphasizing the scope of the order which could issue in the first instance was that the possibility of an ultimate levy was too remote in practical terms to justify freezing the property from the outset of the litigation. Remoteness is the determinative point, whatever its cause, and in terms of remoteness the case before us argues even stronger than De Beers against the issuance of what amounts to an interim sequestration order. The principles of De Beers should govern this litigation. [18] The Government puts forth Deckert v. Independence Shares Corp., 311 U. S. 282, instead of De Beers as the case most analogous to the present one. In Deckert a bill in equity was brought against an insolvent and allegedly fraudulent securities vendor and against a third party who held assets of the vendor. By way of interlocutory relief the plaintiffs asked that the assets in the hands of the third party be frozen, and this Court sustained the request. Distinguishing features are many. Deckert involved no international problems. The court had personal jurisdiction over all parties concerned. There was no question of power to enforce a judgment against the frozen funds. The only contingency on which enforcement depended was whether the plaintiff would win the suit; thus, there was virtually no problem of remoteness. And unlike the present case (see infra, pp. 404-409), the frozen funds could have been attached directly by a suit quasi in rem in a state court. [19]",the de beers and deckert cases.
+682,106959,1,3,"Certainly the Court's remark that it must act in light of the public interest cannot mean that because the Government is a party here, the Court may ignore its duty to consider the balance of equities. It is, therefore, well to consider just what overall benefits will accrue in the public interest as a result of today's decision. Except in the context of the comparatively rare case in which the Government has the element of surprise on its side, it must be recognized that the utility of the extra-territorial freeze order as a tax-collecting weapon is minimal. Under the tax regulation adopted during this action the Government declares that it would use the freeze-order power to reach only funds which were transferred out of this country in order to hinder or delay the collection of taxes and which were in banks having an American office. [21] In other words, the regulation would snare only those taxpayers smart and unscrupulous enough to withdraw their funds from the United States, but stupid and uninformed enough, even after this decision, to put the transferred funds in a bank having a United States office. In order to provide the Government with this toy pistol, the Court flexes its muscles in a manner never before imagined. If the overall benefits of this exercise of power are minimal, the detriments are substantial. (a) It would expose Citibank, an innocent stakeholder, to exactly the kind of administrative hazards which New York's separate entity theory is designed to obviate. (b) It would subject Citibank to the possibility of double liability if Uruguay did not recognize the United States' judgment, and multiple liability if Uruguay permitted actions for slander of credit. The District Court's offer to modify the freeze order if Citibank shows that it conflicts with Uruguayan law is some hedge against the first of these dangers, but operating at its best it places the heavy burden on Citibank, blameless in this situation, of discovering Uruguayan law. In practical operation the Uruguayan law may well be unclear to the point that Citibank can only be sure of its obligation to Omar if it is sued for payment and the matter is litigated. If Omar is loath to sue for one reason or another (it may fear that its demand for the money and the bank's refusal to pay it will cause the obligation to become payable in New York), it may be impossible for Citibank to establish Uruguayan law before it is too late. If the Government manages to levy on the account, and only afterwards is it established that the bank was liable to Omar, Citibank would be left to sue the United States for recoupment, an eventuality for which no provision has been made and which the Government stated at the oral argument of this case that it would oppose. (c) Citibank alleges that its foreign banking business will be hurt because foreign depositors will be discouraged from using United States banks for fear that their funds can be reached by United States courts. There is no sure way to gauge the seriousness of this possibility, but since Citibank is an innocent stakeholder here, doubt should be resolved in its favor. (d) The Uruguay Code of Civil Procedure provides, in rough translation: Art. 511. Judgments rendered in foreign states shall have in the Republic [Uruguay] the effect prescribed by applicable treaties. Art. 512. If there are not treaties with the nation in which they are rendered, they shall have the same effect which by the laws of that nation, it would give to the decrees rendered in the Republic. Art. 513. If the judgment proceeds from a nation in which by its jurisprudence, it would not give effect to the decrees of the Tribunals of the Republic, they [ sic ] shall have no force here. [22] When Omar sues Citibank in Montevideo for its account, Citibank will plead the United States decree as a defense, and the Court speculates that Uruguay will give it effect ( ante, pp. 384-385). In light of Uruguay's reciprocity principle the Court's decision implicitly signifies that our courts would recognize a similar order by a Uruguayan court. [23] Operating under a tax regulation similar to that adopted by the Government, a Uruguayan court with jurisdiction over the Montevideo branch of Citibank could freeze accounts in New York. [24] I am extremely reluctant to uphold such a power. The freeze orders of the type in question here issue prior to any court judgment, indeed before any significant proceedings at all. A nation asked to recognize such a freeze order will have virtually nothing to go on but the bare request. The propriety of the decree does not even rest on the reliability of the foreign court, as is the usual case in judgment recognition problems, [25] but on the reliability of the foreign taxing authorities, something a domestic court has no way of judging. The Court should not lose sight of the fact that our modern notions of substituted service and personal jurisdiction were developed within a framework of States whose various processes are governed by the Due Process Clause and whose judgments must be given full faith and credit by the other States within the federal structure. Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field, both as a basis for asserting federal judicial power with respect to property in foreign countries and for permitting property in this country to be tied up by foreign courts.",the overall balance of equities and considerations affecting jurisdiction. [20]
+683,106959,1,4,"There remains for consideration the quasi in rem issue which the Government argues but which the Court chooses not to decide. Whether the District Court had quasi in rem jurisdiction turns on whether Omar had property or rights to property within the Southern District of New York to which a federal lien could attach. [26] Under New York law, Omar had only a conditional right to payment in New York in the event that a demand made upon the Montevideo branch where the account is maintained was wrongfully refused, Sokoloff v. National City Bank, 250 N. Y. 69, 164 N. E. 745; [27] and two recent decisions by this Court establish that it is New York law which here determines the nature and existence of property rights for federal tax lien purposes. In United States v. Bess, 357 U. S. 51, the taxpayer died leaving income taxes unpaid for a prior year. Several life insurance policies were part of his estate. The Court said: We must now decide whether Mr. Bess possessed in his lifetime, within the meaning of § 3670, any `property' or `rights to property' in the insurance policies to which the perfected lien for the 1946 taxes might attach. Since § 3670 creates no property rights but merely attaches consequences, federally defined, to rights created under state law, . . . we must look first to Mr. Bess' right in the policies as defined by state law. 357 U. S., at 55. [28] Since Bess had had no right to the proceeds of the policies during his lifetime, no federal tax lien could have attached to them. But Bess could have drawn on the cash surrender value; thus under state law he had rights to property during his lifetime to that extent. However, it was also true under state law that no creditor was permitted to attach the cash surrender value of the policies. In answer to the contention that the Government should be treated no differently than any other creditor, the Court said: [O]nce it has been determined that state law creates sufficient interests in the insured to satisfy the requirements of § 3670, state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States. 357 U. S., at 56-57. On the basis of this analysis—that state law creates property rights, but federal law determines whether liens should attach to them—the Court concluded that the lien could be enforced against the beneficiary of the policies to the extent of the cash surrender value. Even under Bess an argument could be made for permitting a federal lien in this instance to attach in New York. New York law, which treats branch banks as separate entities and makes Omar's account payable in the first instance only in Montevideo, was developed primarily to meet the problems created by ordinary garnishing creditors, and arguably has no application to a claim by the United States. But the Court, in Aquilino v. United States, 363 U. S. 509, chose to accept state property law just as it found it, and not to evaluate its underlying rationale in light of the needs of federal revenue collection. There the Government sued a general contractor who had defaulted both on the payment of federal taxes and on the payment of amounts due to subcontractors with mechanics' liens. Money payable by the property owner to the general contractor was the subject of the suit. The subcontractors contended that under New York lien law the general contractor had mere title to the contested fund, holding it in trust for the subcontractors; thus, it was argued, he himself had no right to the property within the meaning of the federal lien statute. In remanding the case to determine if the New York law was as the subcontractors contended, the Court indicated it would accept this argument despite the fact that the only practical effect that New York's definition of the general contractor's property rights could have would be to control which creditors prevailed against the property. (See my dissenting opinion, 363 U. S., at 516.) The Court said: The application of state law in ascertaining the taxpayer's property rights and of federal law in reconciling the claims of competing lienors is based both upon logic and sound legal principles. This approach strikes a proper balance between the legitimate and traditional interest which the State has in creating and defining the property interest of its citizens, and the necessity for a uniform administration of the federal revenue statutes. 363 U. S., at 514. The State of New York has determined that branch banks should be treated as separate entities, primarily in order to avoid the crippling effects which could result from requiring each branch to be aware of and liable to make payments to depositors and garnishing creditors on accounts maintained in other branches. [29] If New York, based upon this policy, has determined that Omar has no immediate right to payment in New York, federal lien law, under Bess and Aquilino, cannot create one. The rule of those cases would not, I think, go so far as to allow an incidental contract provision adopted by two contracting parties simply for their own convenience to thwart the operation of federal lien law—for instance, an agreement that the parties would meet at a certain place to consummate their transaction—but in the present case the policy determination has been made by the State, not by private parties, and cannot be treated as incidental. The only right to property which New York recognizes in Omar is the conditional right to payment predicated on a wrongful refusal in Montevideo. The Government can, of course, levy on that conditional right, but the satisfaction it will derive from doing so is obviously limited. The Government seeks to analogize various insurance company cases in which liens are permitted to attach to the cash surrender value of policies despite a contract condition that the policyholder must surrender his policy in order to collect. [30] It is contended that just as federal courts can override the requirement of policy surrender, they can override the requirement of demand and wrongful refusal in Montevideo. The insurance cases, however, are readily distinguishable. The policy surrender requirement is of the order of an incidental rule of contract between two private contracting parties; indeed, it has been characterized as a housekeeping detail. [31] And if the purpose of requiring surrender of an insurance policy is to protect the company against suit at some later time, a court decree would fully satisfy it. The District Court guaranteed and could guarantee Citibank no such protection from suit by Omar. In conclusion on the quasi in rem branch of this case, it should be remembered that it is a statute which we are interpreting. [32] Section 1655, 28 U. S. C., pertaining to Lien enforcement; absent defendants, provides for quasi in rem jurisdiction in federal district courts over property within the district. Courts of other countries would recognize that the situs of the Omar account was in Montevideo. [33] Courts of New York State would so hold, [34] and where, as here, the common understanding would be that the situs of an account payable to a Uruguayan corporation in Montevideo is in Montevideo, we should not indulge a wholly novel interpretation of the governing statute. CONCLUSION. The only case cited by the Court relating to injunctions involving property outside the United States is New Jersey v. New York City, 283 U. S. 473, in which this Court enjoined New York City from dumping its garbage in the sea off the coast of New Jersey. [35] In the face of this slender reed stands De Beers, basically indistinguishable from the case at bar, plus the powerful equitable considerations enumerated above. The clear preponderance of the competing considerations leads to the conclusion that the issuance of this freeze order was not appropriate for the enforcement of the internal revenue laws (§ 7402 (a), n. 3, supra ), and therefore that the District Court, even though it possessed the naked power to act as it did, had no jurisdiction ( ibid. ) to issue the challenged order. The same result follows even if naked power be considered as synonymous with jurisdiction (a proposition which for me is wholly unacceptable) for in that event the action of the District Court must be regarded as entailing an abuse of discretion of such magnitude and mischievous radiations in our general jurisprudence as to make the order a proper subject of review by this Court under its supervisory powers. [36] While I have the utmost sympathy with the Government's efforts to protect the revenue, I do not think the course it has taken here can be sustained without extending federal court jurisdiction beyond permissible limits. I vote to affirm the judgment of the Court of Appeals.",quasi in rem jurisdiction.
+684,106864,1,1,"The privilege against self-incrimination registers an important advance in the development of our liberty— `one of the great landmarks in man's struggle to make himself civilized.'  Ullmann v. United States, 350 U. S. 422, 426. [4] It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load, 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life, United States v. Grunewald, 233 F. 2d 556, 581-582 (Frank, J., dissenting), rev'd 353 U. S. 391; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent. Quinn v. United States, 349 U. S. 155, 162. Most, if not all, of these policies and purposes are defeated when a witness can be whipsawed into incriminating himself under both state and federal law even though the constitutional privilege against self-incrimination is applicable to each. Cf. Knapp v. Schweitzer, 357 U. S. 371, 385 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of cooperative federalism, where the Federal and State Governments are waging a united front against many types of criminal activity. [5] Respondent contends, however, that we should adhere to the established rule that the constitutional privilege against self-incrimination does not protect a witness in one jurisdiction against being compelled to give testimony which could be used to convict him in another jurisdiction. This rule has three decisional facets: United States v. Murdock, 284 U. S. 141, held that the Federal Government could compel a witness to give testimony which might incriminate him under state law; Knapp v. Schweitzer, 357 U. S. 371, held that a State could compel a witness to give testimony which might incriminate him under federal law; and Feldman v. United States, 322 U. S. 487, held that testimony thus compelled by a State could be introduced into evidence in the federal courts. Our decision today in Malloy v. Hogan, supra , necessitates a reconsideration of this rule. [6] Our review of the pertinent cases in this Court and of their English antecedents reveals that Murdock did not adequately consider the relevant authorities and has been significantly weakened by subsequent decisions of this Court, and, further, that the legal premises underlying Feldman and Knapp have since been rejected.",the policies of the privilege.
+685,106864,1,2,"
+In 1749 the Court of Exchequer decided East India Co. v. Campbell , 1 Ves. sen. 246, 27 Eng. Rep. 1010. The defendant in that case refused to discover certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be: that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime . . . and that he is punishable appears from the case of Omichund v. Barker, [1 Atk. 21.] as a jurisdiction is erected in Calcutta for criminal facts: where he may be sent to government and tried, though not punishable here; like the case of one who was concerned in a rape in Ireland, and sent over there by the government to be tried, although the court of B. R. here refused to do it . . . for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals. 1 Ves. sen., at 247, 27 Eng. Rep., at 1011. In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157, refused to discover, whether she was lawfully married to a certain individual, on the ground that if she admitted to the marriage she would be confessing to an act which, although legal under the common law, would render her liable to prosecution in ecclesiastical court. The Lord Chancellor said: This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage; and I am afraid, if the court should over-rule such a plea, it would be setting up the oath ex officio; which then the parliament in the time of Charles I. would in vain have taken away, if the party might come into this court for it. The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land. 2 Ves. sen., at 244-245, 28 Eng. Rep., at 158.
+It was against this background of English case law that this Court in 1828 decided United States v. Saline Bank of Virginia, 1 Pet. 100. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stock-holders. The defendants resisted discovery of any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines . . . . Id., at 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows: This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia. The Court below decided in favour of the validity of the plea, and dismissed the bill. It is apparent that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. The decree of the Court below is therefore affirmed. Id., at 104. This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.
+In 1851, the English Court of Chancery decided King of the Two Sicilies v. Willcox, 1 Sim. (N. S.) 301, 61 Eng. Rep. 116, a case which this Court in United States v. Murdock, 284 U. S. 141, erroneously cited as representing the settled English rule that a witness is not protected against disclosing offenses in violation of the laws of another country. Id., at 149. Defendants in that case resisted discovery of information, which, they asserted, might subject them to prosecution under the laws of Sicily. In denying their claim, the Vice Chancellor said: The rule relied on by the Defendants, is one which exists merely by virtue of our own municipal law, and must, I think, have reference, exclusively, to matters penal by that law: to matters as to which, if disclosed, the Judge would be able to say, as matter of law, whether it could or could not entail penal consequences. 1 Sim. (N. S.), at 329, 61 Eng. Rep., at 128. Two reasons were given in support of this statement: (1) The impossibility of knowing, as matter of law, to what cases the objection, when resting on the danger of incurring penal consequences in a foreign country, may extend. . . , id., at 331, 61 Eng. Rep., at 128; and (2) the fact that in such a case, in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated. [7] ibid., 61 Eng. Rep., at 128. Within a few years, the pertinent part of King of the Two Sicilies was specifically overruled by the Court of Chancery Appeal in United States of America v. McRae, L. R., 3 Ch. App. 79 (1867), a case not mentioned by this Court in United States v. Murdock, supra . In McRae, the United States sued in an English court for an accounting and payment of moneys allegedly received by the defendant as agent for the Confederate States during the Civil War. The defendant refused to answer questions on the ground that to do so would subject him to penalties under the laws of the United States. The United States argued that the protection from answering applies only where a person might expose himself to the peril of a penal proceeding in this country [England], and not to the case where the liability to penalty or forfeiture is incurred by the breach of the laws of a foreign country [the United States]. L. R., 3 Ch. App., at 83-84. The United States relied on King of the Two Sicilies v. Willcox, supra . The Lord Chancellor sustained the claim of privilege and limited King of the Two Sicilies to its facts. He said: I quite agree in the general principles stated by Lord Cranworth, and in their application to the particular case before him.. . . [The defendants there] did not furnish the least information what the foreign law was upon the subject, though it was necessary for the Judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not.. . . [Moreover,] it was doubtful whether the Defendants would ever be within the reach of a prosecution, and their being so depended on their voluntary return to [Sicily]. L. R., 3 Ch. App., at 84-87. In refusing to follow King of the Two Sicilies beyond its particular facts, the court said: But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the Defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced . . . . What would have been Lord Cranworth's opinion upon [the present] state of circumstances it is impossible for me to conjecture; but it is very different from that which was before his mind in that case, and I cannot feel that there is any judgment of his which ought to influence my decision upon the present occasion. Id., at 85. The court then concluded that under the circumstances it could not distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law. Id., at 87. This decision, not King of the Two Sicilies, represents the settled English rule regarding self-incrimination under foreign law. See Heriz v. Riera, 11 Sim. 318, 59 Eng. Rep. 896.",the early english and american cases.
+686,106864,2,1,"In 1749 the Court of Exchequer decided East India Co. v. Campbell , 1 Ves. sen. 246, 27 Eng. Rep. 1010. The defendant in that case refused to discover certain information in a proceeding in an English court on the ground that it might subject him to punishment in the courts of India. The court unanimously held that the privilege against self-incrimination protected a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction. The court stated the rule to be: that this court shall not oblige one to discover that, which, if he answers in the affirmative, will subject him to the punishment of a crime . . . and that he is punishable appears from the case of Omichund v. Barker, [1 Atk. 21.] as a jurisdiction is erected in Calcutta for criminal facts: where he may be sent to government and tried, though not punishable here; like the case of one who was concerned in a rape in Ireland, and sent over there by the government to be tried, although the court of B. R. here refused to do it . . . for the government may send persons to answer for a crime wherever committed, that he may not involve his country; and to prevent reprisals. 1 Ves. sen., at 247, 27 Eng. Rep., at 1011. In the following year, this rule was applied in a case involving separate systems of courts and law located within the same geographic area. The defendant in Brownsword v. Edwards, 2 Ves. sen. 243, 28 Eng. Rep. 157, refused to discover, whether she was lawfully married to a certain individual, on the ground that if she admitted to the marriage she would be confessing to an act which, although legal under the common law, would render her liable to prosecution in ecclesiastical court. The Lord Chancellor said: This appears a very plain case, in which defendant may protect herself from making a discovery of her marriage; and I am afraid, if the court should over-rule such a plea, it would be setting up the oath ex officio; which then the parliament in the time of Charles I. would in vain have taken away, if the party might come into this court for it. The general rule is, that no one is bound to answer so as to subject himself to punishment, whether that punishment arises by the ecclesiastical law of the land. 2 Ves. sen., at 244-245, 28 Eng. Rep., at 158.",The English Cases Before the Adoption of the Constitution.
+687,106864,2,2,"It was against this background of English case law that this Court in 1828 decided United States v. Saline Bank of Virginia, 1 Pet. 100. The Government, seeking to recover certain bank deposits, brought suit in the District Court against the bank and a number of its stock-holders. The defendants resisted discovery of any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the commonwealth of Virginia, to penalties and grievous fines . . . . Id., at 102. The unanimous opinion of the Court, delivered by Chief Justice Marshall, reads as follows: This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia. The Court below decided in favour of the validity of the plea, and dismissed the bill. It is apparent that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. The decree of the Court below is therefore affirmed. Id., at 104. This case squarely holds that the privilege against self-incrimination protects a witness in a federal court from being compelled to give testimony which could be used against him in a state court.",The Saline Bank Case.
+688,106864,1,3,"In 1896, in Brown v. Walker, 161 U. S. 591, this Court, for the first time, sustained the constitutionality of a federal immunity statute. Appellant in that case argued, inter alia, that: while the witness is granted immunity from prosecution by the Federal government, he does not obtain such immunity against prosecution in the state courts. Id., at 606. The Court construed the applicable statute, however, to prevent prosecutions either in state or federal courts. [8] Shortly thereafter, the Court decided Jack v. Kansas, 199 U. S. 372, in which the state court had held plaintiff in error in contempt for his refusal to answer certain questions on the ground that they would subject him to possible incrimination under federal law. In rejecting plaintiff's claim, this Court said that the Fifth Amendment has no application in a proceeding like this, and hence the sole question in the case is whether the denial of his claim of right to refuse to answer the questions was in violation of the Fourteenth Amendment to the Constitution . . . . Id., at 380. The Court stated that it did not believe that in such case there is any real danger of a Federal prosecution, or that such evidence would be availed of by the Government for such purpose. Id., at 382. Then, without citing any authority, the Court added the following cryptic dictum: We think the legal immunity is in regard to a prosecution in the same jurisdiction, and when that is fully given it is enough. Ibid. That this dictum related solely to the legal immunity under the Due Process Clause of the Fourteenth Amendment is apparent from the fact that it was regarded, five weeks later in Ballmann v. Fagin, 200 U. S. 186, as wholly inapplicable to cases decided under the Self-Incrimination Clause of the Fifth Amendment. [9] Ballmann had been held in contempt of a federal court for refusing to answer certain questions before a federal grand jury. He claimed that his answers might expose him to the criminal law of the State in which the grand jury was sitting. Id., at 195. Justice Holmes, writing for a Court which included the author of Jack v. Kansas, supra , squarely held that [a]ccording to United States v. Saline Bank, 1 Peters, 100, he was exonerated from disclosures which would have exposed him to the penalties of the state law. See Jack v. Kansas, 199 U. S. 372, decided this term. 200 U. S., at 195. A few months after Ballmann, the Court decided Hale v. Henkel, 201 U. S. 43. Appellant had been held in contempt of a federal court for refusing to answer certain questions and produce certain documents. His refusal was based in part on the argument that the federal immunity statute did not protect him from state prosecution. The Government argued, on the authority of Brown v. Walker, supra , that the statute did protect him from state prosecution. The Government assumed that it was settled that a valid federal immunity statute would have to protect against state prosecution. It never suggested, therefore, that immunity from federal prosecution was all that was required. Appellant similarly assumed, without argument, that the Constitution required immunity from state conviction as a condition of requiring incriminating testimony in a federal court. Thus the critical constitutional issue—whether the Fifth Amendment protects a federal witness from incriminating himself under state law—was not briefed or argued in Hale v. Henkel . Nor was its resolution necessary to the decision of the case, for the Court could have decided the relevant point on the authority of Brown v. Walker, supra , which had held that a similar federal immunity statute protected against state prosecution. Nevertheless, the Court went on to say: The question has been fully considered in England, and the conclusion reached by the courts of that country that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 B. & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials (N. S.), 1049, 1068; State v. March, 1 Jones (N. Car.), 526; State v. Thomas , 98 N. Car. 599. The case of United States v. Saline Bank, 1 Pet. 100, is not in conflict with this. That was a bill for discovery, filed by the United States against the cashier of the Saline Bank, in the District Court of the Virginia District, who pleaded that the emission of certain unlawful bills took place, within the State of Virginia, by the law whereof penalties were inflicted for such emissions. It was held that defendants were not bound to answer and subject themselves to those penalties. It is sufficient to say that the prosecution was under a state law which imposed the penalty, and that the Federal court was simply administering the state law, and no question arose as to a prosecution under another jurisdiction. 201 U. S., at 69. This dictum, subsequently relied on in United States v. Murdock, supra , was not well founded. The settled English rule was exactly the opposite of that stated by the Court. The most recent authoritative announcement of the English rule had been that made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a foreign country, the case could not be distinguished in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law. Supra, at 63. The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel had been rejected in McRae. Moreover, the two factors relied on by the English court in King of the Two Sicilies were wholly inapplicable to federal-state problems in this country. The first—The impossibility of knowing, as matter of law, to what cases the [danger of incrimination] may extend . . . , supra, at 60—has no force in our country where the federal and state courts take judicial notice of each other's law. The second—that in order to make the disclosure dangerous to the party who objects, it is essential that he should first quit the protection of our laws, and wilfully go within the jurisdiction of the laws he has violated, supra, at 60-61—is equally inapplicable in our country where the witness is generally within the jurisdiction of the State under whose law he claims danger of incrimination, and where, if he is not, the State may demand his extradition. The second case relied on in Hale v. Henkel, supra — The Queen v. Boyes, supra —was irrelevant to the issue there presented. The Queen v. Boyes did not involve different jurisdictions or systems of law. It merely held that the danger of prosecution must be real and appreciable. . . not a danger of an imaginary and unsubstantial character . . . . It in no way suggested that the danger of prosecution under foreign law could be ignored if it was real and appreciable. [10] Thus, the authorities relied on by the Court in Hale v. Henkel provided no support for the conclusion that under the Fifth Amendment the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Nor was its attempt to distinguish Chief Justice Marshall's opinion in United States v. Saline Bank of Virginia, supra , more successful. The Court's reading of Saline Bank suggests that the state, rather than the federal, privilege against self-incrimination applies to federal courts when they are administering state substantive law. The most reasonable reading of that case, however, and the one which was plainly accepted by Justice Holmes in Ballmann v. Fagin, supra , is that the privilege against self-incrimination precludes a federal court from requiring an answer to a question which might incriminate the witness under state law. [11] This reading is especially compelling in light of the English antecedents of the Saline Bank case. See East India Co. v. Campbell , discussed, supra, at 58; and Brownsword v. Edwards, discussed, supra, at 58-59. The weakness of the Hale v. Henkel dictum was immediately recognized both by lower federal courts [12] and by this Court itself. In Vajtauer v. Commissioner of Immigration, 273 U. S. 103, decided in 1927 by a unanimous Court, appellant refused to answer certain questions put to him in a deportation proceeding on the ground that they might have tended to incriminate him under the Illinois Syndicalism Law . . . . Id., at 112. Instead of deciding the issue on the authority of the Hale v. Henkel dictum, the Court held that the privilege had been waived. The Court then said: This conclusion makes it unnecessary for us to consider the extent to which the Fifth Amendment guarantees immunity from self-incrimination under state statutes or whether this case is to be controlled by Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591, 608; compare United States v. Saline Bank, 1 Pet. 100; Ballmann v. Fagin, 200 U. S. 186, 195. 273 U. S., at 113. In a subsequent case, decided in 1933, this Court said that the question—whether one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law—was specifically reserved in Vajtauer v. Comm'r of Immigration,  and was not definitely settled until 1931. United States v. Murdock, 290 U. S. 389, 396. In 1931, the Court decided United States v. Murdock, 284 U. S. 141, the case principally relied on by respondent here. Appellee had been indicted for failing to supply certain information to federal revenue agents. He claimed that his refusal had been justified because it rested on the fear of federal and state incrimination. The Government argued that the record supported only a claim of state, not federal, incrimination, and that the Fifth Amendment does not protect against a claim of state incrimination. Appellee did not respond to the latter argument, but instead rested his entire case on the claim that his refusals had in each instance been based on federal as well as state incrimination. In support of its constitutional argument, the Government cited the same two English cases erroneously relied on in the Hale v. Henkel dictum— King of the Two Sicilies v. Willcox, supra , which had been overruled, and The Queen v. Boyes, supra , which was wholly inapposite. An examination of the briefs and summary of argument indicates that neither the Government nor the appellee informed the Court that King of the Two Sicilies had been overruled by United States of America v. McRae, supra . [13] This Court decided that appellee's refusal to answer rested solely on a fear of state prosecution, and then concluded, in one brief paragraph, that such a fear did not justify a refusal to answer questions put by federal officers. The Court gave three reasons for this conclusion. The first was that: Investigations for federal purposes may not be prevented by matters depending upon state law. Constitution, Art. VI, § 2. 284 U. S., at 149. This argument, however, begs the critical question. No one would suggest that state law could prevent a proper federal investigation; the Court had already held that the Federal Government could, under the Supremacy Clause, grant immunity from state prosecution, and that, accordingly, state law could not prevent a proper federal investigation. The critical issue was whether the Federal Government, without granting immunity from state prosecution, could compel testimony which would incriminate under state law. The Court's first reason was not responsive to this issue. The second reason given by the Court was that: The English rule of evidence against compulsory self-incrimination, on which historically that contained in the Fifth Amendment rests, does not protect witnesses against disclosing offenses in violation of the laws of another country. King of the Two Sicilies v. Willcox, 7 State Trials (N. S.) 1050, 1068. Queen v. Boyes, 1 B. & S. 311, 330. 284 U. S., at 149. As has been demonstrated, the cases cited were in one instance overruled and in the other inapposite, and the English rule was the opposite from that stated in this Court's opinion: The rule did protect witnesses against disclosing offenses in violation of the laws of another country. United States of America v. McRae, supra . The third reason given by the Court in Murdock was that: This court has held that immunity against state prosecution is not essential to the validity of federal statutes declaring that a witness shall not be excused from giving evidence on the ground that it will incriminate him, and also that the lack of state power to give witnesses protection against federal prosecution does not defeat a state immunity statute. The principle established is that full and complete immunity against prosecution by the government compelling the witness to answer is equivalent to the protection furnished by the rule against compulsory self-incrimination. Counselman v. Hitchcock, 142 U. S. 547. Brown v. Walker, 161 U. S. 591, 606. Jack v. Kansas, 199 U. S. 372, 381. Hale v. Henkel, 201 U. S. 43, 68. 284 U. S., at 149. This argument—that the rule in question had already been established by the past decisions of the Court—is not accurate. The first case cited by the Court— Counselman v. Hitchcock —said nothing about the problem of incrimination under the law of another sovereign. The second case— Brown v. Walker —merely held that the federal immunity statute there involved did protect against state prosecution. The third case— Jack v. Kansas —held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling an answer to a question which presented no real danger of a Federal prosecution. 199 U. S., at 382. The final case— Hale v. Henkel —contained dictum in support of the rule announced which was without real authority and which had been questioned by a unanimous Court in Vajtauer v. Commissioner of Immigration, supra . Moreover, the Court subsequently said, in no uncertain terms, that the rule announced in Murdock had not been previously established by the decisions of the Court. When Murdock appealed his subsequent conviction on the ground, inter alia, that an instruction on willfulness should have been given, the Court affirmed the Court of Appeals' reversal of his conviction and said that: Not until this court pronounced judgment in United States v. Murdock, 284 U. S. 141, had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved, but not decided, in Ballmann v. Fagin, 200 U. S. 186, 195, and specifically reserved in Vajtauer v. Comm'r of Immigration, 273 U. S. 103, 113. United States v. Murdock, 290 U. S. 389, 396. Thus, neither the reasoning nor the authority relied on by the Court in United States v. Murdock, 284 U. S. 141, supports its conclusion that the Fifth Amendment permits the Federal Government to compel answers to questions which might incriminate under state law. In 1944 the Court, in Feldman v. United States, 322 U. S. 487, was confronted with the situation where evidence compelled by a State under a grant of state immunity was availed of by the [Federal] Government and introduced in a federal prosecution. Jack v. Kansas, 199 U. S., at 382. This was the situation which the Court had earlier said it did not believe would occur. Ibid. Nevertheless, the Court, in a 4-to-3 decision, upheld this practice, but did so on the authority of a principle which is no longer accepted by this Court. The Feldman reasoning was essentially as follows: [T]he Fourth and Fifth Amendments, intertwined as they are, [express] supplementing phases of the same constitutional purpose . . . . 322 U. S. 489-490. [O]ne of the settled principles of our Constitution has been that these Amendments protect only against invasion of civil liberties by the [Federal] Government whose conduct they alone limit. Id., at 490. And so, while evidence secured through unreasonable search and seizure by federal officials is inadmissible in a federal prosecution, Weeks v. United States, supra; . . . incriminating documents so secured by state officials without participation by federal officials but turned over for their use are admissible in a federal prosecution. Burdeau v. McDowell, 256 U. S. 465. 322 U. S., at 492. The Court concluded, therefore, by analogy to the then extant search and seizure rule, that evidence compelled by a state grant of immunity could be used by the Federal Government. But the legal foundation upon which that 4-to-3 decision rested no longer stands. Evidence illegally seized by state officials may not now be received in federal courts. In Elkins v. United States, 364 U. S. 206, the Court held, over the dissent of the writer of the Feldman decision, that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial. 364 U. S., at 223. Thus, since the fundamental assumption underlying Feldman is no longer valid, the constitutional question there decided must now be regarded as an open one. The relevant cases decided by this Court since Feldman fall into two categories. Those involving a federal immunity statute—exemplified by Adams v. Maryland, 347 U. S. 179—in which the Court suggested that the Fifth Amendment bars use by the States of evidence obtained by the Federal Government under the threat of contempt. And those involving a state immunity statute —exemplified by Knapp v. Schweitzer, 357 U. S. 371—where the Court, applying a rule today rejected, held the Fifth Amendment inapplicable to the States. [14] In Adams v. Maryland, supra , petitioner had testified before a United States Senate Committee investigating crime, and his testimony had later been used to convict him of a state crime. A federal statute at that time provided that no testimony given by a witness in congressional inquiries shall be used as evidence in any criminal proceeding against him in any court . . . . 62 Stat. 833. The State questioned the application of the statute to petitioner's testimony and the constitutionality of the statute if construed to apply to state courts. The Court, in an opinion joined by seven members, made the following significant statement: a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute. 347 U. S., at 181. [15] This statement suggests that any testimony elicited under threat of contempt by a government to whom the constitutional privilege against self-incrimination is applicable (at the time of that decision it was deemed applicable only to the Federal Government) may not constitutionally be admitted into evidence against him in any criminal trial conducted by a government to whom the privilege is also applicable. This statement, read in light of today's decision in Malloy v. Hogan, ante, at 1, draws into question the continuing authority of the statements to the contrary in United States v. Murdock, 284 U. S. 141, and Feldman v. United States, supra. [16] Knapp v. Schweitzer, 357 U. S. 371, involved a state contempt conviction for a witness' refusal to answer questions, under a grant of state immunity, on the ground that his answers might subject him to prosecution under federal law. Petitioner claimed that the Fifth Amendment gives him the privilege, which he can assert against either a State or the National Government, against giving testimony that might tend to implicate him in a violation of federal law. Id., at 374. The Court, applying the rule then in existence, denied petitioner's claim and declared that: It is plain that the [Fifth Amendment] can no more be thought of as restricting action by the States than as restricting the conduct of private citizens. The sole—although deeply valuable—purpose of the Fifth Amendment privilege against self-incrimination is the security of the individual against the exertion of the power of the Federal Government to compel incriminating testimony with a view to enabling that same Government to convict a man out of his own mouth. Id., at 380. The Court has today rejected that rule, and with it, all the earlier cases resting on that rule. The foregoing makes it clear that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.",the recent supreme court cases.
+689,107292,1,1,"Lake Calumet Harbor Port is one of seven facilities within the Port of Chicago available for the handling of water-borne freight. It is a shallow lake approximately two miles in length and covers approximately 1,250 acres. It is accessible by water from Lake Michigan via the Calumet River into the heart of the Chicago switching district, a distance of some six miles. As early as 1880 one of the Pullman companies constructed trackage that first brought rail service to Lake Calumet. Pullman reserved some 300 to 500 acres for the development of a harbor and later donated some acreage to the United States for the development of a turning basin. Comprehensive plans for dredging Lake Calumet harbor and the filling of submerged lands were prepared in 1916 by an engineer for the City of Chicago. In 1917 Pullman waived riparian rights to some four miles of Lake Calumet shoreline to the City of Chicago and in 1935 gave additional land to the United States for the purpose of widening the Calumet River. In 1947 the Illinois Central, an appellant here, attempted to enter the port area. Pullman and two of the seven appellants here. New York Central and the Belt Railway Company of Chicago, opposed the application which was addressed to the Illinois Commerce Commission. In 1949, during the pendency of the proceeding, Rock Island acquired the common stock and certain industrial property of Pullman for $2,200,000. Rock Island then entered the proceedings in opposition to Illinois Central. The application of the latter was approved by the Illinois Commerce Commission but the Circuit Court of Cook County rejected it and the Supreme Court of Illinois affirmed in 1953. Chicago, R. I. & P. R. Co. v. Illinois Commerce Commission ex rel. Illinois Central R. Co., 414 Ill. 134, 111 N. E. 2d 136. The Interstate Commerce Commission in approving the acquisition of Pullman by Rock Island—over the objections of Illinois Central and the Belt Railway Company, each of which also sought to acquire Pullman or a portion of its trackage on the lake—imposed certain conditions on Rock Island designed to guarantee fair practices, assure nondiscriminatory handling of the traffic of other railroads to and from the lake and guarantee the mutuality of traffic and operating relationships theretofore existing between Pullman and the other roads. Rock Island, however, continued to be the only line providing direct service to the port. The Chicago Regional Port District was created as a municipal corporation by the State of Illinois in 1951. Its purpose was the development of Lake Calumet into a major deep water port facility for both domestic and import-export traffic via the St. Lawrence Seaway. In 1954 the Port District declared by resolution that the public's, as well as the port's, interest required that its trackage be accessible to as many railroads as possible. In 1955 the Port District acquired the lake and some adjoining property from the City of Chicago and began dredging the lake and constructing port facilities at its southern end; it also built 14 miles of railroad yard hold tracks in the port, docks, two 6,500,000-bushel grain elevators, three transit sheds occupying 300,000 square feet of space, a back-up warehouse with 200,000 square feet of space, and streets. These facilities cost $24,000,000 and were paid for by the sale of Port District revenue bonds. By contract with the Port District the Rock Island operates over the trackage of the Port District and also serves the Calumet Harbor Terminals, Inc., a private harbor facility. No other railroads reach the port on their own tracks. The Nickel Plate is the nearest rail facility. As previously noted, it has trackage on the east side of the lake which has been reserved for future development by the Port District. Any railroad wishing to service the port must use the facilities of Rock Island.",background of lake calumet harbor port.
+690,107292,1,2,"On October 22, 1956, the appellants Illinois Central Railroad Company and the Pennsylvania Railroad Company, requested authority from the Commission under the provisions of 49 U. S. C. § 1 (18) to construct 1.431 miles of new track that would connect their lines to the present trackage of an affiliate of Illinois Central that passes near Lake Calumet's southwestern shore. Similar applications were subsequently filed by the Chicago South Shore and South Bend Railroad, the Belt Railway Company of Chicago, the Michigan Central Railroad Company, the New York Central Railroad Company and the Indiana Harbor Belt Railroad Company. All of the applicants sought to operate directly to and from the Lake Calumet port, rather than use the facilities of the Rock Island. The latter, as well as the Nickel Plate, requested and was given leave to intervene as were other parties. [3] The Rock Island and Nickel Plate were the only objectors, the remaining intervenors all supporting the applications. The original applications of the seven railroads did not specifically request authority from the Commission to operate over the Port District's tracks. It appears that appellants were under the impression that formal Commission authority was not necessary because of the fact that Rock Island was currently operating without it. Nevertheless, the applications covered the entire plan of operations proposed by appellants, including activity within the Port District as well as an unexecuted agreement covering the leasing of the Port District facilities which was attached to the application as an exhibit. This lease was before the Hearing Examiner during the 12-day joint hearing he conducted and was the subject of testimony and consideration. The appellants advised, and the Hearing Examiner concluded, that the appellants sought approval to operate within the Port District, as well as authority for the track extension. Accordingly, the Hearing Examiner recommended to the Commission that the entire project of the appellants be approved. On October 5, 1959, the Commission adopted the Hearing Examiner's recommendations but ruled that the applicants should file supplemental applications covering their proposed operations within the Port District, as provided in the proposed lease with the District. The Commission discussed the lease and indicated that it was satisfactory. It did, however, feel that the exclusive right of operation clause should be eliminated. The Commission also ruled that Rock Island's service to Calumet Harbor Terminals, Inc., was not to be disrupted and that every industry located at Lake Calumet Harbor was to have direct rail service, not only from the applicants but the Rock Island and Nickel Plate, if they so elected. In April 1960, the appellants, pursuant to the Commission's requirement, filed supplemental applications for specific authority to operate within the Port District. The proposed lease covered by these applications eliminated the exclusionary provisions to which the Commission had objected. Despite the request of Rock Island and Nickel Plate for a hearing on the new lease the Commission found that the technical deficiency existing in appellants' original applications had been corrected by the filing of their supplemental applications; that the record of the previous hearing was adequate to support approval of the entire proposal of the appellants; and the applications, as supplemented, were approved. In June 1961, however, the appellants and the Port District found it necessary to amend their operating agreement and appellants filed a second supplemental application asking for approval of the same. This agreement modified the one previously approved by the Commission. The old agreement had provided for a 5% annual rental for the use of the Port District's rail facilities based upon the valuation of the latter, but not to exceed $2 per car, loaded or empty, including locomotives. The new agreement provided for a flat charge of $2 for each loaded freight car; it also specifically eliminated industry-owned tracks within the Port District from the agreement; and provided that it did not affect the right of Rock Island to operate in the Port District nor grant any exclusive privilege to the appellants. The Commission, after once again denying appellees' request for a hearing, approved this final agreement on November 26, 1962. The Commission found that the changes merely clarified the rights and responsibilities of the parties. As to the rentals it found that rentals generally may be considered reasonable where, as here, the facts of record disclose that nonaffiliated parties, after bargaining at arm's length, have entered into an agreement under which increased service will be offered to the public, all parties to the agreement will benefit financially, and the interveners' ability to continue to serve the public will not be impaired. [4]",the applications before the commission.
+691,107292,1,4,"At the outset the Commission and the appellant railroads contend that the court did not apply the correct standards in reviewing the Commission's action. As we have noted, the court did reject certain conclusions of the Commission, as above indicated, with respect to the public convenience and necessity for additional rail service to Lake Calumet port on the ground that they did not have ample support in the record. The test on judicial review is, of course, whether the action of the Commission is supported by substantial evidence on the record viewed as a whole, 5 U. S. C. § 1009 (e) (5). Substantial evidence is enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939). A careful reading of the opinion leads us to conclude that the court was applying the test of substantiality. Indeed, at four separate places in the opinion it uses the term substantial evidence as being the necessary requirement. As unfortunate as it is that the ample support language crept into the decision, we do not believe that the court was creating a novel formulation but rather inadvertently used the ample support terminology merely to meet the same language in the dissent referring to the conclusions of the Commission. We have concluded that the court erred in setting aside the conclusions of the Commission. The Act authorizes the issuance of certificates such as the ones sought here when the Commission finds that the future public convenience and necessity will require additional railroad service. 49 U. S. C. § 1 (18). This Court has repeatedly held that if a railroad, voluntarily proposing the extension of its lines, can show that its proposal either presently or in the reasonably near future will be self-sustaining, or so nearly so as not unduly to burden interstate commerce, the Commission may issue a certificate authorizing the proposed line, Interstate Commerce Commission v. Oregon-Wash. R. & Nav. Co., 288 U. S. 14, 37 (1933). The Commission, however, must be convinced that the proposed venture will not drain the railroad's resources and disable it from performing those duties of public service under which it then rested, with consequent detriment to the public in the matter of service and rates. Ibid. Also see Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, 277 (1926); Chesapeake & O. R. Co. v. United States, 283 U. S. 35, 42 (1931). Rock Island and Nickel Plate contend that the evidence [of appellants] adduced before the Commission was so totally devoid of factual possibility as to be no evidence at all. As we read it, the evidence as to the future possibilities of the port was somewhat conflicting. The Commission, in keeping with its duty, resolved this conflict. Indeed, the findings of the Commission, which were upheld by the District Court, completely refute the Rock Island and Nickel Plate claims. Among the findings approved by the court [5] are the following: The port was the major deepwater port facility of the port of Chicago, with unparalleled access to barge, rail, lake steamer and motor transportation and complete access to ocean transportation in the immediate future, with 71,490,510 tons of water-borne traffic in 1955 and with material increases [6] in tonnages predicted for the future from among an estimated 600 to 900 vessels coming to the Chicago port each season, that will necessitate a substantially broadened railroad service into and out of the Lake Calumet port; appellants' combined yard capacity was 61,601 cars, more than 12 times that presently available at the port; appellants' routing would be more direct, entail less handling, expedite shipments and be less expensive than the present operation of Rock Island; and, finally, it was imperative . . . that at the very beginning of this new era of development a plan and system for handling the transportation needs of the port be established which will assure the type of service that is expected and will provide for steady progress and expansion. We believe that these findings, in the light of others not overturned by the District Court, are sufficient to sustain the Commission's action in issuing the certificates. Moreover, we believe that the District Court erred in striking down the conclusions of the Commission. These conclusions [7] included: Consideration of the whole record warranted the finding that the applications should be granted; granting them would result in greater rail competition, better service, greater car supply and lower rates for the industries served by the port; appellants would be on a par with the Rock Island in solicitation of grain traffic, and by having control of their cars they could return empties in a fast shuttle service to country elevators without interchange with Rock Island; the time has come when additional freight service is required for the future development of the Port District; better service can be given through elimination of delays, by single-line hauls or more direct hauls; a single trunkline railroad service would be detrimental and a hindrance to the development of the harbor, and, although the port is served by some 100 common carrier trucklines, the Rock Island is the only railroad presently serving the port; the future convenience and necessity must be given a higher value than the present convenience and necessity; the proposed construction either presently or in the reasonably near future is necessary to meet a public need and will be reasonably profitable; and, finally, considering the expansion program at the port and the increased rail traffic to be made available the Commission is of the opinion that the additional service . . . is warranted. As we have said, these conclusions were largely based upon previous Commission findings which the District Court approved. The Commission's function is to draw such reasonable conclusions from its findings as in its discretion are appropriate. As we said in Consolo v. Federal Maritime Comm'n, 383 U. S. 607, 620 (1966), the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. It is not for the court to strike down conclusions that are reasonably drawn from the evidence and findings in the case. Its duty is to determine whether the evidence supporting the Commission's findings is substantial, Universal Camera Corp. v. Labor Board, 340 U. S. 474 (1951). Having found that there was substantial support in the record for the Commission's findings as to the port's future potential and the necessity of providing competitive rail service at the outset of the port's development, it was not the District Court's function to substitute its own conclusions for those which the Commission had fairly drawn from such findings. Its agreement with the controlling subsidiary findings required the District Court to sustain the Commission's conclusions. The court also erred, we believe, in ordering a new hearing on the issues. It found that the Commission's order issuing a certificate of public convenience and necessity to operate within the Port District was not supported by sufficient evidence and violated due process in that a hearing was not afforded the appellees thereon. As we view the original applications of the appellants they proposed to extend their operations to serve the Lake Calumet Harbor District near Chicago, in Cook County, Illinois . . . future industries, elevators, warehouses, docks and piers in the Calumet Harbor Port area. The prayer was that your Commission issue a certificate of public convenience and necessity authorizing the construction and operation for which authority is herein sought. [8] The proceeding came on for a hearing before the Hearing Examiner on September 30, 1957, and counsel for the Rock Island stated for the record that his understanding was the issue in this case is that all applications are for the purpose of handling import and export business only to and from the Port District Harbor of Chicago . . . . (Emphasis supplied.) And counsel for the appellants stated that the plan was to handle interstate business to and from the area over which the port has jurisdiction. We have no such limitation at all as to import or export trade. Likewise, the Return to Questionnaire executed by appellants stated: The line proposed to be constructed and operated will receive material revenue from freight traffic to be handled to and from industries, elevators, warehouses, docks, and piers presently operating in the Calumet Harbor Port area, in addition to those facilities to be constructed with the further development of the area. [9] To make it crystal clear paragraph 10 of the same answer to the questionnaire stated: The Lake Calumet Port District, which the proposed line will serve is currently served by the Chicago, Rock Island and Pacific Railroad Company by virtue of its acquisition of the Pullman Railroad Company, through purchase of capital stock, and lease by the former of the railroad property of the latter approved and authorized by the Commission in Finance Docket No. 16252, Pullman Railroad Company Control, decided November 17, 1949. The other applications had similar allegations and the other appellants' questionnaire returns contained like statements. Moreover, the answers filed on May 16, 1957, by Rock Island and Pullman to the applications, addressed themselves solely to the proposition that applicant's extension of its line of railroad and operations through trackage rights to serve territory [the Port District] heretofore served exclusively and adequately by petitioners cannot be supported by public convenience and necessity, could mean only a duplication of rail service, and would create unsound and uneconomic conditions in transportation. As we read the record before the Hearing Examiner the case was tried on the theory that the applications included the proposed operations within the Port District. During the presentation of appellants' evidence objection was made to the introduction of the proposed lease between appellants and the Port District on the ground that it was beyond the scope of the application. The Hearing Examiner overruled the objection. The testimony of virtually all of the appellants' witnesses was directed to some phase of the operations of the Port District. It should also be noted that the appellees sought to rebut this testimony in voluminous detail. For example, 40 pages of the record detail the testimony of Mr. R. C. Davidson, a witness for Rock Island. His testimony is devoted to Rock Island's operation in the United States with specific reference to the Port District. It compares Rock Island's operation in the Port District with that proposed by the appellants and answers in detail the statistics of the appellants as to charges, rates, switching problems, etc., involved in operations within the Port District. Page after page of prepared statistics on the costs, profits, etc., of the proposed operation were included in the testimony, together with forecasts as to the impact of the same, if permitted, on Rock Island's operations. Another witness for Rock Island, Professor Marvin L. Fair, testified for some 15 pages on the potential of the Port District. His research was in great depth and included comparisons with other Great Lakes ports; estimated traffic of the Port District, including iron ore, grain, and general cargo; physical conditions of navigation at the port; the effect of tolls; the capacity of the Welland Canal (in the St. Lawrence Seaway) and its impact on the port; the efficiency of the port facilities; established movement of exports and imports; the effect of political, military, and economic conditions at home and abroad and the adequacy of Rock Island's service. The record establishes beyond a doubt that the appellants were in fact seeking Commission approval of the entire project. Their offering of the unexecuted, proposed contract into evidence is one of many indications of this fact. The Hearing Examiner specifically noted, at the time the contract was received in evidence, that its approval by the Commission was necessary in order for the appellants to serve the Port District as they proposed. It would, indeed, have been a futile act for the appellants to seek and attain approval to extend their lines to the Port District but not be able to enter it! It is true that appellees objected to the introduction of the proposed agreement because they felt, and rightly so, that the application which the appellants had submitted was not technically broad enough for the authority they sought. The Hearing Examiner overruled them and they were obliged to—and did—offer their evidence on the matter. When the question came before the Commission for decision, it ruled that the applications were technically deficient and permitted the parties to correct the same through the filing of supplemental applications. At no time did the Commission find that the proposal to operate within the Port District had not been adequately explored and examined. Rather, a careful reading of the Commission's entire opinion leads us to the opposite conclusion. At every stage of the proceedings before the Hearing Examiner and also before the Commission, operations of the appellants within the Port District were considered an integral part of the overall plan which they submitted. The ruling of the Commission that the supplemental applications should be considered in conjunction with the original application, did not, in our view, deprive appellees of due process of law. When appellees requested a full hearing on the supplemental applications the grounds they alleged were that they were adequately serving the port; that they were prepared to spend further sums of money in the construction of facilities to serve it; that they were entitled to retain the traffic of the Port District; that there was no adequate reason for extension of the railroad lines of appellants into territory heretofore served exclusively by appellees; and that the extension of the railroad lines of appellants was not justified by public convenience and necessity. As the Commission itself found, Examination of the record discloses that these are the same arguments and contentions that were set forth in protestants' original briefs, exceptions to the examiner's proposed report, in their petitions for reconsideration, and in their oral arguments. Illinois Central R. Co. Construction and Trackage, 312 I. C. C. 277, 280. The changes in the proposed lease agreement which the Commission approved without a further hearing involved the removal of the exclusive right to operate within the Port clause, which that document had given the appellants, and the formula for determining the annual rental to be charged by the Port District. As to the former, it can hardly be maintained that this worked a hardship or detriment upon the appellees. The removal of the clause, in fact, made certain that appellees were not precluded from continuing their present operations. As to the rental clause, it will be remembered that the original proposed agreement provided for 5% annual rental based on the value of the land and tracks, but not to exceed $2 per car. This was changed in the first supplemental application to a charge of not to exceed $2 per revenue car or locomotive. The final contract merely provided for a charge of $2 for each revenue car, which was much more favorable to the appellants than either of the former clauses. Moreover, the final charge compared favorably to other per-car rates previously approved by the Commission. In the light of these considerations, as well as the fact that appellees were invited and refused to sit in on the negotiation of the contract; had ample opportunity and did present their evidence as to the reasonableness of the charge for the use of Port District property; were, and are, in nowise bound by the contract; and, finally, in view of the insignificance of the changes in the final agreement compared with the former ones, we are led to conclude that appellees were not entitled to another hearing. Appellees also insist that a new hearing be held so that evidence of present conditions could be presented to the Commission rather than speculation. It is true that this case has been pending for 10 years but this, rather than being a reason for holding additional hearings, operates to the contrary. We have concluded that the orders of the Commission were proper under the circumstances. We have found substantial support for its actions. Accordingly, it is our view that this matter be concluded. The judgment is therefore reversed and the case is remanded to the District Court with directions to sustain the Commission's orders. It is so ordered.",applicable standard on review.
+692,111203,1,3,"Legislation enacted by the Congress in 1950, [5] 1952, [6] and 1965 [7] authorized the Attorney General to withhold deportation of an otherwise deportable alien if the alien would be subject to persecution upon deportation. At least before 1968, it was clear that an alien was required to demonstrate a clear probability of persecution or a likelihood of persecution in order to be eligible for withholding of deportation under § 243(h) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1253(h) (1964 ed.). E. g., Cheng Kai Fu v. INS, 386 F. 2d 750, 753 (CA2 1967), cert. denied, 390 U. S. 1003 (1968); Lena v. INS, 379 F. 2d 536, 538 (CA7 1967); In re Janus and Janek, 12 I. & N. Dec. 866, 873 (BIA 1968); In re Kojoory, 12 I. & N. Dec. 215, 220 (BIA 1967). With certain exceptions, this relief was available to any alien who was already within the United States, albeit unlawfully and subject to deportation. The relief authorized by § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. See generally Leng May Ma v. Barber, 357 U. S. 185 (1958). Since 1947, relief to refugees at our borders has taken the form of an immigration and naturalization policy which granted immigration preferences to `displaced persons,' `refugees,' or persons who fled certain areas of the world because of `persecution or fear of persecution on account of race, religion, or political opinion.' Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant — to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations. Rosenberg v. Yee Chien Woo, 402 U. S. 49, 52 (1971). Most significantly, the Attorney General was authorized under § 203(a)(7) of the Immigration and Nationality Act of 1952, 8 U. S. C. § 1153(a)(7)(A)(i) (1976 ed.), to permit conditional entry as immigrants for a number of refugees fleeing from a Communist-dominated area or the Middle East because of persecution or fear of persecution on account of race, religion, or political opinion. See also § 212(d)(5) of the Act, 8 U. S. C. § 1182(d)(5) (granting Attorney General discretion to parole aliens into the United States temporarily for emergency reasons). An alien seeking admission under § 203(a)(7) was required to establish a good reason to fear persecution. Compare In re Tan, 12 I. & N. Dec. 564, 569-570 (BIA 1967), with In re Ugricic, 14 I. & N. Dec. 384, 385-386 (Dist. Dir. 1972). [8] The United Nations Protocol In 1968 the United States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U. S. T. 6223, T. I. A. S. No. 6577. The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951) [9] with respect to refugees as defined in Article 1.2 of the Protocol. Article 1.2 of the Protocol defines a refugee as an individual who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Compare 19 U. S. T. 6225 with 19 U. S. T. 6261 (1968). Two of the substantive provisions of the Convention are germane to the issue before us. Article 33.1 of the Convention provides: No Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group of political opinion. 19 U. S. T., at 6276. Article 34 provides in pertinent part: The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. . . . Ibid. [10] The President and the Senate believed that the Protocol was largely consistent with existing law. There are many statements to that effect in the legislative history of the accession to the Protocol. E. g., S. Exec. Rep. No. 14, 90th Cong., 2d Sess., 4 (1968) (refugees in the United States have long enjoyed the protection and the rights which the protocol calls for); id., at 6, 7 (the United States already meets the standards of the Protocol); see also, id., at 2; S. Exec. K, 90th Cong., 2d Sess., III, VII (1968); 114 Cong. Rec. 29391 (1968) (remarks of Sen. Mansfield); id., at 27757 (remarks of Sen. Proxmire). And it was absolutely clear that the Protocol would not requir[e] the United States to admit new categories or numbers of aliens. S. Exec. Rep. No. 14, supra, at 19. It was also believed that apparent differences between the Protocol and existing statutory law could be reconciled by the Attorney General in administration and did not require any modification of statutory language. See, e. g., S. Exec. K, supra, at VIII. United States Refugee Law: 1968-1980 Five years after the United States' accession to the Protocol, the Board of Immigration Appeals was confronted with the same basic issue confronting us today in the case of In re Dunar, 14 I. & N. Dec. 310 (1973). The deportee argued that he was entitled to withholding of deportation upon a showing of a well-founded fear of persecution, and essentially maintained that a conjectural possibility of persecution would suffice to make the fear well founded. The Board rejected that interpretation of well founded, and stated that a likelihood of persecution was required for the fear to be well founded. Id., at 319. It observed that neither § 243(h) nor Article 33 used the term well-founded fear, and stated: Article 33 speaks in terms of threat to life or freedom on account of any of the five enumerated reasons. Such threats would also constitute subjection to persecution within the purview of section 243(h). The latter has also been construed to encompass economic sanctions sufficiently harsh to constitute a threat to life or freedom, Dunat v. Hurney, 297 F. 2d 744 (3 Cir., 1962); cf. Kovac v. INS, 407 F. 2d 102 (9 Cir., 1969). In our estimation, there is no substantial difference in coverage of section 243(h) and Article 33. We are satisfied that distinctions in terminology can be reconciled on a case-by-case consideration as they arise. Id., at 320. The Board concluded that Article 33 has effected no substantial changes in the application of section 243(h), either by way of burden of proof, coverage, or manner of arriving at decisions, id., at 323, [11] and stated that Dunar had failed to establish the likelihood that he would be persecuted . . . . Even if we apply the nomenclature of Articles 1 and 33, we are satisfied that respondent has failed to show a well-founded fear that his life or freedom will be threatened, id., at 324. Although before In re Dunar, the Board and the courts had consistently used a clear-probability or likelihood standard under § 243(h), after that case the term well-founded fear was employed in some cases. [12] The Court of Appeals for the Seventh Circuit, which had construed § 243(h) as applying only to cases of clear probability of persecution in a frequently cited case decided before 1968, Lena v. INS, 379 F. 2d 536, 538 (1967), reached the same conclusion in a case decided after the United States' adherence to the Protocol. Kashani v. INS, 547 F. 2d 376 (1977). In that opinion Judge Swygert reasoned that the well founded fear of persecution language could only be satisfied by objective evidence, and that it would in practice converge with the clear probability standard that the Seventh Circuit had previously engrafted onto [§]243(h). Id., at 379. Other Courts of Appeals appeared to reach essentially the same conclusion. See e. g., Fleurinor v. INS, 585 F. 2d 129, 132, 134 (CA5 1978); Pereira-Diaz v. INS, 551 F. 2d 1149, 1154 (CA9 1977); Zamora v. INS, 534 F. 2d 1055, 1058, 1063 (CA2 1976). While the Protocol was the source of some controversy with respect to the standard for § 243(h) claims for withholding of deportation, the United States' accession did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission. The good reason to fear persecution language was employed in such cases. See, e. g., In re Ugricic, 14 I. & N. Dec., at 385-386. [13]",United States Refugee Law prior to 1968
+693,111204,2,2,"In February 1969 Williams was indicted for first-degree murder. Before trial in the Iowa court, his counsel moved to suppress evidence of the body and all related evidence including the condition of the body as shown by the autopsy. The ground for the motion was that such evidence was the fruit or product of Williams' statement made during the automobile ride from Davenport to Des Moines and prompted by Leaming's statements. The motion to suppress was denied. The jury found Williams guilty of first-degree murder; the judgment of conviction was affirmed by the Iowa Supreme Court. State v. Williams, 182 N. W. 2d 396 (1970). Williams then sought release on habeas corpus in the United States District Court for the Southern District of Iowa. That court concluded that the evidence in question had been wrongly admitted at Williams' trial, Williams v. Brewer, 375 F. Supp. 170 (1974); a divided panel of the Court of Appeals for the Eighth Circuit agreed. 509 F. 2d 227 (1974). We granted certiorari, 423 U. S. 1031 (1975), and a divided Court affirmed, holding that Detective Leaming had obtained incriminating statements from Williams by what was viewed as interrogation in violation of his right to counsel. Brewer v. Williams, 430 U. S. 387 (1977). This Court's opinion noted, however, that although Williams' incriminating statements could not be introduced into evidence at a second trial, evidence of the body's location and condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams. Id., at 407, n. 12.",First Trial
+694,111204,2,3,"At Williams' second trial in 1977 in the Iowa court, the prosecution did not offer Williams' statements into evidence, nor did it seek to show that Williams had directed the police to the child's body. However, evidence of the condition of her body as it was found, articles and photographs of her clothing, and the results of post mortem medical and chemical tests on the body were admitted. The trial court concluded that the State had proved by a preponderance of the evidence that, if the search had not been suspended and Williams had not led the police to the victim, her body would have been discovered within a short time in essentially the same condition as it was actually found. The trial court also ruled that if the police had not located the body, the search would clearly have been taken up again where it left off, given the extreme circumstances of this case and the body would [have] been found in short order.  App. 86 (emphasis added). In finding that the body would have been discovered in essentially the same condition as it was actually found, the court noted that freezing temperatures had prevailed and tissue deterioration would have been suspended. Id., at 87. The challenged evidence was admitted and the jury again found Williams guilty of first-degree murder; he was sentenced to life in prison. On appeal, the Supreme Court of Iowa again affirmed. 285 N. W. 2d 248 (1979). That court held that there was in fact a hypothetical independent source exception to the exclusionary rule: After the defendant has shown unlawful conduct on the part of the police, the State has the burden to show by a preponderance of the evidence that (1) the police did not act in bad faith for the purpose of hastening discovery of the evidence in question, and (2) that the evidence in question would have been discovered by lawful means. Id., at 260. As to the first element, the Iowa Supreme Court, having reviewed the relevant cases, stated: The issue of the propriety of the police conduct in this case, as noted earlier in this opinion, has caused the closest possible division of views in every appellate court which has considered the question. In light of the legitimate disagreement among individuals well versed in the law of criminal procedure who were given the opportunity for calm deliberation, it cannot be said that the actions of the police were taken in bad faith. Id., at 260-261. The Iowa court then reviewed the evidence de novo [1] and concluded that the State had shown by a preponderance of the evidence that, even if Williams had not guided police to the child's body, it would inevitably have been found by lawful activity of the search party before its condition had materially changed. In 1980 Williams renewed his attack on the state-court conviction by seeking a writ of habeas corpus in the United States District Court for the Southern District of Iowa. The District Court conducted its own independent review of the evidence and concluded, as had the state courts, that the body would inevitably have been found by the searchers in essentially the same condition it was in when Williams led police to its discovery. The District Court denied Williams' petition. 528 F. Supp. 664 (1981). The Court of Appeals for the Eighth Circuit reversed, 700 F. 2d 1164 (1983); an equally divided court denied rehearing en banc. Id., at 1175. That court assumed, without deciding, that there is an inevitable discovery exception to the exclusionary rule and that the Iowa Supreme Court correctly stated that exception to require proof that the police did not act in bad faith and that the evidence would have been discovered absent any constitutional violation. In reversing the District Court's denial of habeas relief, the Court of Appeals stated: We hold that the State has not met the first requirement. It is therefore unnecessary to decide whether the state courts' finding that the body would have been discovered anyway is fairly supported by the record. It is also unnecessary to decide whether the State must prove the two elements of the exception by clear and convincing evidence, as defendant argues, or by a preponderance of the evidence, as the state courts held. The state trial court, in denying the motion to suppress, made no finding one way or the other on the question of bad faith. Its opinion does not even mention the issue and seems to proceed on the assumption — contrary to the rule of law later laid down by the Supreme Court of Iowa — that the State needed to show only that the body would have been discovered in any event. The Iowa Supreme Court did expressly address the issue . . . and a finding by an appellate court of a state is entitled to the same presumption of correctness that attaches to trial-court findings under 28 U. S. C. § 2254(d). . . . We conclude, however, that the state Supreme Court's finding that the police did not act in bad faith is not entitled to the shield of § 2254(d) . . . . Id., at 1169-1170 (footnotes omitted). We granted the State's petition for certiorari, 461 U. S. 956 (1983), and we reverse.",Second Trial
+695,109401,1,2,"There can be no question that uncertainty inheres in the definition of obscenity. It is therefore to be expected that those who market written material pertaining to sex should, from fear of criminal prosecution, refrain from handling what may be constitutionally protected literature on that subject. It is this hazard to material protected by the First Amendment which commends Alabama's efforts to minimize that hazard by its regulatory scheme. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature. But by shifting the determination of obscenity vel non to the civil context, the Alabama scheme creates another potential danger that the dissemination of constitutionally protected material will be suppressed. Although the Act does not specify which party has the burden of proof in the civil proceeding, the Supreme Court of Alabama has held that the burden is on the State to prove the obscenity of the magazines, 292 Ala. 484, 487, 296 So. 2d 228, 231 (1974), and it appears that the State may do so by a mere preponderance of the evidence. Tr. of Oral Arg. 4-5. However, I think that the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in such a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt. Inherent in all factfinding procedures is the potential for erroneous judgments and, when First Amendment values are implicated, the selection of a standard of proof of necessity implicates the relative constitutional acceptability of erroneous judgments. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value . . . this margin of error is reduced as to him by the process of placing on the other party the burden . . . of persuading the factfinder at the conclusion of the trial of [the existence of the fact] beyond a reasonable doubt. Speiser v. Randall, 357 U. S. 513, 525-526 (1958). See, e. g., In re Winship, 397 U. S. 358, 369-372 (1970) (Harlan, J., concurring); cf. Rosenbloom v. Metromedia, 403 U. S. 29, 49-51 (1971) (opinion of BRENNAN, J.). In the civil adjudication of obscenity vel non, the bookseller has at stake such an interest of transcending value—protection of his right to disseminate and the public's right to receive material protected by the First Amendment. Protection of those rights demands that the factfinder be almost certain—convinced beyond a reasonable doubt—that the materials are not constitutionally immune from suppression. Although Miller v. California, 413 U. S. 15 (1973), held that the concept of obscenity as defined in that case is not unconstitutionally vague, we have expressly recognized the complexity of the test of obscenity. . . and the vital necessity in its application of safeguards to prevent denial of `the protection of freedom of speech and press'  for nonobscene material. Marcus v. Search Warrant, 367 U. S. 717, 730 (1961). [T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963). The uncertainty of that line means that erroneous judgments as to whether material is obscene or not are likely in any event, and are particularly so if the factfinder is only marginally confident that the material falls on the unprotected side of the line. In light of the command of the First Amendment, a standard of proof by a mere preponderance of the evidence poses too substantial a danger that protected material will be erroneously suppressed. Moreover, the potential danger of such erroneous determinations is especially acute in light of the fact that the civil proceeding and the interim restraint pending adjudication on the merits operate as a prior restraint; indeed, the possibility of an erroneous determination is heightened by the fact that the material may never be available to the public and thus need never have truly faced the acid test of acceptance under prevailing community standards. [4] Furthermore, in light of the definition of obscenity—incorporating, as it does under current law, the notion of patent offensiveness to the average member of the community—there is an even greater need for the judge operating as sole factfinder to be convinced beyond a reasonable doubt that the material is obscene, for his determination is made without a jury's assessment of community values. Moreover, the possible erroneous imposition of civil sanctions under the preponderance-of-the-evidence standard simply creates too great a risk of self-censorship by those engaged in dissemination of printed material pertaining to sex. Cf. Smith v. California, 361 U. S. 147 (1959). Just as the improper allocation of the burden of proof will create the danger that the legitimate utterance will be penalized and may thus cause persons to steer far wider of the unlawful zone, Speiser v. Randall, supra, at 526, the application of a preponderance-of-the-evidence standard rather than proof beyond a reasonable doubt could cause affected persons to be overly careful about the material in which they deal. While the threat of prosecution and punishment in a criminal proceeding may be greater than the threat of economic loss in civil proceedings, the difference is one of degree. Cf. New York Times Co. v. Sullivan, 376 U. S. 254, 277-278 (1964). The inevitable tendency of the preponderance-of-the-evidence standard—by forcing persons dealing in marginal material to make hard judgments as to whether such material is obscene in order to avoid civil sanctions—would be to limit the volume of at least the marginal material a bookseller could permissibly handle, and thus restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. Smith v. California, supra, at 154. This self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Ibid. Related to these arguments is another consideration which has particular force in the context where a State purports to make a civil determination of obscenity conclusively binding in a subsequent criminal trial, such as is the case under Alabama's Law on Obscenity. The First Amendment proscribes criminalizing the sale of literature in general. However, criminal statutes prohibiting the sale of obscene literature have been held to be constitutionally permissible. At least two elements must coalesce to constitute such a crime: (1) some overt act or intent to perform some act beyond mere possession concerning (2) obscene material. Each of these two elements would otherwise have to be proved beyond a reasonable doubt in a criminal proceeding, for it is settled that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U. S., at 364. The requirement that obscenity be proved beyond a reasonable doubt may not be diluted by transporting the determination to a prior civil proceeding, for the essence of the crime in reality remains the sale of obscene literature rather than disobedience of a court injunction. The dangers emanating from the increased likelihood of error resulting from a preponderance-of-the-evidence standard—the likelihood of self-censorship and the erroneous proscription of constitutionally protected material— are no less great in civil than in a criminal regulation; if anything, the actual margin of error even under the beyond-a-reasonable-doubt standard may be greater in civil proceedings since judges and juries may be more reluctant to declare material obscene in a criminal proceeding where incarceration will follow as a consequence. Both proceedings thus present the same hazards to First Amendment freedoms, and those hazards may only be reduced to a tolerable level by applying the same rigorous burden of proof.",Burden of proof
+696,109401,1,3,"This Court has held that a jury trial is not a constitutional requirement in a state civil proceeding determining the obscenity vel non of written materials. Alexander v. Virginia, 413 U. S. 836 (1973). However, in light of the Court's definition of those materials which are beyond the pale of constitutional protection, a jury trial even in civil proceedings serves a salutary function. The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person's application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i. e., that reasonable men may differ whether the material is obscene. Kingsley Books, Inc. v. Brown, 354 U. S. 436, 448 (1957) (BRENNAN, J., dissenting). Although the Court has rejected the contention that the Federal Constitution imposes the requirement of such a jury trial on a State conducting a civil proceeding, it is nevertheless clear that a jury is the most appropriate factfinder on the issue of obscenity, assuming the judge, as he must, has initially determined that the material is not protected as a matter of law. See, e. g., Miller v. California, 413 U. S., at 25-26. Trial by jury is particularly appropriate if the State chooses to enact a statute such as Alabama's which makes the civil determination of obscenity conclusive in a later criminal proceeding involving the parties to the civil action, and States are of course free to adopt such a factfinding procedure as the fairest and most accurate reflection of community standards.",Jury Trial
+697,109401,1,4,"Accepting as I must for present purposes the Court's current view of the constitutional permissibility of laws forbidding the dissemination of obscene materials, I do not perceive any constitutional defect in a State's criminalizing the knowing sale of material judicially determined to be obscene, provided, of course, that obscenity was determined beyond a reasonable doubt at a proceeding in which the accused was a party and of which he received adequate notice. [5] However, one problem with such a scheme deserves comment. Under prevailing constitutional doctrine, material cannot be proscribed unless, inter alia,  `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . [and] describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. Miller v. California, supra, at 24 (emphasis supplied). Community standards are inherently in a state of flux, and there is a substantial danger that a civil proceeding declaring given printed matter obscene will forever preclude its introduction into the community, even if the community would no longer view it as patently offensive or appealing to the prurient interest. Some of the most celebrated works of our generation would likely have been the pornography of a prior generation. Thus, I would require that, at a minimum, a person charged with dissemination of material knowing it to have been judicially determined to be obscene in a civil proceeding to which he was a party should be permitted to interject into the criminal trial a claim that community standards had evolved from the time of the civil proceeding to the time the acts for which he was charged were committed. If there is some colorable showing of such a change, I believe that the First Amendment and due process would require that the State again demonstrate beyond a reasonable doubt, in the criminal proceeding, that the material was contemporaneously constitutionally obscene. Cf. Mullaney v. Wilbur, 421 U. S. 684 (1975). [6]",Effect of the Obscenity Determination in Civil Proceedings on the Criminal Proceeding
+698,109401,1,5,"Another potential effect of civil determinations under the Alabama law will be to deter all the acts proscribed by the statute with respect to the material declared obscene. This is precisely what the statute is meant to do, and generally the Constitution does not assure that acts may be performed with safety in connection with material judicially declared obscene. This is not true, however, with respect to the mere possession of obscene material. The Act has two provisions that affect possession of obscene material. One provision renders possession of mailable matter known . . . to have been judicially found to be obscene under this chapter a misdemeanor subject to a possible fine of $500 and up to six months' imprisonment, or both. § 4 (2). This provision is invalid because the First Amendment prohibits States from regulating possession unrelated to distribution or public exhibition. Stanley v. Georgia, 394 U. S. 557 (1969). The other provision affecting possession of obscene material, § 15, provides that the possession of any three of the things enumerated in . . . [§ 4] (except the possession of them for the purpose of return to the person from whom received) creates a rebuttable presumption that they are intended for dissemination, and the burden of proof that their possession is for the purpose of return is on the possessor. At the least this presumption shifts to defendants the burden of going forward with the evidence on the issue of possession for the purpose of distribution; and if the possessor seeks to explain possession on the ground that he is holding the materials for return, he has the burden of proof on the issue. Mere possession of obscene material for personal use may not be penalized. The obvious danger in creating a presumption that possession is for the purpose of dissemination is that lawful possession will be penalized or that persons will refrain from lawfully possessing arguably protected material. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. Speiser v. Randall, 357 U. S. 513, 526 (1958). The Alabama law poses a particular hazard in this regard, because the presumption takes effect once the defendant is shown to have possessed any three of the things enumerated in § 4. The things enumerated in § 4 are nonmailable obscene matter and mailable matter judicially declared obscene under the Act. Apparently, the presumption would come into play if a person possessed one copy of three different works which fit the statute's description. This would in effect limit persons to the unregulated possession of a maximum of two things in their libraries. But even if the presumption were to apply only upon proof of possession of three copies of the same item, it might result in punishment and deterrence of lawful activity, since the right to possess obscene material for personal use is not limited to one or two copies of each item. Juries are not so ingenuous that they will fail to draw reasonable inferences from the possession of multiple copies of obscene works. There is no necessity to add to the weight of such evidence presumptions and shifts in the burden of proof which jeopardize the exercise of free speech. I concur insofar as the conviction of petitioner is reversed. MR. JUSTICE MARSHALL joins this opinion. MR. JUSTICE STEWART joins all but Part III of this opinion.",The Possession Provisions
+699,109005,2,1,"Title I of the Act contains the general record-keeping requirements for banks and other financial institutions, as provided by the Secretary by regulation. Section 101 of the Act, 12 U. S. C. § 1829b, applies by its terms only to federally insured banks. It contains congressional findings that adequate records maintained by insured banks have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings. The major requirements of the section are that insured banks record the identities of persons having accounts with them and of persons having signature authority thereover, in such form as the Secretary may require. To the extent that the Secretary determines by regulation that such records would have the requisite high degree of usefulness, the banks must make and maintain microfilm or other reproductions of each check, draft, or other instrument drawn on it and presented to it for payment, and must maintain a record of each check, draft, or other instrument received by it for deposit or collection, together with an identification of the party for whose account it is to be deposited or collected. Section 101 further authorizes the Secretary to require insured banks to maintain a record of the identity of all individuals who engage in transactions which are reportable by the bank under Title II of the Act, and authorizes the Secretary to prescribe the required retention period for such records. Section 102, 12 U. S. C. § 1730d, amends the National Housing Act to authorize the Secretary to apply similar recordkeeping requirements to institutions insured thereunder. Sections 122-123 of the Act, 12 U. S. C. §§ 1952-1953, authorize the Secretary to issue regulations applying similar recordkeeping requirements to additional domestic financial institutions. [3] Although an initial draft of Title I, see H. R. 15073, 91st Cong., 1st Sess., would have compelled the Secretary to promulgate regulations requiring banks to maintain copies of all items received for collection or presented for payment, the Act as finally passed required the maintenance only of such records and microfilm copies as the Secretary determined to have a high degree of usefulness. [4] Upon passage of the Act, the Treasury Department established a task force which consulted with representatives from financial institutions, trade associations, and governmental agencies to determine the type of records which should be maintained. Whereas the original regulations promulgated by the Secretary had required the copying of all checks, the task force decided, and the regulations were accordingly amended, to require check copying only as to checks in excess of $100. [5] The regulations also require the copying of only on us checks: checks drawn on the bank or issued and payable by it. 31 CFR § 103.34 (b) (3). The regulations exempt from the copying requirements certain on us checks such as dividend, payroll, and employee benefit checks, provided they are drawn on an account expected to average at least one hundred checks per month. [6] The regulations also require banks to maintain records of the identity and taxpayer identification number of each person maintaining a financial interest in each deposit or share account opened after June 30, 1972, and to microfilm various other financial documents. 31 CFR § 103.34. [7] In addition, the Secretary's regulations require all financial institutions to maintain a microfilm or other copy of each extension of credit in an amount exceeding $5,000 except those secured by interest in real property, and to microfilm each advice, request, or instruction given or received regarding the transfer of funds, currency, or other money or credit in amounts exceeding $10,000 to a person, account, or place outside the United States. 31 CFR § 103.33. Reiterating the stated intent of the Congress, see, e. g., H. R. Rep. No. 91-975, supra, at 10; S. Rep. No. 91-1139, supra, at 5, the regulations provide that inspection, review, or access to the records required by the Act to be maintained is governed by existing legal process. 31 CFR § 103.51. [8] Finally, §§ 125-127 of the Act provide for civil and criminal penalties for willful violations of the recordkeeping requirements. 12 U. S. C. §§ 1955-1957.",title ithe recordkeeping requirements
+700,109005,2,2,"Chapter 3 of Title II of the Act and the regulations promulgated thereunder generally require persons to report the transportation of monetary instruments into or out of the United States, or receipts of such instruments in the United States from places outside the United States, if the transportation or receipt involves instruments of a value greater than $5,000. Chapter 4 of Title II of the Act and the implementing regulations generally require United States citizens, residents, and businessmen to file reports of their relationships with foreign financial institutions. The legislative history of the foreign-transaction reporting provisions indicates that the Congress was concerned with the circumvention of United States regulatory, tax, and criminal laws which United States citizens and residents were accomplishing through the medium of secret foreign bank transactions. S. Rep. No. 91-1139, supra, at 7; H. R. Rep. No. 91-975, supra, at 13. Section 231 of the Act, 31 U. S. C. § 1101, requires anyone connected with the transaction to report, in the manner prescribed by the Secretary, the transportation into or out of the country of monetary instruments [9] exceeding $5,000 on any one occasion. As provided by the Secretary's regulations, the report must include information as to the amount of the instrument, the date of receipt, the form of instrument, and the person from whom it was received. See 31 CFR §§ 103.23, 103.25. [10] The regulations exempt various classes of persons from this reporting requirement, including banks, brokers or other dealers in securities, common carriers, and others engaged in the business of transporting currency for banks. 31 CFR § 103.23 (c). Monetary instruments which are transported without the filing of a required report, or with a materially erroneous report, are subject to forfeiture under § 232 of the Act, 31 U. S. C. § 1102; a person who has failed to file the required report or who has filed a false report is subject to civil penalties under §§ 207 and 233, 31 U. S. C. §§ 1056 and 1103, as well as criminal penalties under §§ 209 and 210, 31 U. S. C. §§ 1058 and 1059. Section 241 of the Act, 31 U. S. C. § 1121, authorizes the Secretary to prescribe regulations requiring residents and citizens of the United States, as well as nonresidents in the United States and doing business therein, to maintain records and file reports with respect to their transactions and relationships with foreign financial agencies. Pursuant to this authority, the regulations require each person subject to the jurisdiction of the United States to make a report on yearly tax returns of any financial interest in, or signature or other authority over, a bank, securities or other financial account in a foreign country. 31 CFR § 103.24. Violations of the reporting requirement of § 241 as implemented by the regulations are also subject to civil and criminal penalties under §§ 207, 209, and 210 of the Act, 31 U. S. C. §§ 1056, 1058, and 1059.",title iiforeign financial transaction reporting requirements
+701,109005,2,3,"In addition to the foreign transaction reporting requirements discussed above, Title II of the Act provides for certain reports of domestic transactions where such reports have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings. Prior to the enactment of the Act, financial institutions had been providing reports of their customers' large currency transactions pursuant to regulations promulgated by the Secretary of Treasury [11] which had required reports of all currency transactions that, in the judgment of the institution, exceeded those commensurate with the customary conduct of the business, industry or profession of the person or organization concerned. [12] In passing the Act, Congress recognized that the use of financial institutions, both domestic and foreign, in furtherance of activities designed to evade the regulatory mechanisms of the United States, had markedly increased. H. R. Rep. No. 91-975, supra, at 10; S. Rep. No. 91-1139, supra, at 2-3. Congress recognized the importance of reports of large and unusual currency transactions in ferreting out criminal activity and desired to strengthen the statutory basis for requiring such reports. H. R. Rep. No. 91-975, supra, at 11-12. In particular, Congress intended to authorize more definite standards for determining what constitutes the type of unusual transaction that should be reported. S. Rep. No. 91-1139, supra, at 6. Section 221 of the Act, 31 U. S. C. § 1081, therefore delegates to the Secretary the authority for specifying the currency transactions which should be reported, if they involve the payment, receipt, or transfer of United States currency, or such other monetary instruments as the Secretary may specify. Section 222 of the Act, 31 U. S. C. § 1082, provides that the Secretary may require such reports from the domestic financial institution involved or the parties to the transactions or both. [13] Section 223 of the Act, 31 U. S. C. § 1083, authorizes the Secretary to designate financial institutions to receive such reports. In the implementing regulations promulgated under this authority, the Secretary has required only that financial institutions file certain reports with the Commissioner of Internal Revenue. The regulations require that a report be made for each deposit, withdrawal, exchange of currency, [14] or other payment or transfer which involves a transaction in currency of more than $10,000. 31 CFR § 103.22. [15] The regulations exempt from the reporting requirement certain intrabank transactions and transactions with an established customer maintaining a deposit relationship [in amounts] commensurate with the customary conduct of the business, industry, or profession of the customer concerned. Ibid. [16] Provision is also made in the regulations whereby information obtained by the Secretary may in some instances and in confidence be available to other departments or agencies of the United States. 31 CFR § 103.43; see 31 U. S. C. § 1061. [17] There is also provision made in the regulations whereby the Secretary may in his sole discretion make exceptions to or grant exemptions from the requirements of the regulation. 31 CFR § 103.45 (a). [18] Failure to file the required report or the filing of a false report subjects the banks to criminal and civil penalties. 31 U. S. C. §§ 1056, 1058, 1059.",title iidomestic financial transaction reporting requirements
+702,109005,2,1,"The District Court, in differentiating for constitutional purposes between the foreign reporting requirements and the domestic reporting requirements imposed by the Secretary, relied upon our opinion in United States v. U. S. District Court, 407 U. S. 297 (1972), for the proposition that Government surveillance in the area of foreign relations is in some instances subject to less constitutional restraint than would be similar activity in domestic affairs. Our analysis does not take us over this ground. The plenary authority of Congress to regulate foreign commerce, and to delegate significant portions of this power to the Executive, is well established. C. & S. Air Lines v. Waterman Corp., 333 U. S. 103, 109 (1948); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 (1933). Plaintiffs contend that in exercising that authority to require reporting of previously described foreign financial transactions, Congress and the Secretary have abridged their Fourth Amendment rights. The familiar language of the Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . . Since a statute requiring the filing and subsequent publication of a corporate tax return has been upheld against a Fourth Amendment challenge, Flint v. Stone Tracy Co., 220 U. S. 107, 174-176 (1911), reporting requirements are by no means per se violations of the Fourth Amendment. Indeed, a contrary holding might well fly in the face of the settled sixty-year history of self-assessment of individual and corporate income taxes in the United States. This Court has on numerous occasions recognized the importance of the self-regulatory aspects of that system, and interests of the Congress in enforcing it: In assessing income taxes the Government relies primarily upon the disclosure by the taxpayer of the relevant facts. This disclosure it requires him to make in his annual return. To ensure full and honest disclosure, to discourage fraudulent attempts to evade the tax, Congress imposes sanctions. Such sanctions may confessedly be either criminal or civil. Helvering v. Mitchell, 303 U. S. 391, 399 (1938). To the extent that the reporting requirements of the Act and the settled practices of the tax collection process are similar, this history must be overcome by those who argue that the reporting requirements are a violation of the Fourth Amendment. Plaintiffs contend, however, that Boyd v. United States, 116 U. S. 616 (1886), establishes the invalidity of the foreign reporting requirement under the Fourth Amendment, and that the particular requirements imposed are so indiscriminate in their nature that the regulations must be deemed to be the equivalent of a general warrant of the kind condemned as obnoxious to the Fourth Amendment in cases such as Stanford v. Texas, 379 U. S. 476 (1965). We do not think these cases would support plaintiffs even if their contentions were directed at the domestic reporting requirements; in light of the fact that the foreign reporting requirements deal with matters in foreign commerce, we think plaintiffs' reliance on the cases to challenge those requirements must fail. Boyd v. United States, supra , is a case which has been the subject of repeated citation, discussion, and explanation since the time of its decision 88 years ago. In Communist Party v. SACB, 367 U. S. 1 (1961), the Court described the Boyd holding as follows: The Boyd case involved a statute providing that in proceedings other than criminal arising under the revenue laws, the Government could secure an order of the court requiring the production by an opposing claimant or defendant of any documents under his control which, the Government asserted, might tend to prove any of the Government's allegations. If production were not made, the allegations were to be taken as confessed. On the Government's motion, the District Court had entered such an order, requiring the claimants in a forfeiture proceeding to produce a specified invoice. Although the claimants objected that the order was improper and the statute unconstitutional in coercing self-incriminatory disclosures and permitting unreasonable searches and seizures, they did, under protest, produce the invoice, which was, again over their constitutional objection, admitted into evidence. This Court held that on such a record a judgment for the United States could not stand, and that the statute was invalid as repugnant to the Fourth and Fifth Amendments. Id., at 110. But the Boyd Court recognized that the Fourth Amendment does not prohibit all requirements that information be made available to the Government: [T]he supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. 116 U. S., at 623-624. Stanford v. Texas, supra , involved a warrant issued by a state judge which described petitioner's home and authorized the search and seizure of books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas. This Court found the warrant to be an unconstitutional general warrant, and invalidated the search and seizure conducted pursuant to it. Unlike the situation in Stanford, the Secretary's regulations do not authorize indiscriminate rummaging among the records of the plaintiffs, nor do the reports they require deal with literary material as in Stanford; the information sought is about commerce, not literature. The reports of foreign financial transactions required by the regulations must contain information as to a relatively limited group of financial transactions in foreign commerce, and are reasonably related to the statutory purpose of assisting in the enforcement of the laws of the United States. Of primary importance, in addition, is the fact that the information required by the foreign reporting requirements pertains only to commercial transactions which take place across national boundaries. Mr. Chief Justice Taft, in his opinion for the Court in Carroll v. United States, 267 U. S. 132 (1925), observed: Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. Id., at 154. This settled proposition has been reaffirmed as recently as last Term in Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973). If reporting of income may be required as an aid to enforcement of the federal revenue statutes, and if those entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment, we see no reason to invalidate the Secretary's regulations here. The statutory authorization for the regulations was based upon a conclusion by Congress that international currency transactions and foreign financial institutions were being used by residents of the United States to circumvent the enforcement of the laws of the United States. The regulations are sufficiently tailored so as to single out transactions found to have the greatest potential for such circumvention and which involve substantial amounts of money. They are therefore reasonable in the light of that statutory purpose, and consistent with the Fourth Amendment.",fourth amendment challenge to the foreign reporting requirements
+703,109005,2,2,"The District Court examined the domestic reporting requirements imposed on plaintiffs by looking to the broad authorization of the Act itself, without specific reference to the regulations promulgated under its authority. The District Court observed: [A]lthough to date the Secretary has required reporting only by the financial institutions and then only of currency transactions over $10,000, he is empowered by the Act, as indicated above, to require, if he so decides, reporting not only by the financial institution, but also by other parties to or participants in transactions with the institutions and, further, that the Secretary may require reports, not only of currency transactions but of any transaction involving any monetary instrument—and in any amount—large or small. 347 F. Supp., at 1246. The District Court went on to pose, as the question to be resolved, whether these provisions, broadly authorizing an executive agency of government to require financial institutions and parties [thereto] . . . to routinely report . . . the detail of almost every conceivable financial transaction . . . [are] such an invasion of a citizen's right of privacy as amounts to an unreasonable search within the meaning of the Fourth Amendment. Ibid. Since, as we have observed earlier in this opinion, the statute is not self-executing, and were the Secretary to take no action whatever under his authority there would be no possibility of criminal or civil sanctions being imposed on anyone, the District Court was wrong in framing the question in this manner. The question is not what sort of reporting requirements might have been imposed by the Secretary under the broad authority given him in the Act, but rather what sort of reporting requirements he did in fact impose under that authority. Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. `Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.' Watson v. Buck, 313 U. S. 387, 402. Communist Party v. SACB, 367 U. S., at 71. The question for decision, therefore, is whether the regulations relating to the reporting of domestic transactions, violations of which could subject those required to report to civil or criminal penalties, invade any Fourth Amendment right of those required to report. To that question we now turn. The regulations issued by the Secretary require the reporting of domestic financial transactions only by financial institutions. United States v. Morton Salt Co., 338 U. S. 632 (1950), held that organizations engaged in commerce could be required by the Government to file reports dealing with particular phases of their activities. The language used by the Court in that case is instructive: It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186. Although the `right to be let alone—the most comprehensive of rights and the right most valued by civilized men,' Brandeis, J., dissenting in Olmstead v. United States, 277 U. S. 438, 471, at 478, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U. S. 616, Hale v. Henkel, 201 U. S. 43, 70, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra ; United States v. White, 322 U. S. 694. While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm'n v. American Tobacco Co., 264 U. S. 298, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra . They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. [Citations omitted.] Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest. 338 U. S., at 651-652. We have no difficulty then in determining that the Secretary's requirements for the reporting of domestic financial transactions abridge no Fourth Amendment right of the banks themselves. The bank is not a mere stranger or bystander with respect to the transactions which it is required to record or report. The bank is itself a party to each of these transactions, earns portions of its income from conducting such transactions, and in the past may have kept records of similar transactions on a voluntary basis for its own purposes. See United States v. Biswell, 406 U. S., at 316. The regulations presently in effect governing the reporting of domestic currency transactions require information as to the personal and business identity of the person conducting the transaction and of the person or organization for whom it was conducted, as well as a summary description of the nature of the transaction. It is conceivable, and perhaps likely, that the bank might not of its own volition compile this amount of detail for its own purposes, and therefore to that extent the regulations put the bank in the position of seeking information from the customer in order to eventually report it to the Government. But as we have noted above, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. United States v. Morton Salt Co., supra, at 652. The regulations do not impose unreasonable reporting requirements on the banks. The regulations require the reporting of information with respect to abnormally large transactions in currency, much of which information the bank as a party to the transaction already possesses or would acquire in its own interest. To the extent that the regulations in connection with such transactions require the bank to obtain information from a customer simply because the Government wants it, the information is sufficiently described and limited in nature, and sufficiently related to a tenable congressional determination as to improper use of transactions of that type in interstate commerce, so as to withstand the Fourth Amendment challenge made by the bank plaintiffs. [T]he inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. `The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.'  United States v. Morton Salt Co., supra, at 652-653; see Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 208 (1946). In addition to the Fourth Amendment challenge to the domestic reporting requirements made by the bank plaintiffs, we are faced with a similar challenge by the depositor plaintiffs, who contend that since the reports of domestic transactions which the bank is required to make will include transactions to which the depositors were parties, the requirement that the bank make a report of the transaction violates the Fourth Amendment rights of the depositor. The complaint filed in the District Court by the ACLU and the depositors contains no allegation by any of the individual depositors that they were engaged in the type of $10,000 domestic currency transaction which would necessitate that their bank report it to the Government. This is not a situation where there might have been a mere oversight in the specificity of the pleadings and where this Court could properly infer that participation in such a transaction was necessarily inferred from the fact that the individual plaintiffs allege that they are in fact depositors. Such an inference can be made, for example, as to the recordkeeping provisions of Title I, which require the banks to keep various records of certain transactions by check; as our discussion of the challenges by the individual depositors to the recordkeeping provisions, supra, implicitly recognizes, the allegation that one is a depositor is sufficient to permit consideration of the challenges to the recordkeeping provisions, since any depositor would to some degree be affected by them. Here, however, we simply cannot assume that the mere fact that one is a depositor in a bank means that he has engaged or will engage in a transaction involving more than $10,000 in currency, which is the only type of domestic transaction which the Secretary's regulations require that the banks report. That being so, the depositor plaintiffs lack standing to challenge the domestic reporting regulations, since they do not show that their transactions are required to be reported. [28] Plaintiffs in the federal courts `must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.' Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973). There must be a `personal stake in the outcome' such as to `assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U. S. 186, 204 (1962). . . . Abstract injury is not enough. It must be alleged that the plaintiff `has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). The injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.' Golden v. Zwickler, 394 U. S. 103, 109-110 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); United Public Workers v. Mitchell, 330 U. S. 75, 89-91 (1947). O'Shea v. Littleton, 414 U. S. 488, 493-494 (1974) (footnote omitted). We therefore hold that the Fourth Amendment claims of the depositor plaintiffs may not be considered on the record before us. Nor do we think that the California Bankers Association or the Security National Bank can vicariously assert such Fourth Amendment claims on behalf of bank customers in general. The regulations promulgated by the Secretary require that a report concerning a domestic currency transaction involving more than $10,000 be filed only by the financial institution which is a party to the transaction; the regulations do not require a report from the customer. 31 CFR § 103.22; see 31 U. S. C. § 1082. Both the bank and depositor plaintiffs here argue that the regulations are constitutionally defective because they do not require the financial institution to notify the customer that a report will be filed concerning the domestic currency transaction. Since we have held that the depositor plaintiffs have not made a sufficient showing of injury to make a constitutional challenge to the domestic reporting requirements, we do not address ourselves to the necessity of notice to those bank customers whose transactions must be reported. The fact that the regulations do not require the banks to notify the customer of the report violates no constitutional right of the banks, and the banks in any event are left free to adopt whatever customer notification procedures they desire. [29]",fourth amendment challenge to the domestic reporting requirements
+704,109005,2,3,"The District Court rejected the depositor plaintiffs' claim that the foreign reporting requirements violated the depositors' Fifth Amendment privilege against compulsory self-incrimination, and found it unnecessary to consider the similarly based challenge to the domestic reporting requirements since the latter were found to be in violation of the Fourth Amendment. The appeal of the depositor plaintiffs in No. 72-1196 challenges the foreign reporting requirements under the Fifth Amendment, and their brief likewise challenges the domestic reporting requirements as violative of that Amendment. Since they are free to urge in this Court reasons for affirming the judgment of the District Court which may not have been relied upon by the District Court, we consider here the Fifth Amendment objections to both the foreign and the domestic reporting requirements. As we noted above, the bank plaintiffs, being corporations, have no constitutional privilege against compulsory self-incrimination by virtue of the Fifth Amendment. Hale v. Henkel, 201 U. S. 43 (1906). Their brief urges that they may vicariously assert Fifth Amendment claims on behalf of their depositors. But since we hold infra that those depositor plaintiffs who are actually parties in this litigation are premature in asserting any Fifth Amendment claims, we do not believe that the banks under these circumstances have standing to assert Fifth Amendment claims on behalf of customers in general. The individual depositor plaintiffs below made various allegations in the complaint and affidavits filed in the District Court. Plaintiff Stark alleged that he was, in addition to being president of plaintiff Security National Bank, a customer of and depositor in the bank. Plaintiff Marson alleged that he was a customer of and depositor in the Bank of America. Plaintiff Lieberman alleged that he had repeatedly in the recent past transported or shipped one or more monetary instruments exceeding $5,000 in value from the United States to places outside the United States, and expected to do likewise in the near future. Plaintiffs Lieberman, Harwood, Bruer, and Durell each alleged that they maintained a financial interest in and signature authority over one or more bank accounts in foreign countries. This, so far as we can ascertain from the record, is the sum and substance of the depositors' allegations of fact upon which they seek to mount an attack on the reporting requirements of regulations as violative of the privilege against compulsory self-incrimination granted to each of them by the Fifth Amendment. Considering first the challenge of the depositor plaintiffs to the foreign reporting requirements, we hold that such claims are premature. In United States v. Sullivan, 274 U. S. 259 (1927), this Court reviewed a judgment of the Court of Appeals for the Fourth Circuit, 15 F. 2d 809 (1926), which had held that the Fifth Amendment protected the respondent from being punished for failure to file an income tax return. This Court reversed the decision below, stating: As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U. S. 165. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law. 274 U. S., at 263-264. Here the depositor plaintiffs allege that they intend to engage in foreign currency transactions or dealings with foreign banks which the Secretary's regulations will require them to report, but they make no additional allegation that any of the information required by the Secretary will tend to incriminate them. It will be time enough for us to determine what, if any, relief from the reporting requirement they may obtain in a judicial proceeding when they have properly and specifically raised a claim of privilege with respect to particular items of information required by the Secretary, and the Secretary has overruled their claim of privilege. The posture of plaintiffs' Fifth Amendment rights here is strikingly similar to those asserted in Communist Party v. SACB, 367 U. S., at 105-110. The Communist Party there sought to assert the Fifth Amendment claims of its officers as a defense to the registration requirement of the Subversive Activities Control Act, although the officers were not at that stage of the proceeding required by the Act to register, and had neither registered nor refused to register on the ground that registration might incriminate them. The Court said: If a claim of privilege is made, it may or may not be honored by the Attorney General. We cannot, on the basis of supposition that privilege will be claimed and not honored, proceed now to adjudicate the constitutionality under the Fifth Amendment of the registration provisions. Whatever proceeding may be taken after and if the privilege is claimed will provide an adequate forum for litigation of that issue. Id., at 107. Plaintiffs argue that cases such as Albertson v. SACB, 382 U. S. 70 (1965), have relaxed the requirements of earlier cases, but we do not find that contention supported by the language or holding of that case. There the Attorney General had petitioned for and obtained an order from the Subversive Activities Control Board compelling certain named members of the Communist Party to register their affiliation. In response to the Attorney General's petitions, both before the Board and in subsequent judicial proceedings, the Communist Party members had asserted the privilege against self-incrimination, and their claims had been rejected by the Attorney General. A previous decision of this Court had held that an affirmative answer to the inquiry as to membership in the Communist Party was an incriminating admission protected under the Fifth Amendment. Blau v. United States, 340 U. S. 159 (1950). The differences then between the posture of the depositor plaintiffs in this case and that of petitioner in Albertson v. SACB, supra , are evident. We similarly think that the depositor plaintiffs' challenges to the domestic reporting requirements are premature. As we noted above, it is not apparent from the allegations of the complaints in these actions that any of the depositor plaintiffs would be engaged in $10,000 domestic transactions with the bank which the latter would be required to report under the Secretary's regulations pertaining to such domestic transactions. Not only is there no allegation that any depositor engaged in such transactions, but there is no allegation in the complaint that any report which such a bank was required to make would contain information incriminating any depositor. To what extent, if any, depositors may claim a privilege arising from the Fifth Amendment by reason of the obligation of the bank to report such a transaction may be left for resolution when the claim of privilege is properly asserted. Depositor plaintiffs rely on Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968), as supporting the merits of their Fifth Amendment claim. In each of those cases, however, a claim of privilege was asserted as a defense to the requirement of reporting particular information required by the law under challenge, and those decisions therefore in no way militate against our conclusion that depositor plaintiffs' efforts to litigate the Fifth Amendment issue at this time are premature.",fifth amendment challenge to the foreign and domestic reporting requirements
+705,109005,2,4,"The ACLU claims that the reporting requirements with respect to foreign and domestic transactions invade its associational interests protected by the First Amendment. We have earlier held a similar claim by this organization to be speculative and hypothetical when addressed to the recordkeeping requirements imposed by the Secretary. Supra, at 55-57. The requirement that particular transactions be reported to the Government, rather than that records of them be available through normal legal process, removes part of the speculative quality of the claim. But the only allegation found in the complaints with respect to the financial activities of the ACLU states that it maintains accounts at one of the San Francisco offices of the Wells Fargo Bank & Trust Company. There is no allegation that the ACLU engages with any regularity in abnormally large domestic currency transactions, transports or receives monetary instruments from channels of foreign commerce, or maintains accounts in financial institutions in foreign countries. Until there is some showing that the reporting requirements contained in the Secretary's regulations would require the reporting of information with respect to the organization's financial activities, no concrete controversy is presented to this Court for adjudication. O'Shea v. Littleton, 414 U. S., at 493-494.",plaintiff aclu's first amendment challenge to the foreign and domestic reporting requirements
+706,109242,2,1,"It is undisputed that the Regional Boards had no legal authority to decide whether a contractor had received excessive profits in Class A cases. [22] In such cases, the Regional Boards could investigate and recommend, but only the Board could decide. 32 CFR §§ 1472.3-1472.4. The reports were prepared long before the Board reached its decision. The Board used the Regional Board Report as a basis for discussion and, even when it agreed with the Regional Board's conclusion, it often did so as a result of an analysis of the flexible statutory factors completely different from that contained in the Regional Board Report. Chairman Hartwig testified: [W]hen the recommendation clearance of the Regional Board comes up on the Board agenda, the Board simply approves or disapproves the clearance. It does not adopt any of the memoranda that are before it. It does not ratify or adopt any of these staff memoranda. It simply, in the exercise of its judgment, says it is a clearance or it isn't clearance. And there is no Board-adopted document which you could call an opinion. App. 79. The Regional Board Reports are thus precisely the kind of predecisional deliberative advice and recommendations contemplated by Exemption 5 which must remain uninhibited and thus undisclosed, in order to supply maximum assistance to the Board in reaching its decision. Moreover, absent indication that its reasoning has been adopted, there is little public interest in disclosure of a report. The public is only marginally concerned with reasons supporting a [decision] which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a [decision] which was actually adopted on a different ground. NLRB v. Sears, Roebuck & Co ., ante, at 152. Indeed, release of the Regional Board's reports on the theory that they express the reasons for the Board's decision would, in those cases in which the Board had other reasons for its decision, be affirmatively misleading. Sterling Drug, Inc. v. FTC, 146 U. S. App. D. C. 237, 246-247, 450 F. 2d 698, 707-708 (1971); International Paper Co. v. FPC, 438 F. 2d 1349, 1358 (CA2), cert. denied, 404 U. S. 827 (1971). Accordingly, these reports are not final opinions, they do fall within the protection of Exemption 5, and they are not subject to compulsory disclosure pursuant to the Act. The Court of Appeals' attempt to impute decisional authority to Regional Boards by analogizing their final recommendations to the final decisions of United States district courts must fail. The decision of a United States district court, like the decision of the General Counsel of the NLRB discussed in NLRB v. Sears, Roebuck & Co ., ante, at 158-159, n. 25, has real operative effect independent of review by a court of appeals: absent appeal by one of the parties, the decision has the force of law; and, even if an appeal is filed, the court of appeals will be bound, within limits, by certain of the district court's conclusions. [23] The recommendation of a Regional Board, by contrast, has no operative effect independent of the review: consideration of the case by the Board is not dependent on the decision by a party to appeal—such consideration is an inevitable event without which there is no agency decision; and the recommendation of the Regional Board carries no legal weight whatever before the Board—review by the latter is, as the Court of Appeals conceded, de novo. Indeed, review is an entirely inappropriate word to describe the process by which the Board decides whether to issue a clearance following a recommendation to that effect by the Regional Board. The latter's recommendation is functionally indistinguishable from the recommendation of any agency staff member whose judgment has earned the respect of a decisionmaker. There is simply no sense in which Regional Boards have the power to make final dispositions and thus no sense in which the explanations of their recommendations can be characterized as final opinions. [24] See NLRB v. Sears, Roebuck & Co ., ante, at 158-159. In concluding that the Regional Board Reports are within the scope of Exemption 5, it is unnecessary to decide whether, as respondent strenuously argues and the Court of Appeals concluded, the Regional Boards are themselves agencies for the purposes of the Act. Respondent and the court below proceed on the premise that the final written product of an agency's deliberations may never fall within Exemption 5, and reason that since the Regional Board Report is the final product of the Regional Board, it must therefore be disclosable if the Regional Board is a separate agency. [25] The premise is faulty, however, overlooking as it does the fact that Exemption 5 does not distinguish between inter -agency and intra -agency memoranda. By including inter -agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency. Thus, if the Regional Boards are agencies for Class A purposes, their final recommendations are inter -agency memoranda; and, if they are not agencies separate from the Board, their recommendations are intra -agency memoranda. In either event, the Regional Board's total lack of decisional authority brings their reports within Exemption 5 and prevents them from being final opinions.",Regional Board Reports
+707,109242,2,2,"It is equally clear that a division of the Board has no legal authority to decide. Once again, it may analyze and recommend, but the power to decide remains with the full Board. The evidence is uncontradicted that the Division Reports were prepared before the Board reached its decision, were used by the full Board as a basis for discussion, and, as the Chairman testified, were prepared for and designed to assist the members of the Board in their deliberations; nor is the discussion limited to the material and analysis contained in the Division Report. Following the discussion, any Board member may disagree with the report's conclusion or agree with it for reasons other than those contained in the report. Indeed, as Chairman Hartwig testified, it is likely that this will occur because of the highly judgmental nature of the Board's decisions given the number and generality of the statutory criteria. In any event, the reasoning of the Division Report is never adopted—though its conclusion may be—and no effort is made to reach agreement on anything but the result. It is true that those who participate in the writing of the Division Report are among those who participate in the Board's decision, and that, human nature being what it is, they may not change their minds after discussion by the full Board. This creates a greater likelihood that the Board's decision will be in accordance with the Division Report than is the case with respect to a Regional Board Report and that, where the Board's decision is different, the Division Report will reflect the final views of at least one of the Board's members. See NLRB v. Sears, Roebuck & Co ., ante, at 158-159, n. 25. However, this is not necessarily so. The Board obviously considers its discussion following the creation of the Division Report to be of crucial importance to its decision for, not-withstanding the fact that a division is made up of a majority of the Board, it has been delegated no decisional authority. The member of the Board who wrote the report may change his mind as a result of the discussion or, consistent with the philosophy of Exemption 5, he may have included thoughts in the report with which he was not in agreement at the time he wrote it. The point is that the report is created for the purpose of discussion, and we are unwilling to deprive the Board of a thoroughly uninhibited version of this valuable deliberative tool by making Division Reports public on the unsupported assumption that they always disclose the final views of at least some members of the Board. [26] The effect of this decision is that, in those cases in which Statements and Summaries were not issued, the public will be largely uninformed as to the basis for decisions by the Renegotiation Board. Indeed, the decisions of both courts below—conceding as they both did the absence of decisional authority in either the Regional Boards or divisions of the statutory board—appear to have rested in the final analysis on the notion that the Renegotiation Board has an affirmative obligation under the Act to make public the reasons for its decisions; and that it must disclose its opinion or the nearest thing to an opinion in every case. However, Congress explicitly exempted the Renegotiation Board from all provisions of the Administrative Procedure Act except for the Public Information Section. 50 U. S. C. App. § 1221. Thus the opinion-writing section of the APA, 5 U. S. C. § 557— which itself applies only to adjudication required by statute to be determined on the record after opportunity for an agency hearing and even then only if the agency decision is not subject to de novo court review, 5 U. S. C. § 554—is inapplicable to Board decisions. The Freedom of Information Act imposes no independent obligation on agencies to write opinions. It simply requires them to disclose the opinions which they do write. NLRB v. Sears, Roebuck & Co ., ante, p. 132. If the public interest suffers by reason of the failure of the Board to explain some of its decisions, the remedy is for Congress to require it to do so. It is not for us to require disclosure of documents, under the purported authority of the Act, which are not final opinions, which do not accurately set forth the reasons for the Board's decisions, and the disclosure of which would impinge on the Board's predecisional processes. The judgment of the Court of Appeals is Reversed.",Division Reports
+708,109509,3,1,"In NAACP v. Alabama, 357 U. S. 449, and similar decisions, the Court has recognized a First Amendment right to engage in association for the advancement of beliefs and ideas . . . . Id., at 460. That right is protected because it promotes and may well be essential to the [e]ffective advocacy of both public and private points of view, particularly controversial ones that the First Amendment is designed to foster. Ibid. See Buckley v. Valeo, 424 U. S. 1, 15; NAACP v. Button, 371 U. S. 415. From this principle it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such institutions. But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle. As the Court stated in Norwood v. Harrison, 413 U. S. 455, the Constitution . . . places no value on discrimination, id., at 469, and while [i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts. Id., at 470. In any event, as the Court of Appeals noted, there is no showing that discontinuance of [the] discriminatory admission practices would inhibit in any way the teaching in these schools of any ideas or dogma. 515 F. 2d, at 1087.",Freedom of Association
+709,109509,3,2,"In Meyer v. Nebraska, 262 U. S. 390, the Court held that the liberty protected by the Due Process Clause of the Fourteenth Amendment includes the right to acquire useful knowledge, to marry, establish a home and bring up children, id., at 399, and, concomitantly, the right to send one's children to a private school that offers specialized training—in that case, instruction in the German language. In Pierce v. Society of Sisters, 268 U. S. 510, the Court applied the doctrine of Meyer v. Nebraska ,  id., at 534, to hold unconstitutional an Oregon law requiring the parent, guardian, or other person having custody of a child between 8 and 16 years of age to send that child to public school on pain of criminal liability. The Court thought it entirely plain that the [statute] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. Id., at 534-535. In Wisconsin v. Yoder, 406 U. S. 205, the Court stressed the limited scope of Pierce, pointing out that it lent no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society but rather held simply that while a State may posit [educational] standards, it may not pre-empt the educational process by requiring children to attend public schools. Id., at 239 (WHITE, J., concurring). And in Norwood v. Harrison, 413 U. S. 455, the Court once again stressed the limited scope of Pierce, id., at 461, which simply affirmed the right of private schools to exist and to operate . . . . Id., at 462. It is clear that the present application of § 1981 infringes no parental right recognized in Meyer, Pierce, Yoder, or Norwood. No challenge is made to the petitioner schools' right to operate or the right of parents to send their children to a particular private school rather than a public school. Nor do these cases involve a challenge to the subject matter which is taught at any private school. Thus, the Fairfax-Brewster School and Bobbe's School and members of the intervenor association remain presumptively free to inculcate whatever values and standards they deem desirable. Meyer and its progeny entitle them to no more.",Parental Rights
+710,109509,3,3,"The Court has held that in some situations the Constitution confers a right of privacy. See Roe v. Wade, 410 U. S. 113, 152-153; Eisenstadt v. Baird, 405 U. S. 438, 453; Stanley v. Georgia, 394 U. S. 557, 564-565; Griswold v. Connecticut, 381 U. S. 479, 484-485. See also Loving v. Virginia, 388 U. S. 1, 12; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541. While the application of § 1981 to the conduct at issue here—a private school's adherence to a racially discriminatory admissions policy—does not represent governmental intrusion into the privacy of the home or a similarly intimate setting, [14] it does implicate parental interests. These interests are related to the procreative rights protected in Roe v. Wade, supra , and Griswold v. Connecticut, supra . A person's decision whether to bear a child and a parent's decision concerning the manner in which his child is to be educated may fairly be characterized as exercises of familial rights and responsibilities. But it does not follow that because government is largely or even entirely precluded from regulating the child-bearing decision, it is similarly restricted by the Constitution from regulating the implementation of parental decisions concerning a child's education. The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. See Wisconsin v. Yoder, supra, at 213; Pierce v. Society of Sisters, supra, at 534; Meyer v. Nebraska, 262 U. S., at 402. [15] Indeed, the Court in Pierce expressly acknowledged the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils . . . . 268 U. S., at 534. See also Prince v. Massachusetts, 321 U. S. 158, 166. Section 1981, as applied to the conduct at issue here, constitutes an exercise of federal legislative power under § 2 of the Thirteenth Amendment fully consistent with Meyer, Pierce, and the cases that followed in their wake. As the Court held in Jones v. Alfred H. Mayer Co., supra : It has never been doubted . . . `that the power vested in Congress to enforce [the Thirteenth Amendment] by appropriate legislation' . . . includes the power to enact laws `direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.'  392 U. S., at 438 (citation omitted). The prohibition of racial discrimination that interferes with the making and enforcement of contracts for private educational services furthers goals closely analogous to those served by § 1981's elimination of racial discrimination in the making of private employment contracts [16] and, more generally, by § 1982's guarantee that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. 392 U. S., at 443.",The Right of Privacy
+711,109509,2,2,"The District Court, without explanation or citation of authority, awarded attorneys' fees of $1,000 against each of the two schools. The Court of Appeals reversed this part of the District Court's judgment. Anticipating our decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, the appellate court refused to adopt the so-called private attorney general theory under which attorneys' fees could be awarded to any litigant who vindicates an important public interest. And it could find no other ground for the award: no statute explicitly provides for attorneys' fees in § 1981 cases, [18] and neither school had evinced  `obstinate obduracy'  or bad faith in contesting the action. 515 F. 2d, at 1089-1090. Mindful of this Court's Alyeska decision, the petitioners do not claim that their vindication of the right of Negro children to attend private schools alone entitles them to attorneys' fees. They make instead two other arguments. First, the petitioners claim that the schools exhibited bad faith, not by litigating the legal merits of their racially discriminatory admissions policy, but by denying that they in fact had discriminated. To support this claim, the petitioners cite a number of conflicts in testimony between the McCrarys, the Gonzaleses, and other witnesses, on the one hand, and the officials of the schools, on the other, which the District Court resolved against the schools in finding racial discrimination. Indeed, the trial court characterized as unbelievable the testimony of three officials of the Fairfax-Brewster School. 363 F. Supp., at 1202. By stubbornly contesting the facts, the petitioners assert, the schools attempted to deceive the court and, in any event, needlessly prolonged the litigation. We cannot accept this argument. To be sure, the Court has recognized the inherent power of the federal courts to assess attorneys' fees when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . . F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U. S. 116, 129. See Alyeska, supra, at 258-259; Vaughan v. Atkinson, 369 U. S. 527. But in this case the factual predicate to a finding of bad faith is absent. Simply, because the facts were found against the schools does not by itself prove that threshold of irresponsible conduct for which a penalty assessment would be justified. Whenever the facts in a case are disputed, a court perforce must decide that one party's version is inaccurate. Yet it would be untenable to conclude ipso facto that that party had acted in bad faith. As the Court of Appeals stated, 515 F. 2d, at 1090: Faults in perception or memory often account for differing trial testimony, but that has not yet been thought a sufficient ground to shift the expense of litigation. We find no warrant for disturbing the holding of the Court of Appeals that no bad faith permeated the defense by the schools of this lawsuit. The petitioners' second argument is that while 42 U. S. C. § 1981 contains no authorization for the award of attorneys' fees, 42 U. S. C. § 1988 implicitly does. In relevant part, that section reads: The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . . The petitioners assert, in the words of their brief, that § 1988 embodies a uniquely broad commission to the federal courts to search among federal and state statutes and common law for the remedial devices and procedures which best enforce the substantive provisions of Sec. 1981 and other civil rights statutes. As part of that broad commission the federal courts are obligated, the petitioners say, to award attorneys' fees whenever such fees are needed to encourage private parties to seek relief against illegal discrimination. This contention is without merit. It is true that in order to vindicate the rights conferred by the various Civil Rights Acts, § 1988 authorize[s] federal courts, where federal law is unsuited or insufficient `to furnish suitable remedies,' to look to principles of the common law, as altered by state law . . . . Moor v. County of Alameda, 411 U. S. 693, 702-703. See Sullivan v. Little Hunting Park, Inc., 396 U. S., at 239-240. But the Court has never interpreted § 1988 to warrant the award of attorneys' fees. And nothing in the legislative history of that statute suggests that such a radical departure from the long-established American rule forbidding the award of attorneys' fees was intended. More fundamentally, the petitioners' theory would require us to overlook the penultimate clause of § 1988: so far as the same is not inconsistent with the Constitution and laws of the United States. As the Court recounted in some detail in Alyeska, supra, at 247, passim, the law of the United States, but for a few well-recognized exceptions not present in these cases, [19] has always been that absent explicit congressional authorization, attorneys' fees are not a recoverable cost of litigation. Hence, in order to furnish an award of attorneys' fees, we would have to find that at least as to cases brought under statutes to which § 1988 applies, Congress intended to set aside this longstanding American rule of law. We are unable to conclude, however, from the generalized commands of § 1988, that Congress intended any such result. For the reasons stated in this opinion, the judgment of the Court of Appeals is in all respects affirmed. It is so ordered.",Attorneys' Fees
+712,109093,1,2,"The sole issue in this case is the validity of the sentence imposed by the District Court. Petitioner contends that before any adult sentence may be imposed § 5010 (d) requires, first, that the sentencing judge find explicitly that the convicted defendant would receive no benefit from treatment under the Act and, second, that the sentencing judge must explain the reasons for his finding. We begin with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end. [7] Gore v. United States, 357 U. S. 386, 393 (1958); Townsend v. Burke, 334 U. S. 736, 741 (1948); Blockburger v. United States, 284 U. S. 299, 305 (1932). Our task, therefore, is to determine whether the sentence imposed here was permitted under § 5010 (d) of the Act. The Federal Youth Corrections Act has been accurately described as the most comprehensive federal statute concerned with sentencing. United States v. Coefield, 155 U. S. App. D. C. 205, 209, 476 F. 2d 1152, 1156 (1973). The Act is in substantial part an outgrowth of recommendations made by the Judicial Conference of the United States more than 30 years ago. [8] The principles and procedures contained in the Conference recommendations were in turn largely based on those developed since 1894 for a system of treatment of young offenders in England, known as the Borstal system. See Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, and Criminal Justice Act of 1961, 9 & 10 Eliz. 2, c. 39. Statistics available at the time of the Conference study revealed the two principal motivating factors behind the enactment of the Act: first, the period of life between 16 and 22 years of age was found to be the time when special factors operated to produce habitual criminals. Second, then-existing methods of treating criminally inclined youths were found inadequate in avoiding recidivism. H. R. Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950) (hereinafter H. R. Rep. No. 2979). The Act was thus designed to provide a better method for treating young offenders convicted in federal courts in that vulnerable age bracket, to rehabilitate them and restore normal behavior patterns. Ibid. To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them, see n. 9, infra: first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U. S. C. §§ 5010 (b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U. S. C. § 5010 (a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act. The objective of these options represented a departure from traditional sentencing, and focused primarily on correction and rehabilitation. All persons under 22 years of age at the time of conviction were made eligible for probation or treatment under the Act, [9] the latter defined as corrective and preventive guidance and training designed to protect the public by correcting [their] antisocial tendencies. 18 U. S. C. §§ 5006 (e) and (g). To implement the program of treatment for youth offenders committed under the Act, a Youth Correction Division was created under the Board of Parole which, in conjunction with the Bureau of Prisons and the Probation Service, operates to provide the unique features of the Act's program. 18 U. S. C. § 5005. An important element of the program was that once a person was committed for treatment under the Act, the execution of sentence was to fit the person, not the crime for which he was convicted. Classification agencies were to be established by the Director of the Bureau of Prisons to receive and study the person committed and make recommendations to the Director as to appropriate treatment. 18 U. S. C. §§ 5014, 5015. Further, the range of treatment available was made broad to provide maximum flexibility. The Director was authorized both to adapt numerous public facilities, and to contract with public or private agencies, in order to provide institutional treatment which the Director could vary according to the committed person's progress or lack of it. 18 U. S. C. §§ 5011, 5015. An integral part of the treatment program was the segregation of the committed persons, insofar as practicable, so as to place them with those similarly committed, to avoid the influence of association with the more hardened inmates serving traditional criminal sentences. 18 U. S. C. § 5011. In addition to institutional treatment, the Division was empowered to order conditional release under supervision at any time of those committed under the Act, with federal probation officers providing the supervision. [10] 18 U. S. C. §§ 5007, 5017, 5019. Conditional release was mandatory after a period of time fixed by the statutory formula. 18 U. S. C. § 5017. See n. 4, supra. The Division was further authorized to order the unconditional discharge of committed persons after a fixed period of treatment, and was required unconditionally to discharge them within a period also fixed by statutory formula. 18 U. S. C. § 5017. A powerful tool available to the Division was its discretion to discharge committed persons unconditionally before it was required to do so, for upon such discharge the conviction upon which the sentence rested would be automatically set aside. 18 U. S. C. § 5021 (a). See n. 5, supra. Similarly, if the sentencing judge chose the second alternative created by the Act, i. e., placement of the youth offender on probation under its provisions, the judge himself could exercise his discretion to discharge the offender from probation unconditionally. 18 U. S. C. § 5021 (b). See n. 6, supra. This, too, would result in the automatic setting aside of the offender's conviction. 18 U. S. C. § 5021 (b). The foregoing describes the new options of treatment and probation made available to the federal sentencing court under the Act. [11] Our concern is not with the operation of these alternatives, but with the decision of the court to employ them, for the Act also preserved the power of trial judges to sentence youth offenders under any other applicable penalty provision. It is to the question of when a judge may sentence a youth offender outside the Act that we now turn.",The Federal Youth Corrections Act
+713,109093,1,3,"The language affecting the sentencing role of the judge under the Act is found in § 5010 (d), which tells us: If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision. Our concern is with the effect of the requirement of a no benefit finding on the judge's sentencing discretion. The legislative history clearly indicates that the Act was meant to enlarge, not restrict, the sentencing options of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort. The proposed legislation is designed to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of [youth offenders] that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens . . . . H. R. Rep. No. 2979, p. 1. (Emphasis added.) The purpose of the proposed legislation is to provide a new alternative sentencing and treatment procedure for [youth offenders]. S. Rep. No. 1180, 81st Cong., 1st Sess., 1 (1949) (hereinafter S. Rep. No. 1180). (Emphasis added.) Thus, apart from the discretion vested in administrative agencies for treatment of those committed under the Act, as described in Part II, the Act was intended to broaden the scope of judicial sentencing discretion to include the alternatives of treatment or probation thereunder. The Act was a product of studies made by a committee of federal judges under the auspices of the Judicial Conference of the United States. The views of the sponsors as to the effect of the Act on the sentencing discretion of the trial courts are thus of particular importance, and they uniformly support the view that the Act was intended to preserve the unfettered sentencing discretion of federal district judges. Most pertinent is the statement made by the Chairman of the Judicial Conference special committee appointed to study punishment for crime, see n. 8, supra, Chief Judge John J. Parker, who testified before the Subcommittee of the Senate Judiciary Committee, which conducted the only hearings held on the bill (S. 2609) enacted as the Federal Youth Corrections Act. Judge Parker stated: [T]he act . . . does not interfere with the power of the judge [with respect to sentencing youth offenders] but gives him merely an alternative method of treatment of those people. . . . He may still give the youthful offender the punishment prescribed by existing statutes, there is nothing in the bill that prevents that. All that the bill does is to provide that if in his judgment and discretion, he thinks that the offender before the court is one that can be treated with advantage under this bill, he can sentence him under this bill instead of under the existing law. ..... . . . I do not see any possible objection [to the Act]. They say that there are some of these fellows that ought to be given serious punishment notwithstanding their being young and it [the Act] does not prevent their being given serious punishment. Nothing prevents a man from getting 25 years punishment if he deserves it. Nothing prevents his being executed if he deserves such sentence. Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (hereinafter Hearings). To the same effect is the statement made by Circuit Judge Orie L. Phillips, the Chairman of the Conference subcommittee which gave particular attention to the treatment of youth offenders. See n. 8, supra. In response to the statement of Senator Kilgore, sponsor of S. 2609, that the bill takes nothing (in terms of sentencing) away from the court, Judge Phillips replied: That is correct; it is purely optional. Hearings 69. Earlier Judge Phillips had said of the bill: That is merely a flexibility and it is not a command that he send the boys up, to which Senator Kilgore replied: I agree with you on that . . . . Id., at 67. To the extent other testimony and the debates addressed the question of sentencing discretion under the Act, they in-invariably reflected the same view, [12] as did the House Report, quoted above, and the Department of Justice, which recommended enactment of S. 2609 and noted that the bill would not deprive the court of any of its present functions as to sentencing. S. Rep. No. 1180, pp. 10-11. The Senate Report's language was identical to that of the Department of Justice. [13] Id., at 1. The legislative history of the Act confirms the conclusion that Congress did not intend to alter or circumscribe the sentencing discretion of federal district judges by requiring that any substantive standard be met before the imposition of sentence. There is virtual unanimity of opinion in the legislative history that the Act was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options. To construe § 5010 (d)'s requirement of a no benefit finding to circumscribe that discretion would be incompatible with a clear congressional intent; such a construction would also be at odds with traditional sentencing doctrine. The intent of Congress was in accord with long-established authority in the United States vesting the sentencing function exclusively in the trial court. [14] If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute. Gurera v. United States, 40 F. 2d 338, 340-341 (CA8 1930). See Gore v. United States, 357 U. S. 386 (1958); Townsend v. Burke, 334 U. S. 736 (1948); Blockburger v. United States, 284 U. S. 299 (1932). The statutes referred to in this line of cases established a permissible range within which sentences could be imposed; if a judge imposed a sentence within that range, his exercise of discretion as to where within the permissible range sentence should be fixed was not subject to challenge. The authority to sentence a youth offender under any other applicable penalty provision is expressly reserved to federal trial courts by § 5010 (d), and thus is within the permissible range of sentences which may be imposed under the Act. The no benefit finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act's terms, thereby limiting the sentencing court's discretion. We will not assume Congress to have intended such a departure from wellestablished doctrine without a clear expression to disavow it. As our review has shown, the exclusive sentencing power of district judges was acknowledged, and Congress' intention to affirm that power was clearly indicated. From our conclusion that a finding of no benefit was not intended to constitute a substantive standard, it follows that a sentence outside the Act need not be accompanied by a statement of reasons why the court chose such a sentence. The only purpose of such a requirement would be to facilitate appellate supervision of, and thus to limit, the trial court's sentencing discretion. [15] In short, we hold that the discretion vested in a district judge under § 5010 (d) is essentially the same as the traditional discretion vested in the court, for example, to impose the minimum sentence on a first offender or a larger sentence on a recidivist. If the failure of a court to sentence a particular youth offender under the Act appears too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction, Blockburger, supra, at 305, since [w]hatever views may be entertained regarding severity of punishment . . . [t]hese are peculiarly questions of legislative policy. Gore, supra, at 393. (B) Although the Act was not in any way intended to circumscribe the discretion of sentencing courts, it did provide a new sentencing alternative designed to prevent youthful offenders from continuing their involvement in criminal conduct after the expiration of their sentence. In the novelty of the treatment option made available, and the importance of the objective it was to serve, lies the purpose of § 5010 (d)'s requirement that the court find no benefit before imposing a sentence other than one under § 5010 (b) or (c). Although well-established doctrine bars review of the exercise of sentencing discretion, limited review is available when sentencing discretion is not exercised at all. Yates v. United States, 356 U. S. 363, 366-367 (1958); United States v. Daniels, 446 F. 2d 967, 972 (CA6 1971); United States v. Williams, 407 F. 2d 940, 945 (CA4 1969). See also n. 7, supra. The requirement of the no benefit finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act. Such a finding would make unmistakably clear that the sentencing judge was not only aware of the existence of the new Act, but also knew that the youth offender before him was eligible because of his age for the treatment it provided to accomplish its important purpose. Appellate modification of a statutorily-authorized sentence . . . is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases. United States v. Hartford, 489 F. 2d 652, 654 (CA5 1974). (Emphasis in original.) Once it is made clear that the sentencing judge has considered the option of treatment under the Act and rejected it, however, no appellate review is warranted. The question whether the finding of no benefit must be explicit or whether it may be implicit in the record of a particular case is answered by the manifest desire of Congress to assure that treatment under the Act be considered by the court as one option whenever the youth offender is eligible for it. If the finding may be implied from the record, appellate courts must go on to determine what constitutes a sufficient showing of the requisite implication. To hold that a no benefit finding is implicit each time a sentence under the Act is not chosen would render § 5010 (d) nugatory; to hold that something more is necessary to support the inference that must be found in the record would create an ad hoc rule. Appellate courts should not be subject to the burden of case-by-case examination of the record to make sure that the sentencing judge considered the treatment option made available by the Act. Literal compliance with the Act can be satisfied by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act. This case provides an example of the problems arising when the required finding is left to implication. Counsel's references to the Act followed by the District Court's sentence indeed afford support for the argument that, by implication, the options of the Act were considered and rejected. However at the post-conviction hearing the District Court found from the record of the sentencing hearing the implication that the Act was not applicable. It is thus unclear whether this meant the court believed petitioner to be legally ineligible for treatment under the Act—which would be error—or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult. An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the end that the District Court conduct further proceedings consistent with this opinion. It is so ordered.",Sentencing Discretion Under the Act.(A)
+714,107545,2,1,"As the earlier opinion explained, the congressional assumption that some States have existing historic boundaries was based on the history of this Court's treatment of submerged lands. [8] The Court had early held that the States owned the land beneath their inland navigable waters. Pollard's Lessee v. Hagan, 3 How. 212. Following that case it was widely believed that the same rule would apply to the marginal sea, that is, that the States owned the land beneath the waters of the sea within their boundaries. [9] This belief was based on two assumptions neither of which was authoritatively tested until the 1940's: first, that at least some States had valid boundaries in the sea, and second, that the States owned submerged land within them. In a series of cases beginning in 1947, the second assumption was destroyed by this Court: the United States was held to have paramount rights in offshore lands as an attribute of national sovereignty. [10] The first assumption, however, was explicitly left standing by those decisions: . . . The question here is not the power of a State to use the marginal sea or to regulate its use in absence of a conflicting federal policy . . . . ..... . . . We intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis ā vis persons other than the United States . . . . The matter of State boundaries has no bearing on the present problem.  [11] (Emphasis added.) As we held in the earlier phase of the present case, Congress' purpose in the Submerged Lands Act was to restore the situation to what it had assumed it to be prior to 1947, and its method of doing this was to quit-claim back to the States the paramount rights that this Court had found to be an attribute of national sovereignty. [12] This quitclaim, like the cases that led to it, had nothing to do with the validity or location of state maritime boundaries. As Senator Cordon, the Acting Chairman of the Committee on Interior and Insular Affairs and the bill's chief exponent in the Senate, put the matter, The States of the United States have legal boundaries. It is not a part of the power or the duty of Congress to make determination with reference to those boundaries, or where those boundaries should lie. It is a matter for the courts to determine, or for the United States . . . and . . . the several States, to reach an agreement upon. The pending bill does not seek to invade either province . . . . Whenever a question arises as to a boundary, it will be determined exactly as any other question in law is determined, and the boundary will be established. . . . It is not within the province of Congress to change the present boundaries of Texas without the consent of the State of Texas. 99 Cong. Rec. 2620. (Emphasis added.) In the Court's prior opinion in this litigation we expressly adopted this construction of the Act. We accepted the then contention of the United States that the Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary. [13] We went on to say, [W]e find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union . . . . It was recognized [by Congress] that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence . . . the right of the Gulf States to prove boundaries in excess of three miles was preserved. [14]",the use of present boundaries.
+715,107545,2,2,"In the first phase of this case, the problem was which, if any, of the five Gulf States had boundaries that were cognizable for purposes of the Submerged Lands Act grant. Congress had limited boundaries so cognizable to boundaries as they existed at admission or as heretofore approved by Congress. The Court's decision at that time therefore turned entirely on the meaning of those two terms, which were consequently subjected to exacting analysis. We at that time rejected a contention made on behalf of the States, but apparently now adopted by the Court, that the words as they existed referred simply to the location of state boundaries at the time of admission; [15] we held, quite to the contrary, that the purpose of these words was not to affect the location of present state boundaries but to single out those boundary claims that had at one time or another been approved by Congress as the only ones cognizable under the Act. We reasoned as follows: The earlier `quitclaim' bills defined the grant in terms of presently existing boundaries, since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. . . . Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, . . . subsequent drafts of the bill introduced the twofold test of the present Actâ boundaries which existed at the time of admission and boundaries heretofore approved by Congress. It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in accordance with that theoryâ that the States should be `restored' to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State.  [16] (Emphasis added.) It was on this theory that we held that the words as they existed should properly be read to refer to the moment of admission rather than to preadmission claims, because Congress' purpose had been to allow only claims that it had approved. [17] Having defined the term as they existed to mean as acknowledged by Congress at the moment of admission, the Court in the prior litigation went on to hold that the Resolution of Annexation of 1845 [18] had, indirectly, been a congressional acknowledgment of the boundary established by the Republic of Texas Boundary Act of 1836, and that this act therefore defines Texas' present boundary. [19] The Act reads, in relevant part, as follows: beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande . . . . 1 Laws, Republic of Texas 133. (Emphasis in the Court's prior opinion. [20] ) The problem before us hereâ where the boundary of Texas isâ must be answered by determining where three leagues from land now is, for Texas has no historic boundary claim at all unless it is to three leagues from land. The question is one that the Court does not even reach: should the words from land be taken, today, to refer to the shoreline in 1836, or 1845, or to the present shoreline, and, if to the last of these, should land include artificial accretions built upon the land? It is to that question that I now turn.",the words as they existed.
+716,110996,1,6,Affirmed. JUSTICE STEVENS took no part in the consideration or decision of this case.,The judgment of the California Court of Appeal is
+717,110998,1,2,"
+MGH suggests that we lack jurisdiction to decide this case because the state-court decision rests on an adequate and independent state ground. The Supreme Judicial Court's opinion, however, stated unequivocally that state contract law provided no basis for ordering Revere to pay MGH for the hospital services rendered to Kivlin, 385 Mass., at 774, 434 N. E. 2d, at 186, and that MGH had not invoked the Commonwealth's Constitution in support of its claim, id., at 776, n. 6, 434 N. E. 2d, at 188, n. 6. In a section of its opinion entitled Eighth Amendment, the court premised Revere's liability squarely on the Federal Constitution. [4] Because the court's decision was based on an interpretation of federal law, we have jurisdiction notwithstanding the fact that the same decision, had it rested on state law, would be unreviewable here. See Oregon v. Hass, 420 U. S. 714, 719, and n. 4 (1975).
+The parties submit various arguments concerning MGH's standing to raise its constitutional claim in this Court. MGH, however, clearly has standing in the Article III sense: it performed services for which it has not been paid, and through this action it seeks to redress its economic loss directly. Moreover, prudential reasons for refusing to permit a litigant to assert the constitutional rights of a third party are much weaker here than they were in Craig v. Boren, 429 U. S. 190, 193-194 (1976), where the Court permitted a seller of beer to challenge a statute prohibiting the sale of beer to males, but not to females, between the ages of 18 and 21. In this case, as in Craig, the plaintiff's assertion of jus tertii was not contested in the lower court, see 385 Mass., at 776-777, n. 7, 434 N. E. 2d, at 188, n. 7, and that court entertained the constitutional claim on its merits. Unlike Craig, this case arose in state court and the plaintiff, MGH, prevailed. The Supreme Judicial Court, of course, is not bound by the prudential limitations on jus tertii that apply to federal courts. The consequence of holding that MGH may not assert the rights of a third party (Kivlin) in this Court, therefore, would be to dismiss the writ of certiorari, leaving intact the state court's judgment in favor of MGH, the purportedly improper representative of the third party's constitutional rights. See Doremus v. Board of Education, 342 U. S. 429, 434-435 (1952). In these circumstances, invoking prudential limitations on MGH's assertion of jus tertii would serve no functional purpose. Craig v. Boren, 429 U. S., at 194. [5]",We first address two preliminary issues.
+718,111282,1,1,"On May 18, 1982, several deputies from the Jefferson parish Sheriff's Department arrived at [petitioner's] home in response to a report by the [petitioner's] daughter of a homicide. The deputies entered the house, made a cursory search and discovered [petitioner's] husband dead of a gunshot wound in a bedroom and the [petitioner] lying unconscious in another bedroom due to an apparent drug overdose. According to the [petitioner's] daughter, the [petitioner] had shot her husband, then ingested a quantity of pills in a suicide attempt, and then, changing her mind, called her daughter, informed her of the situation and requested help. The daughter then contacted the police. Upon their arrival, the daughter admitted them into the house and directed them to the rooms containing the [petitioner] and the victim. The deputies immediately transported the then unconscious [petitioner] to a hospital and secured the scene. Thirty-five minutes later two members of the homicide unit of the Jefferson Parish Sheriff's Office arrived and conducted a follow-up investigation of the homicide and attempted suicide. The homicide investigators entered the residence and commenced what they described at the motion to suppress hearing as a `general exploratory search for evidence of a crime.' During their search, which lasted approximately two hours, the detectives examined each room of the house. 448 So. 2d 666, 668 (1984). Petitioner was subsequently indicted for the second-degree murder of her husband. She moved to suppress three items of evidence discovered during the search, including a pistol found inside a chest of drawers in the same room as the deceased's body, a torn up note found in a wastepaper basket in an adjoining bathroom, and another letter (alleged to be a suicide note) found folded up inside an envelope containing a Christmas card on the top of a chest of drawers. All of this evidence was found in the general exploratory search for evidence conducted by two homicide investigators who arrived at the scene approximately 35 minutes after petitioner was sent to the hospital. See ibid. By the time those investigators arrived, the officers who originally arrived at the scene had already searched the premises for other victims or suspects. See Mincey, supra, at 392. The investigators testified that they had time to secure a warrant before commencing the search, see 448 So. 2d, at 668, and that no one had given consent to the search, see App. C to Pet. for Cert. 7-8, 16, 19-20 (transcript of testimony of Detectives Zinna and Masson at suppression hearing). The trial court originally denied petitioner's motion to suppress. However, the trial court then granted petitioner's motion for reconsideration and partially reversed its former decision, holding that the gun and the suicide letter found in the Christmas card were obtained in violation of the Fourth Amendment and therefore must be suppressed. The Louisiana Court of Appeal denied the State's application for a writ of review. A sharply divided Louisiana Supreme Court subsequently held all of the evidence seized to be admissible.",The Louisiana Supreme Court states the facts as follows:
+719,110792,1,1,"The case is directly traceable to Treasure Salvors' filing of a motion in District Court for an order commanding the United States Marshal to arrest and take custody of the contested artifacts and to bring them within the jurisdiction of the court. Record 318. The roots of the case, however, rest in the earlier in rem action brought by Treasure Salvors to establish its title to the wreck and its bounty. The District Court held that possession and title rested with Treasure Salvors. Treasure Salvors, Inc. v. Abandoned Sailing Vessel, 408 F. Supp. 907, 911 (SD Fla. 1976). The Court of Appeals affirmed Treasure Salvors' ownership of all objects within the District Court's jurisdiction and to those objects outside its territory with respect to the United States. Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F. 2d 330 (CA5 1978) (Treasure Salvors I) . Treasure Salvors' subsequent request for an arrest warrant was predicated on this decision. [1] The warrant was to issue because it had already been decided that Treasure Salvors had sole title and right to possession of the Defendant vessel. App. 13. Notwithstanding the Court of Appeals' limitation of its opinion to artifacts within the District Court's jurisdiction and to rights in the treasure asserted by the United States, Treasure Salvors sought enforcement of the judgment against the State of Florida. It did so on grounds that this Court's decision in United States v. Florida, 420 U. S. 521 (1975), removed Florida's right to the artifacts, and that Florida was privy to and bound by Treasure Salvors I. Inasmuch as the State of Florida [and its officers] were privy to this litigation, it is clear that [the district court] confirmed to the Plaintiffs' . . . title to and right to immediate and sole possession of the vessel ... together with all her ... cargo, wherever the same may be found. App. 18 (emphasis deleted). In short, Treasure Salvors requested seizure of the artifacts in order to enforce an earlier judgment against the State. This is reason enough to conclude that the suit, and the accompanying warrant for arrest of the articles, were actions invoking federal judicial power against the State and not merely its agents. But even if this were not so, subsequent events reveal that the case is one against the State. After the State filed a motion to quash the warrant, Treasure Salvors filed a supplemental complaint requesting that the contract be held void; it also requested that the District Court rule [t]hat the State has no right, title or interest in any portions of the Atocha in its possession. Record 371. The District Court then entered an order to show cause addressed directly to the State of Florida. App. 63. The State then argued that the Eleventh Amendment barred the suit. After rejecting all of the State's arguments, the District Court ordered that Treasure Salvors have full right and title to articles arrested and that they are entitled to possession. Id., at 85. The Court of Appeals affirmed this judgment. I find the inescapable conclusion to be that this suit, as filed, litigated, and decided, was an action to determine the title of the State of Florida to the artifacts. [2] A suit of this type is at the heart of the Eleventh Amendment immunity. The line of cases culminating in Ex parte Young, 209 U. S. 123 (1908), are not to the contrary. In both United States v. Lee, 106 U. S. 196 (1882), and Tindal v. Wesley, 167 U. S. 204 (1897), the suits were against individual agents and did not purport to conclude the rights of the Government. As the Court correctly notes, Tindal made plain that a judgment awarding possession to the plaintiff would not subsequently bind the Government. Here the entire point of the in rem proceeding is to apply the judgment in Treasure Salvors I to erase the State's claim to the treasure. This is the only basis for issuance of the arrest warrant; it was the relief expressly requested by the respondents, and the relief subsequently granted by the District Court and the Court of Appeals. My position is supported by the precedents closest to the instant case: the In re New York cases, 256 U. S. 490 (1921), and 256 U. S. 503 (1921). The first In re New York decision arose from an in rem libel against the private owners of tugboats that had been at fault in collisions while chartered and operated by the State. The owners sought to bring in the Superintendent of Public Works who had entered into the charters on the State's behalf. The issue before this Court was whether the State could, without its consent, be impleaded in admiralty process in an action against private parties. The Court held that the proceedings against which prohibition is here asked, i. e., the attempt to implead the State, have no element of a proceeding in rem and are in the nature of an action in personam  against a state officer. The purpose of this distinction was not to suggest that in rem actions could be brought against the State, or even that the original libel was not a true in rem cause, but rather to highlight that impleading of a state official, no less than a direct action against the official, constituted a suit against a state officer in his official capacity and might require satisfaction out of the property of New York. 256 U. S., at 501. The second In re New York decision, a sovereign immunity case, made clear that a State's immunity extended to admiralty actions in rem. The principle so uniformly held to exempt the property of municipal corporations employed for public and governmental purposes from seizure by admiralty process in rem, applies with even greater force to exempt public property of a State used and employed for public and governmental purposes. 256 U. S., at 511. The plurality's reading of In re New York (II) is that an action otherwise barred as an in personam action against the State—cannot be maintained through seizure of property owned by the State. Ante, at 699. [3] Nothing in the language of Justice Pitney's opinion supports this interpretation. Moreover, the libel brought before the Court in that case was a true in rem action; an action in admiralty to recover damages caused by a ship is a classic in rem action, although after the owners of the vessel are identified the libel often will be amended to include an in personam claim as well. G. Gilmore & C. Black, Law of Admiralty 498 (2d ed. 1975) (Gilmore & Black). Therefore, In re New York (II) is as true an in rem action as the instant case. The grounds of similarity between the cases are clear: in both cases in rem libels were filed and process by arrest was requested; in both suits the State by its Attorney General responded and indicated to the District Court that the property to be arrested was in the possession and ownership of the State, and therefore immune from seizure and attachment. In both cases, the District Court overruled the suggestion and awarded process in rem, authorizing the arrest of the res. When the seizure of the Queen City finally reached this forum, the Court stated that the property was exempt from seizure by admiralty process in rem. [4] The plurality's distinction aside, the cases can be distinguished on but a single relevant point: the fact that ownership of the res is contested here. That, of course, is the grounds on which the Court of Appeals decided the case—a resolution which the plurality apparently rejects. In re New York (I) indicates that the Eleventh Amendment will bar a suit that has the effect of proceeding against a state officer and involving the State's property. In re New York (II) squarely stands for the proposition that sovereign immunity bars process against a res in the hands of state officers. This is true even though an in rem action strictly proceeds against the vessel, and the owner of the vessel or artifacts is not an indispensable party. Significantly, In re New York (II) did not distinguish between the service of process to arrest the res and the thrust of the libel itself to determine the rights in the vessel. I follow that course in this case, and refuse to sever the attempt to arrest the artifacts from the attempt to decide their ownership. The In re New York cases are particularly forceful because they reflect the special concern in admiralty that maritime property of the sovereign is not to be seized. This principle dates back to the English [5] and has not been significantly altered in this country. [6] The In re New York cases are but the most apposite examples of the line of cases concerning in rem actions brought against vessels in which an official of the State, the Federal Government, or a foreign government has asserted ownership of the res. The Court's consistent interpretation of the respective but related immunity doctrines pertaining to such vessels has been, upon proper presentation that the sovereign entity claims ownership of a res in its possession, to dismiss the suit or modify the judgment accordingly. [7] Finally, the allowance of an in rem suit against arguably state-owned maritime property rests on the personification theory of the res—that the action runs against the Atocha and not the State of Florida. This distinction between in rem and in personam actions has been decisively rejected. As the fiction of the personality of the ship declined, Gilmore & Black 615, 804-805, in rem actions were given in personam effect, and in personam judgments barred subsequent in rem actions. Id., at 802, 613-614. See, e. g., Burns Bros. v. Central R. Co. of New Jersey, 202 F. 2d 910 (CA2 1953) (L. Hand, J.). In short, under long-established admiralty law, arrest of sovereign maritime property is not tolerated, and an in rem suit directed at government property is an action against the State.",The Suit Is Against the State
+720,109429,1,1,"The constitutional privilege against self-incrimination has two primary interrelated facets: The Government may not use compulsion to elicit self-incriminating statements, see, e. g., Counselman v. Hitchcock, 142 U. S. 547; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. See, e. g., Haynes v. Washington, 373 U. S. 503. Murphy v. Waterfront Comm'n, 378 U. S. 52, 57 n. 6 (1964). Indeed, only weeks ago we said that the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity. Garner v. United States, 424 U. S. 648, 653 (1976) (emphasis supplied). Malloy v. Hogan, 378 U. S. 1 (1964), held that the Fifth Amendment—the essential mainstay of our American system of criminal prosecution, id., at 7—protects the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence. Id., at 8. See Spevack v. Klein, 385 U. S. 511, 514 (1967). As THE CHIEF JUSTICE noted last Term: This Court has always broadly construed [the Fifth Amendment] protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. Maness v. Meyers, 419 U. S. 449, 461 (1975). Further, a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U. S. 441 (1972). Lefkowitz v. Turley, 414 U. S. 70, 78 (1973). See Maness v. Meyers, supra, at 473 (WHITE, J., concurring in result). Thus, the Fifth Amendment not only excludes from use in criminal proceedings any evidence obtained from the defendant in violation of the privilege, but also is operative before criminal proceedings are instituted: it bars the government from using compulsion to obtain incriminating information from any person. Moreover, the protected information does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution . . . . Hoffman v. United States, 341 U. S. 479, 486 (1951). Maness v. Meyers, supra, at 461. And it is not necessary that a person be guilty of criminal misconduct to invoke the privilege; an innocent person, perhaps fearing that revelation of information would tend to connect him with a crime he did not commit, also has its protection.  `The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.'  Grunewald v. United States, 353 U. S. 391, 421 (1957), quoting Slochower v. Board of Education, 350 U. S. 551, 557-558 (1956). See E. Griswold, The Fifth Amendment Today 10-22 (1955); Ratner, Consequences of Exercising the Privilege Against Self-Incrimination, 24 U. Chi. L. Rev. 472 (1957). Accordingly, the fact that no criminal proceedings were pending against Palmigiano, ante, at 317, does not answer the crucial question posed by this case. The evidentiary use of his statements in a criminal proceeding lurked in the background, but the significant element for this case is that the Fifth Amendment also prohibits the government from compelling an individual to disclose information that might tend to connect him with a crime. Maness v. Meyers, supra , pointed up this distinction in its recognition that availability of motions to suppress compelled testimonial evidence do not remedy the Fifth Amendment violation. 419 U. S., at 460, 463.",As we have frequently and consistently recognized:
+721,109418,2,1,"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. U. S. Const., Amdt. 15, § 1. Although the Amendment is self-enforcing, litigation to secure the rights it guarantees proved time consuming and ineffective, while the will of those who resisted its command was strong and unwavering. Finally Congress decided to intervene. In 1965 it enacted the Voting Rights Act, designed to rid the country of racial discrimination in voting. South Carolina v. Katzenbach, 383 U. S., at 315. See also id., at 308-315. The Act proclaims that its purpose is to enforce the fifteenth amendment to the Constitution . . . , 79 Stat. 437; the heart of its enforcement mechanism is § 5. In language that tracks that of the Fifteenth Amendment, § 5 declares that no State covered by the Act shall enforce any plan with respect to voting different from that in effect on November 1, 1964, unless the Attorney General or a three-judge District Court in the District of Columbia declares that such plan does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . . 42 U. S. C. § 1973c (1970 ed., Supp. V). [1] While the substantive reach of § 5 is somewhat broader than that of the Fifteenth Amendment in at least one regard —the burden of proof is shifted from discriminatee to discriminator [2] —§ 5 is undoubtedly tied to the standards of the Constitution. [3] Thus, it is questionable whether the purpose and effect language states anything more than the constitutional standard, [4] and it is clear that the denying or abridging phrase does no more than directly adopt the language of the Fifteenth Amendment. In justifying its convoluted construction of § 5, however, the Court never deals with the fact that, by its plain language, § 5 does no more than adopt, or arguably expand, [5] the constitutional standard. Since it has never been held, or even suggested, that the constitutional standard requires an inquiry into whether a redistricting plan is ameliorative or retrogressive, a fortiori there is no basis for so reading § 5. While the Court attempts to provide a basis by relying on the asserted purpose of § 5—to preserve present Negro voting strength [6] —it is wholly unsuccessful. What superficial credibility the argument musters is achieved by ignoring not only the statutory language, but also at least three other purposes behind § 5. [7] Thus, the legislative history of the Voting Rights Act makes clear, and the Court assiduously ignores, that § 5 was designed to preclude new districting plans that perpetuate discrimination, [8] to prevent covered jurisdictions from circumventing the guarantees of the 15th amendment by switching to new, and discriminatory, districting plans the moment litigants appear on the verge of having an existing one declared unconstitutional, [9] and promptly to end discrimination in voting by pressuring covered jurisdictions to remove all vestiges of discrimination from their enactments before submitting them for preclearance. [10] None of these purposes is furthered by an inquiry into whether a proposed districting plan is ameliorative or retrogressive. Indeed, the statement of these purposes is alone sufficient to demonstrate the error of the Court's construction. All the purposes of the statute are met, however, by the inquiry § 5's language plainly contemplates: whether, in absolute terms, the covered jurisdiction can show that its proposed plan meets the constitutional standard. Because it is consistent with both the statutory language and the legislative purposes, this is the proper construction of the provision. Thus, it is the effect of the plan itself, rather than the effect of the change in plans, that should be at issue in a § 5 proceeding. [11] Ultimately, the Court admits as much by adding an inquiry into whether the proposed plan, even if ameliorative, is constitutional. After this admission, I cannot understand why the Court bothers at all with its preliminary inquiry into the nature of the change of plans, since the inquiry not only adds nothing, but will, I fear, prove to be a time-consuming distraction from the important business of assessing the constitutionality of the proposed plan. [12] Except for this unnecessary step, however, the Court's final reading of the statute, on its face, no more than duplicates my own. [13] Nonetheless, I still do not accept the Court's approach. After properly returning the constitutional inquiry to the § 5 proceeding, the Court inexplicably tosses off the question in a footnote, and never undertakes the analysis that both our constitutional cases and our § 5 cases have demanded. [14] This ultimate denigration of the constitutional standard is a result far short of the promise Congress held out in enacting, and re-enacting, the Voting Rights Act, and it is one in which I cannot join.",The Fifteenth Amendment provides:
+722,109113,1,2,"Every Court of Appeals which has faced the issue, including the Second Circuit in the present case, has held, contrary to the ruling of the referee, that the withholding provisions of the Internal Revenue Code, and of state or municipal tax statutes, require that a trustee in bankruptcy withhold income and social security taxes from payments of wage claims, and that he prepare and submit to the wage claimants and to the taxing authorities the reports and returns statutorily required of employers. United States v. Fogarty, 164 F. 2d 26, 30-33 (CA8 1947); United States v. Curtis, 178 F. 2d 268, 269 (CA6 1949), cert. denied, 339 U. S. 965 (1950); Lines v. California Dept. of Employment, 242 F. 2d 201, 202, reh. den., 246 F. 2d 70 (CA9), cert. denied, 355 U. S. 857 (1957); In re Connecticut Motor Lines, Inc., 336 F. 2d 96 (CA3 1964). To the same effect is In re Daigle, 111 F. Supp. 109, 111 (Me. 1953). A. The requirement of withholding. Section 3402 (a) of the Internal Revenue Code, 26 U. S. C. § 3402 (a), requires [e]very employer making payment of wages to deduct and withhold upon such wages . . . a tax determined. . . . Section 3401 (a) defines wages for withholding purposes to mean, with certain exceptions, all remuneration . . . for services performed by an employee for his employer, and § 3401 (d) defines employer as the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person. The latter section makes an exception where the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services; in that case, employer means the person having control of the payment of such wages. Sections T46-51.0 (a) and U46-8.0 of the New York City Administrative Code are generally to the same effect. [4] The trustee contends that the payment of wage claims under the Bankruptcy Act, although for wages within the meaning of that Act, is not the payment of wages under § 3402 (a), and that, in any event, the trustee is not the wage claimant's employer to whom § 3402 (a) relates. The payments to the wage claimants who filed in this case are payments for services performed by them for their former employer, Freedomland, before the commencement of the proceeding under the Act. There is, and can be, no dispute as to this. The fact that the services were performed for the bankrupt, rather than for the trustee, and the fact that payment is made after the employment relationship terminated, do not convert the remuneration into something other than wages, as defined by § 3401 (a) of the Internal Revenue Code. That statute, as has been noted, broadly defines wages to include, with stated exceptions not material here, all remuneration. And § 3401 (d), in defining employer, twice refers to services that the employee performs or performed. It thus speaks in the past tense as well as the present and thereby plainly reveals that a continuing employment relationship is not a prerequisite for a payment's qualification as wages. The income tax withholding regulations since 1943 have so provided in specific terms. 26 CFR § 31.3401 (a)-1 (a) (5); Treas. Reg. 120 § 406.205 (b) (1954); Treas. Reg. 116 § 405.105 (1944 and 1951 eds.); Treas. Reg. 115 § 404.101 (a) (1943). The regulations are not in conflict with the statute; they further the statutory purpose and are reasonable; and they are a valid exercise of the rulemaking power. Cammarano v. United States, 358 U. S. 498, 507-512 (1959). [5] The payment of the wage claims is thus payment of wages under § 3402 (a) of the Internal Revenue Code. The fact that in bankruptcy payment of wage claims is effected by one other than the bankrupt former employer does not defeat any withholding requirement. Although § 3402 (a) refers to the employer making payment of wages, § 3401 (d) (1), as also has been noted, provides that if the person for whom the services were performed does not have control of the payment of the wages for such services, the term employer then means the person having control of the payment of such wages. This obviously was intended to place responsibility for withholding at the point of control. The petitioner trustee suggests that control rests in the referee rather than in the trustee, because of the former's duty, under § 39a (5) of the Act, 11 U. S. C. § 67 (a) (5), to declare dividends. We need not determine whether it is the trustee, with his responsibility, under §§ 47a (8) and (11) of the Act, 11 U. S. C. §§ 75 (a) (8) and (11), for making recommendations and actual payments, or the referee, with his supervision over the general administration of the bankrupt estate, or the estate itself, that has control of the payment of such wages, within the meaning of § 3401 (d) (1) of the Internal Revenue Code. One of them is the employer and, as such, has the duty to withhold or to order the withholding, as the case may be. [6] An employer, under § 3402 (a), is thus present. The situation is the same with respect to FICA withholding. Section 3102 (a) of the Internal Revenue Code, 26 U. S. C. § 3102 (a), provides that the tax is to be collected by the employer by deducting from the wages as and when paid. Here, too, the payments clearly are wages under that statute, even though again, at the time of payment, the employment relationship between the bankrupt and the claimant no longer exists. And here, also, the regulations long and consistently have been to this effect. 26 CFR § 31.3121 (a)-1 (i); Treas. Reg. 128 § 408.226 (a) (1951); Treas. Reg. 106 § 402.-227 (a) (1940). The fact that the FICA withholding provisions of the Code do not define employer is of no significance, for that term is not to be given a narrower construction for FICA withholding than for income tax withholding. Because of the identity of definition already observed, n. 4, supra, the same rationale necessarily applies to the New York City withholding tax. The trustee finally suggests that the placing of a withholding obligation upon the trustee amounts to the imposition of a penalty barred by § 57j of the Act, 11 U. S. C. § 93 (j). This argument, however, rests upon the presence of § 6672 of the Internal Revenue Code, 26 U. S. C. § 6672, and §§ T46-65.0 (g) and U46-35.0 (g) of the New York City Administrative Code, all of which impose a penalty, apart from the tax, on a person who willfully fails to fulfill his obligation to withhold or who willfully attempts to evade or defeat any tax. That, obviously, is not this case. B. The requirement of reports and returns. This routinely follows from the obligation to withhold. Section 6051 (a) of the Internal Revenue Code, 26 U. S. C. § 6051 (a), provides that a person required to withhold must furnish the employee a written statement showing the wages subject to withholding and the amount withheld on account of each tax. A duplicate of that statement is to be available for filing with the Internal Revenue Service. § 6051 (d). Sections 6001 and 6011 require every person responsible for payment or collection of taxes to keep such records and make such returns as the Secretary prescribes. The applicable regulations respond to these statutes. 26 CFR §§ 31.6001-1, 31.6001-2, 31.6001-5, 31.6011 (a)-6 (a) (1), and 31.6051-1; Rev. Proc. 71-18, 1971-1 Cum. Bull. 684. It is undisputed that the petitioner trustee must comply with these provisions if he is subject to the withholding requirements of §§ 3402 and 3102. Nicholas v. United States, 384 U. S. 678, 693 (1966). The New York City Administrative Code provisions are to similar effect, §§ T46-52.0 and T46-54.0, U46-9.0 and U46-11.0, and we reach the same conclusions with respect to reports and returns thereunder. C. Expense and delay. The trustee argues, as the referee held, that the imposition of obligations to withhold, report, and file returns places a burden on the administration of bankrupt estates that is at odds with economic and expeditious administration and with the spirit of the Act. He places some reliance, as did the referee, on the paper by Referee Hiller. The Folly of the Fogarty Case, 32 Ref. J. 54 (1958), where the author states that the application of the Fogarty rule is sheer nonsense and that the case is out of harmony with sound bankruptcy law. Id., at 54, 56. There is, of course, an overriding concern in the Act with keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors. 3A W. Collier, Bankruptcy ¶¶ 62.05 [1], 62.02 [5] (14th ed. 1972). And it cannot be denied that paperwork takes time and occasions expense. In this particular case, withholding must be computed on the 413 wage claims; returns (Forms W-2, W-3, and 941) must be prepared and furnished the claimant and the Internal Revenue Service; records must be maintained; and the taxes withheld must be remitted to the respective taxing entities. We are not persuaded, however, that this burden would be so undue as to be inconsistent with or violative of the spirit of the Act. It is the same burden, no more and no less, that any employer of the same size must bear, and it is the same burden that is borne by any receiver or arrangement debtor or any other fiduciary with a like number of employees. The burden is not disproportionate. [7] Further, the Internal Revenue Service has endeavored to lighten the load by its alternative 25% combined bankruptcy withholding rate for income and FICA taxes. See n. 2, supra. New York City has done the same with its 1% withholding rate. Neither should the burden make it necessary, as is so often and so easily suggested, to employ an accountant. Computations at the rates of 25% and 1%, respectively, are simple and elementary arithmetic exercises, hardly worthy of an accountant's talent; a high school student is able to make those computations as is any bookkeeper, clerk, or the trustee himself. The added tasks of withholding, reporting, returning, and remitting are contemplated, in our view, by the Act. The interests of the taxing entities, who are creditors, too, and, through them, the interests of the public, outweigh the minuscule added burden for the estate. See Swarts v. Hammer, 194 U. S. 441, 444 (1904). If relief is to be considered for bankrupt estates in this respect, it is a matter for legislative, not judicial, concern. There is nothing in the Act or in the Internal Revenue Code that relieves the trustee of these duties. Cf. §§ 7507, 108 (b), 371, and 372 of the Internal Revenue Code, 26 U. S. C. §§ 7507, 108 (b), 371, and 372.","Withholding, Reports, and Returns"
+723,109113,1,3,"The trustee asserts that because the United States and the city failed to file proofs of claim for the taxes at issue, payment thereof is barred. It is said that these taxing entities were on notice, by reason of Freedomland's bankruptcy schedules, that the bankrupt owed the priority wage claims; that these claims were to be filed within six months; that the entities could obtain an extension of time, under § 57n of the Act, 11 U. S. C. § 93 (n), in which to compute and file their claims; and that they chose to ignore the referee's bar order directed, among others, to taxing authorities and agencies, App. 24a. This argument, in our view, misconceives the nature of the taxes that are to be withheld. Liability for the taxes accrues only when the wage is paid. Sections 3402 (a) and 3101 (a) of the 1954 Code; New York City Administrative Code §§ T46-51.0 (a) and U46-8.0. The wages that are the subject of the wage claims, although earned before bankruptcy, were not paid prior to bankruptcy. Freedomland had incurred no liability for the taxes. Liability came into being only during bankruptcy. The taxes do not partake, therefore, of the nature of debts of the bankrupt for which proofs of claim must be filed. Furthermore, the filing of proofs by the United States and New York City obviously would serve no purpose here. Proofs apprise the trustee and other creditors of the existence of claims against the estate. The priority wage claims themselves, however, cover the gross wages earned and unpaid. These include any tax that is to be withheld. The tax is not an added increment. We conclude, therefore, that proofs of claim on the part of the United States and of New York City with respect to withholding taxes on priority wage claims are not required.",Proofs of Claim
+724,109117,1,3,"The major issues dividing the parties are (1) whether an action at law in the Court of Claims under the Tucker Act, 28 U. S. C. § 1491, will be available to recover any deficiency of constitutional dimension in the compensation provided under the Rail Act for either the alleged erosion taking or the alleged conveyance taking, and (2) if the Tucker Act remedy is available, whether it is an adequate remedy. The United States, USRA, and the Penn Central Trustees contend that if resort to a supplemental remedy under the Tucker Act is necessary, it is both available and adequate. The plaintiffs below contend that the Rail Act precludes resort to the Tucker Act remedy, and if it does not, that the remedy is inadequate. The Special Court, speaking through Judge Friendly, comprehensively canvassed both issues, and in a thorough opinion, concluded that the Rail Act does not bar any necessary resort to the Tucker Act remedy and that the remedy is adequate. Our independent examination of the issues brings us to the same conclusion, substantially for the reasons stated by Judge Friendly in Parts VII and VIII-A of the Special Court opinion. 384 F. Supp. 895, 938-951 (1974). [14] Also disputed is the District Court's ruling on the uniformity of the Rail Act under the Bankruptcy Clause. We hold that the currently operable portions of the Act are uniform.",The Issues for Decision
+725,109117,1,4,"In its opening brief, the United States, speaking for all federal parties except USRA, argued that the case involved no erosion taking because, as a matter of law, compelled-loss operations pending implementation of the Final System Plan would not constitute a taking of the property of the claimants against the bankrupt railroad estates. The argument was that the general rule that if the railroad be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss, Brooks-Scanlon Co. v. Railroad Comm'n of Louisiana, 251 U. S. 396, 399 (1920); see also Bullock v. Florida ex rel. Railroad Comm'n, 254 U. S. 513 (1921); Railroad Comm'n of Texas v. Eastern Texas R. Co., 264 U. S. 79 (1924), is qualified by the requirement that a railroad estate suffer interim losses for a reasonable period pending good-faith efforts to develop a feasible reorganization plan if the public interest in continued rail service justifies the requirement. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U. S. 648, 677 (1935); see also RFC v. Denver & R. G. W. R. Co., 328 U. S. 495, 535-536 (1946); New Haven Inclusion Cases, 399 U. S. 392, 493 (1970). The United States maintained that the Rail Act represented just such a good-faith effort. In its Reply Brief 3-4, however, it abandoned the position that the Final System Plan was sure to be implemented within a reasonable period: Difficulties now unforeseen and unanticipated could in fact delay final implementation of the final system plan. For example, Congress could, in theory, successively disapprove several proposed final system plans. Thus, whatever the probabilities, the parties and this Court have no absolute assurance that the plan will in fact be implemented within a reasonable time. For that reason, we have determined that a taking of property through interim erosion, although extremely unlikely, remains a theoretical possibility under the Rail Act. Accordingly, we believe that an injunction preventing [USRA] from denying applications for discontinuance of service under Section 304 (f) in those circumstances might be appropriate unless, as we contend, a remedy for any otherwise uncompensated taking will be available under the Tucker Act. We are therefore persuaded that this Court must reach and decide the `Tucker Act question' presented by these appeals. (Footnote omitted.) We conclude in any event that the availability of a Tucker Act remedy if the Rail Act effects an erosion taking is ripe for adjudication. It is true that there has been no definitive determination that erosion of the Penn Central estate has reached unconstitutional dimensions —that is, that the estate has suffered losses unreasonable even in light of the public interest in continued rail service pending reorganization. But the Penn Central Reorganization Court found that Penn Central is not reorganizable on an income basis within a reasonable time under § 77 of the Bankruptcy Act. 382 F. Supp. 831, 842 (ED Pa. 1974). And it was stipulated in the District Court that Penn Central sustained ordinary net losses from mid-1970 through 1973 aggregating approximately $851 million, and that in the two months following enactment of the Rail Act on January 2, 1974, Penn Central had deficits in net railway operating income, total income, net income, and income available for fixed charges. It is therefore reasonable to conclude that compelled continued rail operations under these conditions pending implementation of the Final System Plan may accelerate erosion of the interests of plaintiffs below through accrual of post-bankruptcy claims having priority over their claims. Thus, failure to decide the availability of the Tucker Act would raise the distinct possibility that those plaintiffs would suffer an erosion taking without adequate assurance that compensation will ever be provided. [15] Yet there must be at the time of taking reasonable, certain and adequate provision for obtaining compensation. Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 659 (1890); see also Joslin Mfg. Co. v. City of Providence, 262 U. S. 668, 677 (1923); United States v. Dow, 357 U. S. 17, 21 (1958). Therefore we must determine if the Tucker Act is available. B. Availability of the Tucker Act Remedy for Any Erosion Taking The Tucker Act, 28 U. S. C. § 1491, provides in pertinent part: The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. A claim founded upon a taking of property for public use by operation of the Rail Act without just compensation in violation of the Fifth Amendment plainly would fall within the literal words of any claim against the United States founded . . . upon the Constitution . . . . The District Court, however, inquired whether the Rail Act affirmatively provided the Tucker Act remedy, and held that to read a Tucker Act remedy into the [Rail] Act would be judicial legislation on a grand, if not arrogant, scale. 383 F. Supp., at 529. The District Court made the wrong inquiry. The question is not whether the Rail Act expresses an affirmative showing of congressional intent to permit recourse to a Tucker Act remedy. Rather, it is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the Rail Act founded . . . upon the Constitution. For we agree with the Special Court that the true issue is whether there is sufficient proof that Congress intended to prevent such recourse. The [Rail] Act being admittedly silent on the point, the issue becomes whether the scheme of the [Rail] Act, supplemented by the legislative history, sufficiently evidences a Congressional intention to withdraw a remedy that would otherwise exist. 384 F. Supp., at 939. Our decisions affirm that this is the correct inquiry. The general rule is that whether or not the United States so intended, [i]f there is a taking, the claim is `founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine. United States v. Causby, 328 U. S. 256, 267 (1946). [I]f the authorized action . . . does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims. Yearsley v. Ross Construction Co., 309 U. S. 18, 21 (1940). [16] See also Hurley v. Kincaid, 285 U. S. 95 (1932). In Yearsley, the Court, speaking through Mr. Chief Justice Hughes, went on to hold that it cannot be doubted that the remedy to obtain compensation from the Government is as comprehensive as the requirement of the Constitution . . . . 309 U. S., at 22. (Emphasis supplied.) We turn then to the inquiry whether the Rail Act withdrew the Tucker Act remedy that would otherwise exist. 384 F. Supp., at 939. The argument that it should be so read rests on provisions of the Rail Act said plainly to evince Congress' determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties. The first provision referred to is § 209 which provides for the impaneling of the Special Court and the consolidation before it of all judicial proceedings with respect to the final system plan. The argument attaches significance to the omission in § 303 of any authority in the Special Court to enter a judgment against the United States. Reliance is also placed on two of the Act's funding provisions. Section 210 (b), captioned Maximum obligational authority, provides that the aggregate amount of [USRA] obligations . . . which may be outstanding at any one time shall not exceed $1,500,000,000 of which the aggregate amount issued to [Conrail] shall not exceed $1,000,000,000 . . . , and that [a]ny modification to [these] limitations . . . shall be made by joint resolution adopted by the Congress. Section 214 explicitly appropriates up to $12,500,000 to the Secretary of Transportation, to pay the expenses of preparing the reports and exercising other functions to be performed by him under this chapter, appropriates up to $5,000,000 to the Interstate Commerce Commission for its use in carrying out its functions, and appropriates up to $26,000,000 to USRA for purposes of carrying out its administrative expenses . . . . But these provisions at least equally support the inference that Congress was so convinced that the huge sums provided would surely equal or exceed the required constitutional minimum that it never focused upon the possible need for a suit in the Court of Claims. That this may very well have been the case is evident in a statement in the House Report: The timely implementation of the Final System Plan cannot be obstructed by controversy over the payment for the properties. The Committee is of the opinion that provisions of this title of the [Rail] Act, and especially the provision for deficiency judgment and payment of obligations of [USRA] . . . are more than adequate to guarantee that the creditors of the bankrupt railroad will receive all that they may Constitutionally claim. In view of these extraordinary protections, no litigation should be permitted to delay the Final System Plan. H. Rep. 55. That inference also finds support in the provision of § 303 (c) (3) that authorizes the Special Court to reduce payments to bankrupt estates if they are fairer and more equitable than is required as a constitutional minimum. That provision suggests that Congress thought the compensation made possible by the Rail Act could well exceed that required by the Constitution, and gave no consideration to withdrawal of the Tucker Act remedy because it was sure the Rail Act itself provided at least the constitutional minimum compensation. Finally, the manner in which Congress in § 601, 45 U. S. C. § 791 (1970 ed., Supp. III), expressly addressed the Rail Act's Relationship to other laws plainly implies that Congress gave no thought to consideration of withdrawal of the Tucker Act remedy. Section 601 (a) (2) provides that the antitrust laws are inapplicable with respect to any action taken to formulate or implement the final system plan . . .; § 601 (b) provides that [t]he provisions of the Interstate Commerce Act and the Bankruptcy Act are inapplicable to transactions under this chapter to the extent necessary to formulate and implement the final system plan whenever a provision of any such Act is inconsistent with this chapter; § 601 (c) provides that, [t]he provisions of section 4332 (2) (C) of Title 42 [National Environmental Policy Act of 1969] shall not apply with respect to any action taken under authority of this chapter before the effective date of the final system plan. Yet despite this clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws, Congress nowhere addresses the Tucker Act question. It is argued that any uncertainty in the scheme and text of the Rail Act is cleared up by legislative history from the House and the Senate that discloses that Congress meant the Rail Act to withdraw the jurisdiction of the Court of Claims under the Tucker Act. To the contrary, we read the legislative history as disclosing no more than a repeatedly emphasized belief that the Rail Act's provisions for compensation for the rail properties assured payment of the constitutional minimum. This is plainly the import of the oft-stated view that the taxpayers would not be unduly burdened by the sums provided, see, e. g., 119 Cong. Rec. 36354 (1973) (remarks of Rep. Metcalfe); id., at 36359 (remarks of Rep. Conte); and also of Senator Hartke's explanation of the Conference Report to the Senate, id., at 43094-43095, which included the statement: If we did nothing while continuing to mandate rail service, there is the distinct possibility in view of the prior action of Congress that a number of these people could make a claim against the Government which could be sustained in the Court of Claims. [17] As the Special Court remarked, and we agree, this statement in context is not inconsistent with the view that the Senator was so convinced that the bill, as amended in conference, contained such adequate compensation provisions that a suit in the Court of Claims could not prevail, particularly in view of what he had characterized as a `rather slim' chance of the creditors getting their money through liquidation, rather than as meaning that such a claim could not be maintained. 384 F. Supp., at 941. We do not think that the argument in support of reading the Rail Act to withdraw the Tucker Act remedy is aided by the colloquy on the House side between the House managers of the bill, 119 Cong. Rec. 42947 (1973). [18] That colloquy does not even concern the withdrawal of Court of Claims jurisdiction. It concerns only the deficiency judgment against Conrail and the powers of the Special Court. Finally, reliance is put upon what is referred to as subsequent legislative history in the form of statements by Congressmen during Oversight Hearings of the House Subcommittee on Transportation and Aeronautics on June 14, 1974, and on an amicus brief filed in this Court on behalf of 36 Congressmen. But post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act's passage. See, e. g., United States v. Mine Workers of America, 330 U. S. 258, 282 (1947). Such statements represent only the personal views of these legislators. since the statements were [made] after passage of the Act. National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612, 639 n. 34 (1967). Moreover, during oral argument before this Court, Representative Adams, spokesman for the congressional group, expressly conceded that circumstances might arise when the Tucker Act remedy would be available: QUESTION: So you do anticipate a situation where the Tucker Act would be available? MR. ADAMS: Oh, yes. Let's say, for example, that after this is all over—and this is the three-judge court's problem—that if a party comes in and says, you held us beyond the constitutional limit on erosion and at that point we are of the opinion that it went just too long, it was unreasonable, but that is a specific individual case at that point. QUESTION: And so the Tucker Act, you think, would be available in that situation? MR. ADAMS: Of course. We did not repeal the Tucker Act.  [19] (Emphasis supplied.) In sum, we cannot find that the legislative history supports the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. The most that can be said is that the Rail Act is ambiguous on the question. In that circumstance, applicable canons of statutory construction require us to conclude that the Rail Act is not to be read to withdraw the remedy under the Tucker Act. One canon of construction is that repeals by implication are disfavored. See, e. g., Mercantile National Bank v. Langdeau, 371 U. S. 555, 565 (1963); United States v. Borden Co., 308 U. S. 188, 198-199 (1939); Amell v. United States, 384 U. S. 158, 165-166 (1966). Rather, since the Tucker Act and the Rail Act are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. Morton v. Mancari, 417 U. S. 535, 551 (1974). Moreover, the Rail Act is the later of the two statutes and we agree with the Special Court: A new statute will not be read as wholly or even partially amending a prior one unless there exists a `positive repugnancy' between the provisions of the new and those of the old that cannot be reconciled. . . . This principle rests on a sound foundation. Presumably Congress had given serious thought to the earlier statute, here the broadly based jurisdiction of the Court of Claims. Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature's using language showing that it has made a considered determination to that end. . . . 384 F. Supp., at 943. The other relevant canon of construction that comes into play is that when a statute is ambiguous, construction should go in the direction of constitutional policy. United States v. Johnson, 323 U. S. 273, 276 (1944). There are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not available as compensation for any unconstitutional erosion not compensated under the Act itself. In such case, as the Special Court observed, [w]hen one admissible construction will preserve a statute from unconstitutionality and another will condemn it, the former is favored even if language, . . . and arguably the legislative history point somewhat more strongly in another way. 384 F. Supp., at 944. In other words our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. CSC v. Letter Carriers, 413 U. S. 548, 571 (1973). Lynch v. United States, 292 U. S. 571 (1934), fully supports our conclusion. Lynch presented a situation requiring this Court to determine whether a statute that effected an unconstitutional taking was also to be construed to withdraw a cause of action created by an earlier statute. The Economy Act of 1933, 48 Stat. 11, provided in § 17 that all laws granting or pertaining to yearly renewable term insurance are hereby repealed . . . . District Courts, affirmed by the Courts of Appeals for the Fifth Circuit, 67 F. 2d 490 (1933), and the Seventh Circuit, Wilner v. United States, 68 F. 2d 442 (1934), dismissed, on the basis of this provision, suits by beneficiaries of yearly renewable term policies brought under § 405 of the War Risk Insurance Act of 1917, 40 Stat. 410, expressly authorizing suits in the district courts respecting any disagreement as to a claim under the contract of insurance. The beneficiaries' claim was that there was an actionable disagreement within the meaning of § 405 because the Government had violated the terms of the policies by failing to pay the premiums when the insureds became totally and permanently disabled and had refused payment of benefits after the insureds died. This Court unanimously reversed the dismissals. Section 17 of the Economy Act was held to effect an unconstitutional taking of vested property rights in the beneficiaries created by the insurance contracts. The question then became whether § 17 had repealed the remedy of a suit in the district court provided by § 405 of the Insurance Act. The Court held, speaking through Mr. Justice Brandeis, that § 17 would not be read as depriving the beneficiaries of that remedy in the absence of a clear indication from Congress that the remedy was taken away. The Court said:  Fifth. There is a suggestion that although, in repealing all laws `granting or pertaining to yearly renewable term insurance,' Congress intended to take away the contractual right, it also intended to take away the remedy; that since it had power to take away the remedy, the statute should be given effect to that extent, even if void insofar as it purported to take away the contractual right. The suggestion is at war with settled rules of construction. It is true that a statute bad in part is not necessarily void in its entirety. A provision within the legislative power may be allowed to stand if it is separable from the bad. But no provision however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal effect and that the legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. Dorchy v. Kansas, 264 U. S. 286, 288, 290. Here, both those essentials are absent. There is no separate provision in § 17 dealing with the remedy; and it does not appear that Congress wished to deny the remedy if the repeal of the contractual right was held void under the Fifth Amendment. 292 U. S., at 586. Similarly, [t]here is no separate provision in [the Rail Act] dealing with the [Tucker Act] remedy; and it does not appear [from the statute or its legislative history] that Congress wished to deny the remedy if the Rail Act should cause an erosion taking that would require the payment of just compensation. We accordingly hold that the Tucker Act remedy is not barred by the Rail Act but is available to provide just compensation for any erosion taking effected by the Rail Act.",A.The Alleged Erosion Taking
+726,109117,1,5,"The District Court declined to decide whether the provisions governing the procedures for and terms of the final conveyance of rail properties to Conrail (the conveyance taking issue) violate the Fifth Amendment, thus rendering the Rail Act invalid in its entirety. [20] The District Court was persuaded that these issues are premature. 383 F. Supp., at 517. Briefly, the challenges to the final-conveyance provisions assert that the Rail Act is basically an eminent domain statute and, because compensation is not in cash but largely in stock of an unproved entity, will necessarily work an unconstitutional taking. [21] A variant of the argument is that, even if a reorganization statute, the Rail Act would be unconstitutional unless the Tucker Act remedy is now held to assure payment of any amount by which the market value of stocks and securities awarded by the Special Court is less than the value of the rail properties conveyed. The New Haven Trustee goes further; he argues that even if a reorganization statute, the Rail Act violates substantive due process by failing to assure the fair and equitable equivalent of the rail properties valued at their highest and best use. The New Haven Trustee also contends that the conveyance provisions constitute a taking such as that threatened by interim erosion: they require operations of the railroad to continue, albeit in a different form, even if the liquidation value for highest and best use is greater than the value of the railroad as a going concern. Finally, the New Haven Trustee and the creditor parties contend that the conveyance provisions deny procedural due process, because they mandate the final conveyance before any meaningful determination of its fairness, and because no provision is made for creditor or stockholder consideration of or voting upon the Final System Plan. All of the parties now urge that the conveyance taking issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live Case or Controversy, [22] we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the Case or Controversy sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, [23] the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties. The District Court's holding of prematurity was influenced by the statutory scheme that requires several decisional steps before the final conveyance. The possibility that the reorganization court might determine under § 207 (b) that the Rail Act process is not fair and equitable to the railroad estate, or that Congress might disapprove the Final System Plan, § 208 (a), or that the Special Court would not order the final conveyance pursuant to § 303 (b), led the District Court to conclude that the question whether the final-conveyance provisions are constitutional was too speculative to warrant anticipatory judicial determinations. Eccles v. Peoples Bank, 333 U. S. 426, 432 (1948). [24] But subsequent to the District Court's opinion, the Penn Central Reorganization Court determined that the Rail Act did not provide a process that would be fair and equitable to the estate, In re Penn Central Trans. Co., 382 F. Supp. 856 (ED Pa. 1974). On appeal to the Special Court under § 207 (b), that determination has been reversed, although the Special Court has not rendered its judgment, pending our decision of this case. 384 F. Supp., at 955. See n. 14, supra. We agree with the parties that this change in circumstance has substantially altered the posture of the case as regards the maturity of the final-conveyance issues. Whatever may have been the case at the time of the District Court decision, there can be little doubt, for reasons to be detailed, that some of the conveyance taking issues can and must be decided at this time. And, since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court's decision that must govern. [25] First, the implementation of the Rail Act will now lead inexorably to the final conveyance, although the exact date of that conveyance cannot be presently determined. It is true that Congress can reject the first plan presented to it by the USRA, § 208 (a), and that the Rail Act, while prescribing with precision the timing of the presentation of that plan, §§ 207 (c) and (d), does not mandate the presentation of successive plans at any particular time. The Rail Act does, however, contemplate that USRA will continue to present plans, § 208 (b), until one becomes effective, § 209 (a). Thus, we must assume there will be compliance with the Rail Act's mandatory terms in this respect and that a Final System Plan will at some time be certified to the Special Court. § 209 (c). [26] Second, the Special Court is mandated to order the conveyance of rail properties included in the Final System Plan and is granted no discretion not to order the transfer. [27] While mandatory language does not necessarily deny a court of equity flexibility, Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944), the central scheme of the Rail Act defers decision of any controversies over the terms of the transfer of rail properties until after the transfer has occurred. H. Rep. 55; S. Rep. No. 93-601, p. 34 (1973) (hereinafter S. Rep.). [28] The Special Court's opinion suggests that the mandatory order to convey probably could not prevent the Special Court from refusing to order the conveyance, indirectly if not by a direct injunction, if it were convinced that appellees' constitutional rights were certain to be violated. 384 F. Supp., at 931; Marbury v. Madison, 1 Cranch 137 (1803). But the possibility that a court may later decline to enforce the Rail Act as written because of its unconstitutionality cannot constitute a contingency itself pretermitting earlier consideration of the constitutionality of the Act. Cf. Albertson v. SACB, 382 U. S. 70, 76-77 (1965). It appears, then, that the conveyance of Penn Central's rail properties to Conrail cannot be prevented by the debtor or its creditors or stockholder; and, while the exact terms of the conveyance remain to be decided, an order of the Special Court directing the conveyance is virtually a certainty. The Rail Act empowers no court, including this Court, to prevent it. Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Pennsylvania v. West Virginia, 262 U. S. 553, 592-593 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 536 (1925); Carter v. Carter Coal Co., 298 U. S. 238, 287 (1936). One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough. Pennsylvania v. West Virginia, supra, at 593. [29] True, there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available. Cf. Public Affairs Press v. Rickover, 369 U. S. 111 (1962). Several factors militate, however, against that course in this case. First, decisions to be made now or in the short future may be affected by whether or not the conveyance taking issues are now decided. The constitutionality of the final conveyance may be interwoven with the validity of the abandonment provisions. See n. 24, supra. The Penn Central Trustees may delay expending funds for maintenance in the interval before the final conveyance if constitutional doubts linger about ultimate reorganization under the Rail Act. See Reply Brief for Penn Central Trustees 12. Second, the Act is a carefully structured method for planning and implementing a reorganization scheme. It necessitates the present denial to the railroads in reorganization of options otherwise available. For example, the New Haven Trustee filed in the District Court a motion to dismiss the § 77 proceeding, and to set up an equity receivership to liquidate Penn Central's assets. So long as reorganization under the Rail Act remains possible, an equity receivership is not available. Third, and particularly significant, because of the structure of the Act there is no better time to decide the constitutionality of the Act's mandatory conveyance scheme to minimize or prevent irreparable injury. The precise contours of the Final System Plan will not be known until shortly before its certification to the Special Court. [30] Until that Plan has been finally developed, the courts will not have any more settled facts concerning the rail properties to be conveyed, the valuation of those properties, or the value of Conrail stock and other securities to be transferred to the Penn Central estate than they do now. After the Final System Plan is effective, the Rail Act prohibits initial judicial review of its terms except by the Special Court. §§ 209 (a), 303 (b) (2). And this review is to occur after conveyance, not before. [31] Further, as all parties agree, the conveyance, because of its complexity and because of the long time lapse probable before valuation review is completed, in practical effect will be irreversible once it is made. Thus, we will be in no better position later than we are now to confront the validity of the final-conveyance provisions. Rather, delay in decision will create the serious risk that consideration of the validity of those provisions may either be too hasty to afford protection of rights or too late to prevent the conveyance or assure compensation if the Rail Act were found unconstitutional. [32] We hold, therefore, that the basic conveyance taking issues are now ripe for adjudication. This does not mean however that we need decide now all of the contentions pressed upon us. Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. Communist Party v. SACB, 367 U. S. 1, 71 (1961). For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. App. 205, 319, 371. Thus, it cannot be determined now what impact any particular theory of valuation may have when applied to either side of the equation, nor can we know where the interests of the various parties lie—that is, which methods of valuation would result in higher compensation to the estate or lower cost to Conrail. Rulings on these questions would plainly be rulings upon hypothetical situations that may or may not [arise]. Longshoremen's Union v. Boyd, 347 U. S. 222, 224 (1954). Moreover, valuation issues peculiarly require a much more developed record than has been prepared. Without evidence of actual figures supporting various valuation theories, a court is not able to discern what legal issues it is deciding, what effect its decision will have on the adversaries, [or] some useful purpose to be achieved in deciding them. Public Service Comm'n v. Wycoff Co., 344 U. S. 237, 244 (1952). Clearly the record on these issues does not yet provide the confining circumstances of particular situations, Communist Party v. SACB, supra, at 72, which best inform constitutional adjudication. Finally, there will be ample opportunity later to litigate valuation controversies after the factual record has matured. The Rail Act in terms vests the Special Court with the initial responsibility for valuation determinations, [33] subject to review by this Court. In that circumstance, we should surely await the Special Court's determinations. Public Service Comm'n v. Wycoff Co., supra, at 246. Were we to attempt decisions of valuation questions before the Special Court's determinations, we would necessarily be forced to a speculative interpretation of a statute not clear on the subject of valuation before the court entrusted with its construction has given us the benefit of its views. [34] Cf. Public Service Comm'n v. Wycoff Co., supra ; Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412 (1937). In sum, of the conveyance taking issues, we hold ripe for adjudication the questions (a) of the availability of the Tucker Act remedy if the consideration exchanged upon final conveyance of the rail properties is less than the constitutional minimum, (b) whether stocks, however valued, can be part of the consideration for the rail properties, and (c) whether procedural due process will be denied by the statutory process for conveyance. We hold further that decision of the questions concerning the method of valuation to be applied to either the rail properties or the consideration therefore is premature. B. Availability of Tucker Act Remedy for Any Conveyance Taking Whether the Rail Act precludes the availability of the Tucker Act remedy for any amount by which the consideration exchanged for the rail properties finally conveyed falls short of the constitutional minimum need not detain us. The reasons that led to our conclusion that the Rail Act, insofar as it may work an unconstitutional taking due to interim erosion, does not render a Tucker Act remedy unavailable apply equally to the conveyance taking issue. No party has suggested that a difference in result can be supported. The Rail Act authorizes inclusion in the Final System Plan of different kinds of consideration in exchange for the rail properties, subject to adjustment by the Special Court to assure fairness and equity. Congress fully expected that this consideration would provide the minimum compensation required by the Constitution; it wished to provide no more. If, however, that hopeful expectation should not be fulfilled, and the consideration exchanged for the rail properties should prove to be less than the constitutional minimum, the Tucker Act will be available as the jurisdictional basis for a suit in the Court of Claims for a cash award to cover any constitutional shortfall. C. Adequacy of the Tucker Act Remedy for Conveyance Taking It is argued, however, that, even if a Tucker Act remedy remains open, the remedy is inadequate because it fails to cure basic deficiencies in the conveyance provisions of the Rail Act. [35] We hold, to the contrary, that while the conveyance provisions of the Rail Act might raise serious constitutional questions if a Tucker Act suit were precluded, the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur as a result of the final-conveyance provisions. Further, with the Tucker Act remedy, the payment of fair and equitable consideration in compliance with the reorganization statutes is assured, and procedural due process is satisfied. Primarily, it is contended that the Tucker Act remedy is inadequate because the conveyance taking is an exercise of the eminent domain power and therefore requires full cash payment for the rail properties. [36] Since our reasons supporting the availability of the Tucker Act remedy assume that the basic compensation scheme of the Act is valid but could result in payment of less than the constitutional minimum, it might indeed be inconsistent with the Rail Act to suppose that a Tucker Act suit would lie for the entire value, in cash, of the rail properties. This argument fails, however, for two reasons. First, it is extremely questionable whether, even if the Rail Act were on its face an acquisition of private property for public use, the entire value of the property acquired would have to be paid in cash. More important, we believe that there is nothing in the Act fundamentally at odds with the expressed purpose of Congress to supplement the reorganization laws, see H. Rep. 29, and, with the Tucker Act, the Rail Act is valid as a reorganization statute. No decision of this Court holds that compensation other than money is an inadequate form of compensation under eminent domain statutes. Statements can be found in opinions that the compensation must be a full and perfect equivalent for the property taken, Monongahela Navigation Co. v. United States, 148 U. S. 312, 326 (1893); must reimburse the full and perfect equivalent in money of the property taken, United States v. Miller, 317 U. S. 369, 373 (1943); and must be the full monetary equivalent of the property taken, United States v. Reynolds, 397 U. S. 14, 16 (1970); see also Almota Farmers Elevator & Warehouse Co. v. United States, 409 U. S. 470, 473 (1973). [37] Yet, in none of these cases was compensation in a form other than cash at issue. The clear implication of other decisions is that consideration other than cash—for example, any special benefits [38] to a property owner's remaining properties—may be counted in the determination of just compensation. Bauman v. Ross, 167 U. S. 548, 584 (1897); see 3 P. Nichols, Eminent Domain § 8.62 et seq. (rev. 3d ed. 1974). [39] We need not, however, determine whether compensation in the form of securities would be constitutional if the Rail Act were merely an eminent domain statute; for the arguments in favor of this construction have no merit. First, it is contended that despite the express provision of § 301 (b) that Conrail shall not be an agency or instrumentality of the Federal Government, 45 U. S. C. § 741 (b) (1970 ed., Supp. III), federal participation through federally appointed members of the board of directors constitutes Conrail a federal instrumentality. [40] From that premise the contention proceeds that the conveyance is an exercise of eminent domain. But Conrail is not a federal instrumentality by reason of the federal representation on its board of directors. That representation was provided to protect the United States' important interest in assuring payment of the obligations guaranteed by the United States. Full voting control of Conrail will shift to the shareholders if federal obligations fall below 50% of Conrail's indebtedness. The responsibilities of the federal directors are not different from those of the other directors—to operate Conrail at a profit for the benefit of its shareholders. Thus, Conrail will be basically a private, not a governmental, enterprise. Second, it is contended that the Rail Act's provisions for a compelled conveyance and for the continuation of rail services pending formulation of the Final System Plan constitute the Act a condemnation statute. We see no significance in these features of the Act either. Congress, in enacting those provisions, clearly intended to legislate pursuant to the bankruptcy power. The Rail Act, like § 77 of the Bankruptcy Act, which the Rail Act supplements, merely advances another step in the direction of liberalizing the law on the subject of bankruptcies, Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U. S. 648, 671 (1935), and far-reaching though [it] be, [it has] not gone beyond the limit of congressional power . . . . Ibid. That is the teaching of RFC v. Denver & R. G. W. R. Co., 328 U. S. 495 (1946), where the Court sustained the cram-down provision of § 77 authorizing a reorganization court to confirm a plan despite its rejection by creditors. The Court said: We think that the provisions for confirmation by the courts over the creditors' objection are within the bankruptcy powers of Congress. Those powers are adequate to eliminate claims by administrative valuations with judicial review and they are adequate to require creditors to acquiesce in a fair adjustment of their claims, so long as the creditor gets all the value of his lien and his share of any free assets. Id., at 533. [41] Similarly, under the Rail Act, the Special Court has the duty to provide the railroad estates with the fair and equitable equivalent in Conrail securities for the rail properties conveyed. Finally, it is argued that there are defects in the Rail Act's provisions for judicial review that identify the Act as an exercise of the eminent domain power. The argument is frivolous. Although the time has not yet arrived for the mandatory transfer to Conrail, the reorganization courts have had a full opportunity to assess the fairness of the Rail Act's scheme to the rail estates. § 207 (b). The Special Court has reviewed those determinations and under § 303 (c) will have an opportunity to review the terms of the transfer, although not the conveyance itself. In addition, neither the Rail Act itself nor the procedures thereunder finally determine the interests of the respective creditors. Those will be decided in the § 77 reorganization courts, which will distribute to creditors the consideration received for the rail properties. There are, therefore, ample adequate [s]afeguards . . . to protect the rights of secured creditors . . . to the extent of the value of the property. Wright v. Union Central Life Ins. Co., 311 U. S. 273, 278 (1940); cf. North American Co. v. SEC, 327 U. S. 686 (1946). We are not to be understood to intimate that the Rail Act proceeding could not result in a compensable taking. We hold only that, since the Rail Act does not on its face exceed the broad scope of congressional power under the Bankruptcy Clause, cf. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., supra, at 670, [42] Congress has not formulated an unconstitutional reorganization plan in compelling a reorganization wherein the compensation to appellees consists of Conrail and USRA securities and other benefits so long as the creditor gets all the value of his lien and his share of any free assets. RFC v. Denver & R. G. W. R. Co., supra, at 533. This Act does differ from other reorganization statutes such as § 77, however, in that it requires a conveyance before it is possible to ascertain whether this last condition will be met. Thus, the conveyance is mandated without any prior judicial finding that there will be adequate resources in the reorganized company of whatever kind to compensate the debtor estates and, eventually, their creditors. Because of this congressional insistence upon accomplishing the transfer whatever the ultimate equity of the compensation provisions, any deficiency of constitutional magnitude in the value of the limited compensation provided under the Act will indeed be a taking of private property for public use. Cf. North American Co. v. SEC, supra, at 710. [43] Since we have already determined, however, that there would then be recourse to a Tucker Act suit in the Court of Claims for a cash award to cover any constitutional shortfall, the Rail Act does provide adequate assurance that any taking will be compensated. The remaining contentions regarding the validity of the final-conveyance provisions require little discussion in view of the availability of a Tucker Act suit. The first contention is that, even if considered as a reorganization statute, the Rail Act fails to assure that creditors will receive the full value of their liens in stock or securities. However, we have already held that, because of the possibility that the Rail Act will work a taking, there must be assurance of consideration equal to any constitutional shortfall, and that a Tucker Act remedy is available to provide that assurance. Thus, the value of the stocks and securities provided under the Act is backed up by what is essentially a guarantee of cash payment for any lack of fairness and equity of constitutional dimensions. The Tucker Act remedy fulfills perfectly, then, the function of the underwriting provision approved in the New Haven Inclusion Cases, 399 U. S., at 486-488. Similarly, the availability of the Tucker Act cures what might otherwise be a troublesome problem of procedural due process. The Tucker Act assures that the railroad estates and the creditors will eventually be made whole for the assets conveyed. Complainants evidence no interest in retaining their property for longer than the Rail Act requires. Indeed, their position is really that they want to be free to dispose of it sooner. Thus, there is no interest asserted in retaining the properties themselves; the only interest is in making sure that creditors receive fair compensation for those properties. On the other hand, the procedural sequence is vital to accomplishing the goals of the Act. If judicial review of the terms of the transfer was required before the conveyance could occur, the conveyance might well come too late to resolve the rail transportation crisis. As long as creditors are assured fair value, with interest, for their properties, the Constitution requires nothing more.",A.The Alleged Conveyance Taking
+727,109117,1,6,"We consider finally the contention that, because the Rail Act's provisions apply only to railroads in reorganization in the region, the statute lacks the uniformity required by Art. I, § 8, cl. 4, of the Constitution giving Congress power To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States. The District Court held that recourse to the bankruptcy clause to justify Congressional action is necessary only if that action impairs the obligation of contracts. 383 F. Supp., at 534 (Fullam, J., concurring). In that respect, the court found that the Rail Act adds virtually nothing to the powers already granted to reorganization courts under the uniform and admittedly valid provisions of § 77 of the Bankruptcy Act. . . . Authority to order conveyances free and clear of liens, and to `cram down' a plan of reorganization, already exists under § 77, and is not newly created or added by the [Rail] Act. Ibid. The court determined, however, that one provision of the Rail Act is newly created or added by the [Rail] Act. Section 207 (b) requires the reorganization court to dismiss the § 77 proceeding if it finds that the railroad is not reorganizable on an income basis within a reasonable time, and that the Rail Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization. The District Court noted that the New Haven Inclusion Cases, supra , held that inasmuch as the plan disposed of the New Haven's assets to the Penn Central for continued operations, § 77 could be used to reorganize the enterprise as an investment holding company, at least where the plan contemplates that the bulk of the rail properties will continue to be operated as a railroad by someone. 383 F. Supp., at 534. The District Court held that § 207 (b) of the Rail Act precludes a like reorganization under § 77 by requiring dismissal of the § 77 proceedings, and to that extent violates the uniformity clause since this dismissal relates only to debtors within the region covered by the Rail Act. We need not decide whether the District Court was correct in this respect. Following the decision of the District Court, the Penn Central Reorganization Court issued its 180-day order finding that, although Penn Central is not reorganizable on an income basis under § 77, the Rail Act does not provide a process which would be fair and equitable to the debtor's estate. 382 F. Supp. 856, 870-871. Rather than dismiss the § 77 proceeding as required by § 207 (b), however, the court stayed its order pending an appeal to the Special Court. The Special Court found that the processes prescribed in the Rail Act are fair and equitable if a remedy exists under the Tucker Act, and reversed. 384 F. Supp., at 910-911. The Rail Act expressly provides that this holding is nonreviewable. § 207 (b). Although we need not address today the issue whether the judgment of the Special Court is subject to review, we do hold that the Tucker Act remedy is available for any uncompensated taking occurring under the Rail Act. That holding obviates the possibility that the Penn Central Reorganization Court will ever confront the provisions for dismissal of a § 77 proceeding under § 207 (b) of the Rail Act. There remains, however, another aspect of the uniformity issue for decision. Appellees urge that the entire Rail Act violates the uniformity clause. The argument is that the uniformity required by the Constitution is geographic, Hanover National Bank v. Moyses, 186 U. S. 181, 188 (1902), and since the Rail Act operates only in a single statutorily defined region, the Act is geographically nonuniform. The argument has a certain surface appeal but is without merit because it overlooks the flexibility inherent in the constitutional provision. Section 77 was upheld against a like challenge on the ground of the capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1800 to the present day. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., 294 U. S., at 671. The Court therefore held that, though § 77 was a distinctive and far-reaching statute, treating railroad bankruptcies as a distinctive and special problem, it was not beyond the limit of congressional power. [44] The uniformity provision does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems. The problem dealt with [under the Bankruptcy Clause] may present significant variations in different parts of the country. Wright v. Vinton Branch, 300 U. S. 440, 463 n. 7 (1937). We therefore agree with the Special Court that the uniformity clause was not intended to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions. 384 F. Supp., at 915. The national rail transportation crisis that produced the Rail Act centered in the problems of the rail carriers operating in the region defined by the Act, and these were the problems Congress addressed. [45] No railroad reorganization proceeding, within the meaning of the Rail Act, was pending outside that defined region on the effective date of the Act or during the 180-day period following the statute's effective date. Thus the Rail Act in fact operates uniformly upon all bankrupt railroads then operating in the United States and uniformly with respect to all creditors of each of these railroads. The uniformity clause requires that the Rail Act apply equally to all creditors and all debtors, and plainly this Act fulfills those requirements. Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 172 (1946) (Frankfurter, J., concurring). No provision of the Act restricts the right of any creditor wheresoever located to obtain relief because of regionalism. 383 F. Supp., at 519. Our construction of the Bankruptcy Clause's uniformity provision comports with this Court's construction of other uniform provisions of the Constitution. The Head Money Cases, 112 U. S. 580 (1884), involved the levy on ships' agents or owners of a 50-cent tax for any passenger not a United States citizen who entered an American port from a foreign port by steam or sail vessel. Individuals engaged in transporting passengers from Holland to the United States challenged the levy as contrary to Art. I, § 8, cl. 1, under which Congress is empowered to lay and collect all Duties, Imposts and Excises [which] shall be uniform throughout the United States. The argument was that the head tax violated the uniformity clause because it was not also levied on noncitizen passengers entering this country by rail or other inland mode of conveyance. The Court upheld the tax, stating: The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case . . . is uniform and operates precisely alike in every port of the United States where such passengers can be landed. 112 U. S., at 594. That the tax was not imposed on noncitizens entering the Nation across inland borders did not render the tax nonuniform since the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation. Id., at 595. Similarly, the Rail Act is designed to solve the evil to be remedied, and thus satisfies the uniformity requirement of the Bankruptcy Clause. The argument that the Rail Act differs from the head tax statute because by its own terms the Rail Act applies only to one designated region is without merit. The definition of the region does not obscure the reality that the legislation applies to all railroads under reorganization pursuant to § 77 during the time the Act applies. Reversed.",Validity of the Rail Act Under Uniformity Requirement of Bankruptcy Clause
+728,109117,2,3,"The common stock of Conrail is plainly only token payment. Issuance of new and different securities by Conrail would have to have interest or dividend rights to be marketable and that would bring back into play some of the forces that plague the present trustees under § 77. Any securities issued by Conrail must minimize any actual or potential debt burden of Conrail, § 206 (i), 45 U. S. C. § 716 (i) (1970 ed., Supp. III). Moreover, § 301 (d) of the Rail Act provides that so long as more than half the debt of Conrail is guaranteed by the Government, a majority of the 15 directors are designated from outside—the Secretary of Transportation, the Chairman and the President of the USRA, and five others named by the President with the consent of the Senate. One cannot read the Rail Act and believe that Congress thought that federal money going into Conrail could be made subordinate to any debt created by Conrail. A contrary assumption would make the watch-dog purpose of § 301 (d) quite superfluous. Yet, unless Conrail's new debt were serviced, it could not be marketed and even if it were, it could add no element of value to the compensation received by the creditors of these railroads under a reorganization plan. The upshot is that compensation for properties acquired by Conrail would be mostly paid for in Conrail stock with a sprinkling of the bonds of the Association issued to Conrail, assuming that they were not expended in the operations of Conrail between the time it started its operation and the date of the final plan of reorganization. The value of the properties to be transferred has not yet been determined. We held in the New Haven Inclusion Cases, 399 U. S. 392, 489 (1970), where the New Haven road was being shut down and its assets sold, that just compensation was to be measured by the highest and best value of the assets sold. In that case that value was liquidation value. In light of the findings of the Reorganization Courts in the present cases, we cannot say that the $500 million of federally guaranteed bonds comes anywhere near any reasonably assured value. [10] Value of any substantial amount cannot be attributed to the common stock of Conrail, because most of the problems of the existing roads will be inherited by Conrail and its prospects of generating income in excess of costs and fixed charges are, if not nil, remote. It would be irony to call entry of a deficiency judgment against Conrail adequate to make up any deficiency. For that judgment would only eat away at any value which the common stock of Conrail had. The vicious character of these legislative decisions is emphasized by the cram-down provision of the Rail Act. In § 77 proceedings there is a cram-down provision to prevent one class from a holdup of a fair and equitable plan. Section 77, however, allows a cram-down only if the Court first finds the plan fair and equitable and after the security holders have had their hearing. Under the Rail Act the assets are first transferred to Conrail even before the Special Court has made its fair and equitable finding. Moreover, the security holders never have a vote on the plan. Congress has lowered all the procedural barriers and foisted on these rail carriers a conveyance of their assets which, if done by private parties in control of a bankrupt estate, would be a fraudulent conveyance. Here it is achieved by Congress' purporting to act in the public interest. That is a taking for a public purpose; but by Fifth Amendment standards it is a taking of property without assurance of just compensation.",Enter a deficiency judgment against Conrail.
+729,111430,2,1,"The primary factor that caused the Court in Wolff to qualify and restrict the right to call witnesses was said to be institutional safety. Fearing that inmates might be subject to the unwritten code that exhorts immates not to inform on a fellow prisoner, id., at 562, and concerned that honoring a witness request might subject the witness to a risk of reprisal or [might] undermine authority, the Court concluded that the hazards presented in individual cases of reprisal against testifying inmates made dangerous the disclosure to a charged inmate of a board's reasons for refusing to hear his witnesses. Id., at 566. Again today, the Court relies on the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff. Ante, at 495. Presumably, the Court's concern is that an inmate will intimidate or coerce defense witnesses into testifying falsely, and that a witness who goes to officials to disclose such threats will be the target of retaliation if a disciplinary board announces that institutional safety precludes it from hearing the witness. [11] The option of sealed files, subject to later judicial review in camera, [12] would fully protect against the threat of reprisal and intimidation by allowing prison officials to refuse to disclose to the inmate those record statements they feared would compromise institutional safety. The in camera solution has been widely recognized as the appropriate response to a variety of analogous disclosure clashes involving individual rights and government secrecy needs. For example, after this Court in McCray v. Illinois, 386 U. S. 300 (1967), held that the identity of informants relied on by the police need not always be disclosed to the defense at suppression hearings, lower courts turned to in camera hearings to protect the interests of both the government and the defendant. W. LaFave, Search and Seizure § 3.3, p. 583 (1978). Through such hearings into informant identity, the government can be protected from any significant, unnecessary impairment of secrecy, yet the defendant can be saved from what could be serious police misconduct. United States v. Moore, 522 F. 2d 1068, 1073 (CA9 1975). [13] Similarly, Congress specifically invoked in camera review to balance the policies of disclosure and confidentiality contained in the exemptions to the Freedom of Information Act. 5 U. S. C. § 552(a)(4)(B). Congress stated that in camera review would plainly be [the] necessary and appropriate means in many circumstances to assure that the proper balance between secrecy and disclosure is struck. S. Rep. No. 93-1200, p. 9 (1974). Other examples in which Congress has turned to similar procedures abound, such as the federal wiretapping statute [14] and the Foreign Intelligence Surveillance Act of 1978, [15] both of which rely on closed judicial process to balance individual rights and Government secrecy needs in determining whether wiretapping is justified. If the compelling Government secrecy needs in all these settings can be safeguarded fully through closed judicial process, it can hardly be gainsaid that the interest of prison officials in keeping confidential the basis for refusing to hear witnesses will be fully protected by the same process. Indeed, the in camera solution protects the institutional concerns with which the Court purports to be concerned just as well as does the Court's solution. Under the Court's approach, prison officials at some point [must] state their reason for refusing to call witnesses . . . . Ante, at 492. But if institutional safety or reprisal threats formed the basis for the refusal, stating that reason [16] in open court would create hazards similar to those the Court relies on to eschew a requirement that these reasons be disclosed at the disciplinary hearing. Recognizing this fact, the Court holds that, if prison security or similar paramount interests appear to require it, ante, at 499, the courtroom justifications for refusing to hear a witness can in the first instance, ibid., be presented in camera. [17] Yet once the Court acknowledges that in camera review adequately protects the institutional safety concerns discussed in Wolff, such concerns simply evaporate in the consideration of whether due process demands a contemporaneous-record explanation for the refusal to hear witnesses. As even the Court acknowledges, then, the combination of sealed files and in camera review more than adequately protects institutional safety, the primary factor that justified Wolff's qualification of the inmate's right to present defense witnesses.",Institutional Hazards and the Threat of Reprisal
+730,111430,2,2,"To restrict the right to call witnesses, the Court in Wolff also relied, although less centrally, on vaguely defined correctional goals that seemed to amount to the need for swift punishment. 418 U. S., at 566. Again today, the Court invokes the need to provide swift discipline in individual cases, ante, at 495, as a basis for refusing to require that prison officials provide a record statement of reasons for declining to hear requested witnesses. These statements provide unconvincing support for refusing to require a written explanation when witness requests are denied. If swift discipline is a legitimate overriding concern, then why hold hearings at all? And if the imperatives of swift discipline preclude the calling of witnesses in any particular case, stating that reason would suffice. More generally, the twinkling of an eye that it would take for a board to offer brief, contemporaneous reasons for refusing to hear witnesses would hardly interfere with any valid correctional goals. Indeed, the requirement of stated reasons for witness denials would be particularly easy to comply with at disciplinary hearings, for Wolff already requires provision of a  `written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action. 418 U. S., at 564 (citation omitted). To include in this statement a brief explanation of the reason for refusing to hear a witness, such as why proffered testimony is irrelevant or cumulative, could not credibly be said to burden disciplinary boards in any meaningful way in their task of completing disciplinary report forms. I have expressed previously my view that: [I]t is not burdensome to give reasons when reasons exist. . . . . . . As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary. Board of Regents v. Roth, 408 U. S. 564, 591 (1972) (dissenting). If ever that view is true, it is surely true here. See also Hewitt v. Helms, 459 U. S. 460, 495 (1983) (STEVENS, J., dissenting) ([A] requirement of written reasons [for keeping inmates in segregation] would [not] impose an undue burden on prison officials). Ironically, the Court's shortsighted approach will likely do more to undermine other correctional goals with which the Court purports to be concerned than would respondent's approach. According to the Court, prison officials must come to court, many months or years after a disciplinary hearing, to state their reason for refusing to call witnesses. . . . Ante, at 492. The burdens of discovery and cross-examination could well be part of that litigation process. [18] In contrast, under respondent's approach, once a contemporaneous record was prepared, judicial review would normally be limited to review of that record. Cf. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). Thus, whatever the proper bearing of other correctional goals on the inmate's constitutional right to call witnesses, reliance on those goals to hold that prison officials must explain their refusal to hear witnesses in court, rather than in the record, is simply misplaced.",Other Correctional Goals
+731,110718,2,1,"PURPA's Titles I and III, which relate to regulatory policies for electricity and gas utilities, respectively, are administered (with minor exceptions) by the Secretary of Energy. These provisions are designed to encourage the adoption of certain retail regulatory practices. The Titles share three goals: (1) to encourage conservation of energy supplied by. . . utilities; (2) to encourage the optimization of the efficiency of use of facilities and resources by utilities; and (3) to encourage equitable rates to . . . consumers. §§ 101 and 301, 92 Stat. 3120 and 3149, 16 U. S. C. § 2611 (1976 ed., Supp. IV), 15 U. S. C. § 3201 (1976 ed., Supp. IV). [3] To achieve these goals, Titles I and III direct state utility regulatory commissions and nonregulated utilities to consider the adoption and implementation of specific rate design and regulatory standards. Section 111(d) of the Act, 16 U. S. C. § 2621(d), requires each state regulatory authority and nonregulated utility to consider the use of six different approaches to structuring rates: (1) promulgation, for each class of electricity consumers, of rates that, to the maximum extent practicable, would reflect the costs of . . . service to such class; (2) elimination of declining block rates; [4] (3) adoption of time-of-day rates; [5] (4) promulgation of seasonal rates; [6] (5) adoption of interruptible rates; [7] and (6) use of load management techniques. [8] The Act directed each state authority and nonregulated utility to consider these factors not later than two years after PURPA's enactment, that is, by November 8, 1980, and provided that the authority or utility by November 8, 1981, was to have made a decision whether to adopt the standards. § 2622(b). The statute does not provide penalties for failure to meet these deadlines; the state authority or nonregulated utility is merely directed to consider the standards at the first rate proceeding initiated by the authority after November 9, 1980. § 2622(c). Section 113 of PURPA, 16 U. S. C. § 2623, requires each state regulatory authority and nonregulated utility to consider the adoption of a second set of standards relating to the terms and conditions of electricity service: (1) prohibition of master-metering in new buildings; [9] (2) restrictions on the use of automatic adjustment clauses; [10] (3) disclosure to consumers of information regarding rate schedules; (4) promulgation of procedural requirements relating to termination of service; and (5) prohibition of the recovery of advertising costs from consumers. Similarly, § 303, 15 U. S. C. § 3203, requires consideration of the last two standards — procedures for termination of service and the nonrecovery of advertising costs — for natural gas utilities. A decision as to the standards contained in §§ 113 and 303 was to have been made by November 1980, although, again, no penalty was provided by the statute for failure to meet the deadline. Finally, § 114 of the Act, 16 U. S. C. § 2624, directs each state authority and nonregulated utility to consider promulgation of lifeline rates — that is, lower rates for service that meets the essential needs of residential consumers — if such rates have not been adopted by November 1980. Titles I and III also prescribe certain procedures to be followed by the state regulatory authority and the nonregulated utility when considering the proposed standards. Each standard is to be examined at a public hearing after notice, and a written statement of reasons must be made available to the public if the standards are not adopted. 16 U. S. C. §§ 2621(b) and (c)(2), and §§ 2623(a) and (c); 15 U. S. C. §§ 3203(a) and (c). Any person may bring an action in state court to enforce the obligation to hold a hearing and make determinations on the PURPA standards. 16 U. S. C. § 2633(c)(1); 15 U. S. C. § 3207(b)(1). The Secretary of Energy, any affected utility, and any consumer served by an affected utility is given the right to intervene and participate in any rate-related proceeding considering the Title I standards. 16 U. S. C. § 2631(a). Under Title III, the Secretary alone has the right to intervene. 15 U. S. C. § 3205. Any person (including the Secretary) who intervenes or otherwise participates in the proceeding may obtain review in state court of any administrative determination concerning the Title I standards, 16 U. S. C. § 2633 (c)(1), and the Secretary has the right to participate as an amicus in any Title III judicial review proceeding initiated by another. 15 U. S. C. § 3207(b)(2). The right to intervene is enforceable against the state regulatory authority by an action in federal court. 16 U. S. C. § 2633(b); 15 U. S. C. § 3207(a)(2). Titles I and III also set forth certain reporting requirements. Within one year of PURPA's enactment, and annually thereafter for 10 years, each state regulatory authority and nonregulated utility is to report to the Secretary respecting its consideration of the standards established. 16 U. S. C. § 2626(a); 15 U. S. C. § 3209(a). The Secretary, in turn, is to submit a summary and analysis of these reports to Congress. 16 U. S. C. § 2626(b); 15 U. S. C. § 3209(b). Electricity utilities also are required to collect information concerning their service costs. 16 U. S. C. § 2643. This information is to be filed periodically with appellant Federal Energy Regulatory Commission (FERC) and with appropriate state regulatory agencies, and is to be made available to the public. Title III requires the Secretary, in consultation with FERC, state regulatory authorities, gas utilities, and gas consumers, to submit a report to Congress on gas utility rate design. 15 U. S. C. § 3206. Despite the extent and detail of the federal proposals, however, no state authority or nonregulated utility is required to adopt or implement the specified rate design or regulatory standards. Thus, 16 U. S. C. §§ 2621(a) and 2623(a) and 15 U. S. C. § 3203(a) all provide: Nothing in this subsection prohibits any State regulatory authority or nonregulated . . . utility from making any determination that it is not appropriate to implement [or adopt] any such standard, pursuant to its authority under otherwise applicable State law. Similarly, 16 U. S. C. § 2627(b) and 15 U. S. C. § 3208 make it clear that any state regulatory authority or nonregulated utility may adopt regulations or rates that are different from any standard established by this [subchapter or] chapter.",Titles I and III
+732,110718,1,4,"Unlike the Commerce Clause question, the Tenth Amendment issue presented here is somewhat novel. This case obviously is related to National League of Cities v. Usery, 426 U. S. 833 (1976), insofar as both concern principles of state sovereignty. But there is a significant difference as well. National League of Cities, like Fry v. United States, 421 U. S. 542 (1975), presented a problem the Court often confronts: the extent to which state sovereignty shields the States from generally applicable federal regulations. In PURPA, in contrast, the Federal Government attempts to use state regulatory machinery to advance federal goals. To an extent, this presents an issue of first impression. PURPA, for all its complexity, contains essentially three requirements: (1) § 210 has the States enforce standards promulgated by FERC; (2) Titles I and III direct the States to consider specified ratemaking standards; and (3) those Titles impose certain procedures on state commissions. We consider these three requirements in turn: A. Section 210. On its face, this appears to be the most intrusive of PURPA's provisions. The question of its constitutionality, however, is the easiest to resolve. Insofar as § 210 authorizes FERC to exempt qualified power facilities from State laws and regulations, it does nothing more than pre-empt conflicting state enactments in the traditional way. Clearly, Congress can pre-empt the States completely in the regulation of retail sales by electricity and gas utilities and in the regulation of transactions between such utilities and cogenerators. Cf. Southern Pacific Co. v. Arizona, 325 U. S. 761, 769 (1945). The propriety of this type of regulation — so long as it is a valid exercise of the commerce power — was made clear in National League of Cities, and was reaffirmed in Hodel v. Virginia Surface Mining & Recl. Assn .: the Federal Government may displace state regulation even though this serves to curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important. 452 U. S., at 290. Section 210's requirement that each State regulatory authority shall, after notice and opportunity for public hearing, implement such rule (or revised rule) for each electric utility for which it has ratemaking authority, 16 U. S. C. § 824a-3(f)(1) (emphasis added), is more troublesome. The statute's substantive provisions require electricity utilities to purchase electricity from, and to sell it to, qualifying co-generator and small power production facilities. § 824a-3(a). Yet FERC has declared that state commissions may implement this by, among other things, an undertaking to resolve disputes between qualifying facilities and electric utilities arising under [PURPA]. 18 CFR § 292.401(a) (1980). In essence, then, the statute and the implementing regulations simply require the Mississippi authorities to adjudicate disputes arising under the statute. Dispute resolution of this kind is the very type of activity customarily engaged in by the Mississippi Public Service Commission. See, e. g., Miss. Code Ann. §§ 77-1-31, 77-3-5, 77-3-13(3), 77-3-21, 77-3-405 (1973). Testa v. Katt, 330 U. S. 386 (1947), is instructive and controlling on this point. There, the Emergency Price Control Act, 56 Stat. 34, as amended, created a treble-damages remedy, and gave jurisdiction over claims under the Act to state as well as federal courts. The courts of Rhode Island refused to entertain such claims, although they heard analogous state causes of action. This Court upheld the federal program. It observed that state courts have a unique role in enforcing the body of federal law, and that the Rhode Island courts had jurisdiction adequate and appropriate under established local law to adjudicate this action. 330 U. S., at 394. Thus the state courts were directed to heed the constitutional command that the policy of the federal Act is the prevailing policy in every state, id., at 393,  `and should be respected accordingly in the courts of the State.'  Id., at 392, quoting Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 57 (1912). So it is here. The Mississippi Commission has jurisdiction to entertain claims analogous to those granted by PURPA, and it can satisfy § 210's requirements simply by opening its doors to claimants. That the Commission has administrative as well as judicial duties is of no significance. [24] Any other conclusion would allow the States to disregard both the pre-eminent position held by federal law throughout the Nation, cf. Martin v. Hunter's Lessee, 1 Wheat. 304, 340-341 (1816), and the congressional determination that the federal rights granted by PURPA can appropriately be enforced through state adjudicatory machinery. Such an approach, Testa emphasized, flies in the face of the fact that the States of the Union constitute a nation, and disregards the purpose and effect of Article VI of the Constitution. 330 U. S., at 389. B. Mandatory Consideration of Standards. We acknowledge that the authority to make . . . fundamental . . . decisions is perhaps the quintessential attribute of sovereignty. See National League of Cities v. Usery, 426 U. S., at 851. Indeed, having the power to make decisions and to set policy is what gives the State its sovereign nature. See Bates v. State Bar of Arizona, 433 U. S. 350, 360 (1977) (State Supreme Court speaks as sovereign because it is the ultimate body wielding the State's power over the practice of law). It would follow that the ability of a state legislative (or, as here, administrative) body — which makes decisions and sets policy for the State as a whole — to consider and promulgate regulations of its choosing must be central to a State's role in the federal system. Indeed, the 19th-century view, expressed in a well-known slavery case, was that Congress has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it. Kentucky v. Dennison, 24 How. 66, 107 (1861). Recent cases, however, demonstrate that this rigid and isolated statement from Kentucky v. Dennison — which suggests that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns — is not representative of the law today. [25] While this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations, cf. EPA v. Brown, 431 U. S. 99 (1977), there are instances where the Court has upheld federal statutory structures that in effect directed state decisionmakers to take or to refrain from taking certain actions. In Fry v. United States, 421 U. S. 542 (1975), for example, state executives were held restricted, with respect to state employees, to the wage and salary limitations established by the Economic Stabilization Act of 1970. Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979), acknowledged a federal court's power to enforce a treaty by compelling a state agency to prepare certain rules even if state law withholds from [it] the power to do so. Id., at 695. [26] And certainly Testa v. Katt, supra , by declaring that the policy of the federal Act is the prevailing policy in every state, 330 U. S., at 393, reveals that the Federal Government has some power to enlist a branch of state government — there the judiciary — to further federal ends. [27] In doing so, Testa clearly cut back on both the quoted language and the analysis of the Dennison case of the preceding century. [28] Whatever all this may forebode for the future, or for the scope of federal authority in the event of a crisis of national proportions, it plainly is not necessary for the Court in this case to make a definitive choice between competing views of federal power to compel state regulatory activity. Titles I and III of PURPA require only consideration of federal standards. And if a State has no utilities commission, or simply stops regulating in the field, it need not even entertain the federal proposals. As we have noted, the commerce power permits Congress to pre-empt the States entirely in the regulation of private utilities. In a sense, then, this case is only one step beyond Hodel v. Virginia Surface Mining & Recl. Assn., supra . There, the Federal Government could have pre-empted all surface mining regulations; instead, it allowed the States to enter the field if they promulgated regulations consistent with federal standards. In the Court's view, this raised no Tenth Amendment problem: We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role. 452 U. S., at 290. [T]here can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a regulatory program. Id., at 288. Similarly here, Congress could have pre-empted the field, at least insofar as private rather than state activity is concerned; PURPA should not be invalid simply because, out of deference to state authority, Congress adopted a less intrusive scheme and allowed the States to continue regulating in the area on the condition that they consider the suggested federal standards. [29] While the condition here is affirmative in nature — that is, it directs the States to entertain proposals — nothing in this Court's cases suggests that the nature of the condition makes it a constitutionally improper one. There is nothing in PURPA directly compelling the States to enact a legislative program. In short, because the two challenged Titles simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals, they do not threaten the States' separate and independent existence, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Coyle v. Oklahoma, 221 U. S. 559, 580 (1911), and do not impair the ability of the States to function effectively in a federal system. Fry v. United States, 421 U. S., at 547, n. 7; National League of Cities v. Usery, 426 U. S., at 852. To the contrary, they offer the States a vehicle for remaining active in an area of overriding concern. We recognize, of course, that the choice put to the States — that of either abandoning regulation of the field altogether or considering the federal standards — may be a difficult one. And that is particularly true when Congress, as is the case here, has failed to provide an alternative regulatory mechanism to police the area in the event of state default. Yet in other contexts the Court has recognized that valid federal enactments may have an effect on state policy — and may, indeed, be designed to induce state action in areas that otherwise would be beyond Congress' regulatory authority. Thus in Oklahoma v. CSC, 330 U. S. 127 (1947), the Court upheld Congress' power to attach conditions to grants-in-aid received by the States, although the condition under attack involved an activity that the United States is not concerned with, and has no power to regulate. Id., at 143. The Tenth Amendment, the Court declared, has been consistently construed `as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end,'  ibid., quoting United States v. Darby, 312 U. S. 100, 124 (1941) — the end there being the disbursement of federal funds. Thus it cannot be constitutionally determinative that the federal regulation is likely to move the States to act in a given way, or even to coerc[e] the States into assuming a regulatory role by affecting their freedom to make decisions in areas of `integral governmental functions.'  Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 289. Equally as important, it has always been the law that state legislative and judicial decisionmakers must give preclusive effect to federal enactments concerning nongovernmental activity, no matter what the strength of the competing local interests. See Martin v. Hunter's Lessee, 1 Wheat., at 340-341. This requirement follows from the nature of governmental regulation of private activity. [I]ndividual businesses necessarily [are] subject to the dual sovereignty of the government of the Nation and of the State in which they reside, National League of Cities v. Usery, 426 U. S., at 845; when regulations promulgated by the sovereigns conflict, federal law necessarily controls. This is true though Congress exercises its authority in a manner that displaces the States' exercise of their police powers, Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 291, or in such a way as to curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, id., at 290 — or, to put it still more plainly, in a manner that is extraordinarily intrusive. Id., at 305 (POWELL, J., concurring). Thus it may be unlikely that the States will or easily can abandon regulation of public utilities to avoid PURPA's requirements. But this does not change the constitutional analysis: as in Hodel v. Virginia Surface Mining & Recl. Assn ., [t]he most that can be said is that the . . . Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. Id., at 289. [30] To be sure, PURPA gives virtually any affected person the right to compel consideration of the statutory standards through judicial action. We fail to see, however, that this places any particularly onerous burden on the State. Mississippi by statute already grants  [a]ny interested person . . . the right to petition the [Public Service] [C]ommission for issuance, amendment or repeal of a rule or regulation, Miss. Code Ann. § 77-3-45 (1973) (emphasis added), and provides that  any party aggrieved by any final finding, order or judgment of the commission shall have the right, regardless of the amount involved, of appeal in chancery court. Miss. Code Ann. § 77-3-67(1) (Supp. 1981) (emphasis added). Indeed, [a]ny person whose rights may be directly affected by said appeal may appear and become a party . . . . Ibid. And [a]ppeals in accordance with law may be had to the supreme court of the State of Mississippi from any final judgment of the chancery court. Miss. Code Ann. § 77-3-71 (1973). It is hardly clear on the statute's face, then, that PURPA's standing and appeal provisions grant any rights beyond those presently accorded by Mississippi law, and appellees point to no specific provision of the Act expanding on the State's existing, liberal approach to public participation in ratemaking. [31] In this light, we again find the principle of Testa v. Katt, supra , controlling: the State is asked only to make its administrative tribunals available for the vindication of federal as well as state-created rights. PURPA, of course, establishes as federal policy the requirement that state commissions consider various ratemaking standards, and it gives individuals a right to enforce that policy; once it is established that the requirement is constitutionally supportable, the obligation of states to enforce these federal laws is not lessened by reason of the form in which they are cast or the remedy which they provide. Testa v. Katt, 330 U. S., at 391. See Second Employers' Liability Cases, 223 U. S. 1, 57 (1912). In short, Titles I and III do not involve the compelled exercise of Mississippi's sovereign powers. And, equally important, they do not set a mandatory agenda to be considered in all events by state legislative or administrative decisionmakers. As we read them, Titles I and III simply establish requirements for continued state activity in an otherwise pre-emptible field. [32] Whatever the constitutional problems associated with more intrusive federal programs, the mandatory consideration provisions of Titles I and III must be validated under the principle of Hodel v. Virginia Surface Mining & Recl. Assn . [33] C. The Procedural Requirements. Titles I and III also require state commissions to follow certain notice and comment procedures when acting on the proposed federal standards. In a way, these appear more intrusive than the consideration provisions; while the latter are essentially hortatory, the procedural provisions obviously are prescriptive. Appellants and amici Maryland et al. argue that the procedural requirements simply establish minimum due process standards, something Mississippi appears already to provide, [34] and therefore may be upheld as an exercise of Congress' Fourteenth Amendment powers. We need not go that far, however, for we uphold the procedural requirements under the same analysis employed above in connection with the consideration provisions. If Congress can require a state administrative body to consider proposed regulations as a condition to its continued involvement in a pre-emptible field — and we hold today that it can — there is nothing unconstitutional about Congress' requiring certain procedural minima as that body goes about undertaking its tasks. The procedural requirements obviously do not compel the exercise of the State's sovereign powers, and do not purport to set standards to be followed in all areas of the state commission's endeavors. The judgment of the District Court is reversed. It is so ordered.",The Tenth Amendment
+733,110741,2,1,"In 1972 petitioners Victor and Frances Diedrich made gifts of approximately 85,000 shares of stock to their three children, using both a direct transfer and a trust arrangement. The gifts were subject to a condition that the donees pay the resulting federal and state gift taxes. There is no dispute concerning the amount of the gift tax paid by the donees. The donors' basis in the transferred stock was $51,073; the gift tax paid in 1972 by the donees was $62,992. Petitioners did not include as income on their 1972 federal income tax returns any portion of the gift tax paid by the donees. After an audit the Commissioner of Internal Revenue determined that petitioners had realized income to the extent that the gift tax owed by petitioners but paid by the donees exceeded the donors' basis in the property. Accordingly, petitioners' taxable income for 1972 was increased by $5,959. [1] Petitioners filed a petition in the United States Tax Court for redetermination of the deficiencies. The Tax Court held for the taxpayers, concluding that no income had been realized. 39 TCM 433 (1979).",Diedrich v. Commissioner of Internal Revenue
+734,110933,2,1,"[G]uided by considerations of justice, McNabb v. United States, 318 U. S. 332, 341 (1943), and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United States, 350 U. S. 214, 217 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v. United States, 364 U. S. 206, 222 (1960); and finally, as a remedy designed to deter illegal conduct, United States v. Payner, 447 U. S. 727, 735-736, n. 8 (1980). The goals that are implicated by supervisory powers are not, however, significant in the context of this case if, as the Court of Appeals plainly implied, the errors alleged are harmless. Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error. Further, in this context, the integrity of the process carries less weight, for it is the essence of the harmless-error doctrine that a judgment may stand only when there is no reasonable possibility that the [practice] complained of might have contributed to the conviction. Fahy v. Connecticut, 375 U. S. 85, 86-87 (1963). Finally, deterrence is an inappropriate basis for reversal where, as here, the prosecutor's remark is at most an attenuated violation of Griffin [4] and where means more narrowly tailored to deter objectionable prosecutorial conduct are available. [5] To the extent that the values protected by supervisory authority are at issue here, these powers may not be exercised in a vacuum. Rather, reversals of convictions under the court's supervisory power must be approached with some caution, Payner, 447 U. S., at 734, and with a view toward balancing the interests involved, id., at 735-736, and n. 8; Elkins, supra, at 216; United States v. Caceres, 440 U. S. 741, 755 (1979); cf. Nardone v. United States, 308 U. S. 338, 340 (1939). As we shall see below, the Court of Appeals failed in this case to give appropriate — if, indeed, any — weight to these relevant interests. It did not consider the trauma the victims of these particularly heinous crimes would experience in a new trial, forcing them to relive harrowing experiences now long past, or the practical problems of retrying these sensitive issues more than four years after the events. See Morris v. Slappy, ante, at 14-15. The conclusion is inescapable that the Court of Appeals focused exclusively on its concern that the prosecutors within its jurisdiction were indifferent to the frequent admonitions of the court. The court appears to have decided to deter future similar comments by the drastic step of reversal of these convictions. But the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.",Supervisory Power
+735,110933,2,2,"Since the Court of Appeals focused its attention on Griffin rather than Chapman, an appropriate starting point is to recall the sequence of these two cases. Griffin was decided first. In that case, a California prosecutor, in accordance with a provision of the California Constitution, commented to the jury on a defendant's failure to provide evidence on matters that only he could have been expected to deny or explain. In reliance on Wilson v. United States, 149 U. S. 60 (1893), the Griffin Court interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right. Accordingly, the Court held that the constitutional provision permitting prosecutorial comment on the failure of the accused to testify violated the Fifth Amendment. Soon after Griffin, however, this Court decided Chapman v. California , which involved prosecutorial comment on the defendant's failure to testify in a trial that had been conducted in California before Griffin was decided. The question was whether a Griffin error was per se error requiring automatic reversal or whether the conviction could be affirmed if the reviewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule. After examining the harmless-error rules of the 50 States along with the federal analog, 28 U. S. C. § 2111, the Chapman Court stated: All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction. 386 U. S., at 22 (emphasis added). In holding that the harmless-error rule governs even constitutional violations under some circumstances, [6] the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v. United States, 411 U. S. 223, 231-232 (1973), citing Bruton v. United States, 391 U. S. 123, 135 (1968); cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Traynor of the Supreme Court of California, that when courts fashion rules whose violations mandate automatic reversals, they retrea[t] from their responsibility, becoming instead `impregnable citadels of technicality.'  R. Traynor, The Riddle of Harmless Error 14 (1970) (quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A. B. A. J. 217, 222 (1925)). Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e. g., Brown, supra, at 230-232; Harrington v. California, 395 U. S. 250 (1969); Milton v. Wainwright, 407 U. S. 371 (1972). The goal, as Chief Justice Traynor has noted, is to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error. Traynor, supra, at 81. Here, the Court of Appeals, while making passing reference to the harmless-error doctrine, did not apply it. Its analysis failed to strike the balance between disciplining the prosecutor on the one hand, and the interest in the prompt administration of justice and the interests of the victims on the other. [7]",Harmless Error
+736,103099,1,1,"(f) Giving effect to their contracts with the International Brotherhood of Electrical Workers. It is agreed that the fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife. This is to be accomplished by contracts with labor organizations, reached through collective bargaining. The labor organizations in turn are to be created through the self-organization of workers, free from interference, restraint or coercion of the employer. [1] The forbidden interference is an unfair labor practice, which the Board, exclusively, is empowered to prevent by such negative and affirmative action as will effectuate the policies of the act. [2] To interpret the Act to mean that the Board is without power to nullify advantages obtained by the Edison companies through contracts with unions, partly developed by the unlawful interference of the Edison companies with self-organization, is to withdraw from the Board the specific authority granted by the Act to take affirmative action to protect the workers' right of self-organization, the basic privilege guaranteed by the Act. Freedom from employer domination flows from freedom in self-organization. It is assumed that the terms of these contracts in all respects are consistent with the requirements of the National Labor Relations Act and are in themselves, considered apart from the actions of the Edison companies in securing their execution, advantageous in preserving industrial harmony. The Board found that the Consolidated Edison Company and its affiliates, the respondents before the Board, deliberately embarked upon an unlawful course of conduct, as described above, which enabled them to impose the I.B.E.W. upon their employees as their bargaining representative and at the same time discourage and weaken the United which they opposed. From the outset the respondents contemplated the execution of contracts with the I.B.E.W. locals which would consummate and perpetuate their plainly illegal course of conduct in interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed to them under section 7 of the Act. It is clear that the granting of the contracts to the I.B.E.W. by the respondents was a part of the respondents' unlawful course of conduct and as such constituted an interference with the rights of their employees to self-organization. The contracts were executed under such circumstances that they are invalid, notwithstanding that they are in express terms applicable only to members of the I.B.E.W. locals. If the contracts are susceptible of the construction placed upon them by the respondents, namely, that they were exclusive collective bargaining agreements, then, a fortiori, they are invalid. [3] The evidence upon which this finding is based is summarized in detail in 4 N.L.R.B., pages 83 to 94. It shows a consistent effort on the part of the officers and foremen of the Edison Company and its affiliates, as well as other employees of the Edison companies — formerly officers in the recently disestablished Employees' Representation Plans, actually company unions — to further the development of the I.B.E.W. unions by recognition, contracts for bargaining, openly expressed approval, establishment of locals, and by permitting solicitation of employees on the time and premises of the Edison companies. By the Wagner Act employees have the right to self-organization. It is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of that right. [4] The Board concluded that the contracts with the I.B.E.W. unions were a part of a systematic violation by the Edison companies of the workers' right to self-organization. This determination set in motion the authority of the Board to issue an order to cease and desist from the unfair labor practice and to take such affirmative action . . . as will effectuate the policies of this Act. The evidence was clearly sufficient to support the conclusion of the Board that the Edison companies entered into the contracts as an integral part of a plan for coercion of and interference with the self-organization of their employees. This justified the Board's prohibition against giving effect to the contracts. The affirmative action must be connected with the unfair practices but there could be no question as to the materiality of the contracts. As this Court, only recently, said, as to the purpose of the Congress in enacting this Act: It had before it the Railway Clerks case which had emphasized the importance of union recognition in securing collective bargaining, Report of the Senate Committee on Education and Labor, S. Rep. 573, 74th Cong., 1st Sess., p. 17, and there were then available data showing that once an employer has conferred recognition on a particular organization it has a marked advantage over any other in securing the adherence of employees, and hence in preventing the recognition of any other. [5] To this, it is answered that the extent of the coercion is left to mere conjecture; that it would be an extravagant assumption to say that none of the 30,000 members joined voluntarily; and that the employers' practices, which were complained of, could be stopped without imperiling the interests of those who for all that appears had exercised freely their right of choice. [6] On the question whether or not the Edison companies' activities as to these contracts were a part of a definite plan to interfere with the right of self-organization, these answers are immaterial. It is suggested that the problem of the contracts should be approached with three cardinal considerations in mind: (1) that one contracting party is an independently established labor organization, free of domination by the employer; (2) that the contracts grant valuable collective bargaining rights; and (3) that they contain provisions for desirable working privileges. Such considerations should affect discretion in shaping the proper remedy. They are negligible in determining the power of the Board. They would, if given weight, permit paternalism to be substituted for self-organization. The findings of the Board, based on substantial evidence, are conclusive. [7] There was evidence of coercion and interference, and the Board did determine that the policies of the Act would be effectuated by requiring the companies to cease giving effect to these contracts. The petitioners, however, aside from the merits, raise procedural objections. It is contended that before the Board could have authority to order the Edison companies to cease and desist from giving effect to their contracts with the unions, it was necessary that the unions as well as the Edison companies should have legal notice or should appear; that the unions were indispensable parties. This Court has held to the contrary in Labor Board v. Pennsylvania Greyhound Lines, 303 U.S. 261. This case determined that where an employer has created and fostered a labor organization of employees, thus interfering with their right to self-organization, the employer can be required without notice to the organization, to withdraw all recognition of such organization as the representative of its employees. It is said that this case is not apposite, as there no question of contract between employer and employee was involved. The Board had found upon evidence that the employer had created and fostered the labor organization in question and dominated its administration in violation of § 8 (2). [8] In the instant case it was found that no such domination existed. In the Greyhound case, the Board found not only domination under § 8 (2) but also, as in this case, an unfair labor practice under § 8 (1). The company's violation of § 8 (1) was predicated on its interference with self-organization. [9] In the Greyhound case it was said that the organization was not entitled to notice and hearing because the order did not run against the Association. [10] Here the unions are affected by the action on the contracts, exactly as the labor organization in the Greyhound case was affected by the order to withdraw recognition. It would seem immaterial whether those contracts were violative of one or both or all the prohibited unfair labor practices. A further procedural objection is found in the failure of the complaint, or any of its amendments, to seek specifically a cease and desist order against continued operation under the contracts. The companies were charged with allowing organization meetings on the company time and on company property, permitting solicitation of membership during company time, and paying overtime allowances to those engaged in soliciting or coercing workers to join the contracting unions. The complaint said that similar aid was not extended to a competing union and that office assistance was given to the effort to get members for the contracting unions. These charges made it obvious that the contracts were obtained from the unions which were improperly aided by the Edison companies in violation of the prohibitions against interference with self-organization. Contracts so obtained were necessarily at issue in an examination of the acts in question. Certainly the Edison companies and the contracting unions could have been allowed on a proper showing a further hearing on the question of the companies' continuing recognition of the contracts. By § 10(f) the Edison companies and the unions could obtain a review of the Board's order. In that hearing either or both could show to the court, § 10(e), that additional evidence as to the contracts was material and that it had not been presented because the aggrieved parties had not understood that the contracts were subject to a cease and desist order, or had not known of the proceeding. The court could order the Board to take the additional evidence. This simple practice was not followed. Although all parties were before the lower court on the review, the petitioners chose to rely on the impotency of the Board to enter an order affecting the contracts. In these circumstances the provision of the order requiring the Edison companies to cease from giving effect to their contracts with the contracting unions is proper. This order prevents the Edison companies from reaping an advantage from those acts of interference found illegal by the Board. MR. JUSTICE BLACK concurs in this opinion.",Cease and desist from: .....
+737,106788,1,1,"Section 1404 (a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. [4] Thus, as the Court recognized in Continental Grain Co. v. Barge FBL-585, 364 U. S. 19, 26, 27, the purpose of the section is to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . . To this end it empowers a district court to transfer any civil action [5] to another district court if the transfer is warranted by the convenience of parties and witnesses and promotes the interest of justice. This transfer power is, however, expressly limited by the final clause of § 1404 (a) restricting transfer to those federal districts in which the action might have been brought. Although in the present case the plaintiffs were qualified to bring suit as personal representatives under Pennsylvania law (the law of the State of the transferor federal court), the Court of Appeals ruled that the defendants' transfer motion must be denied because at the time the suits were brought in Pennsylvania (the transferor forum) the complainants had not obtained the appointments requisite to initiate such actions in Massachusetts (the transferee forum). At the outset, therefore, we must consider whether the incapacity of the plaintiffs at the time they commenced their actions in the transferor forum to sue under the state law of the transferee forum renders the latter forum impermissible under the might-have-been-brought limitation. There is no question concerning the propriety either of venue or of jurisdiction in the District of Massachusetts, the proposed transferee forum. [6] The Court of Appeals conceded that it was quite likely that the plaintiffs could have obtained ancillary appointment in Massachusetts but held this legally irrelevant. 309 F. 2d, at 957-958. In concluding that the transfer could not be granted, the Court of Appeals relied upon Hoffman v. Blaski, 363 U. S. 335, as establishing that unless the plaintiff had an unqualified right to bring suit in the transferee forum at the time he filed his original complaint, transfer to that district is not authorized by § 1404 (a). 309 F. 2d, at 957. (Emphasis in original.) The court found the analogy to Hoffman particularly persuasive because it could perceive no basis in either logic or policy for making any distinction between the absence of venue in the transferee forum and a prospective plaintiff's lack of capacity to sue there. Ibid. In addition, the court held that the transfer must be denied because in actions by personal representatives Rule 17 (b), Fed.R.Civ.P., requires the district court to refer to the law of the state in which it sits to determine capacity to use. [7] Id., at 958. The defendants contend that the concluding phrase of § 1404 (a)—where it might have been brought—refers to those districts in which Congress has provided by its venue statutes that the action may be brought. Applying this criterion, the defendants argue that the posture of the case under state law is irrelevant. They contend that Hoffman v. Blaski, supra , did not rule that the limitations of state law were relevant to determining where the action might have been brought but ruled only that the requirement prohibited transfer where the proposed transferee forum lacked both venue of the action and power to command jurisdiction over the defendants when the suits were originally instituted. The defendants contend further that the decision below is contrary to the policy underlying Hoffman, since this decision effectively enables a plaintiff, simply by failing to proceed in other potential forums and qualify as a personal representative, to restrict and frustrate efforts to have the action transferred to a federal forum which would be far more convenient and appropriate. Finally, with regard to the conclusion that Rule 17 (b) precludes transfer, the defendants argue that under § 1404 (a) the effect of the Rule, like the existence of different state laws in the transferee forum, is not relevant to a determination of where, as indicated by federal venue laws, the action might have been brought. The defendants conclude that the effect of transfer upon potential state-law defenses and upon the state law applied under Rule 17 (b) should instead be considered and assessed with reference to the criterion that the transfer be in the interest of justice. See infra, pp. 624-626, 640-643. The plaintiffs respond emphasizing that they are Pennsylvania fiduciaries representing the estates of Pennsylvania decedents. They were not and are not qualified to bring these or related actions in Massachusetts and their lack of capacity would, under Massachusetts law, constitute an absolute defense. The plaintiffs contend that Hoffman v. Blaski established that transfer must be denied unless, at the time the action was brought, the complainant had an independent right to institute that action in the transferee forum regardless of the fact that the defendant in seeking transfer might expressly or implicitly agree to venue and jurisdiction in the transferee forum and waive defenses that would have been available only under the law of the transferee State. In addition, the plaintiffs argue, even if the limiting phrase where-it-might-have-been-brought relates only to federal venue laws, Rule 17 (b) expressly provides that the capacity of a fiduciary to sue in a United States district court shall be determined by the law of the state in which the district court is held. The plaintiffs understand the language of the Rule to refer to the law of the State in which the transferee court is held rather than to the law of the State of the transferor court. They conclude that since they were not qualified to sue in Massachusetts [the State in which the transferee court would be held], they were not qualified to sue in the United States district court in Massachusetts and the District of Massachusetts was not a district in which these actions `might have been brought.'  A. In Hoffman v. Blaski this Court first considered the nature of the limitation imposed by the words where it might have been brought. The plaintiff opposed the defendant's motion to transfer on the ground that the proposed transferee forum lacked both venue over the action and ability to command jurisdiction over the . . . defendant. [8] 363 U. S., at 337. The question, as stated by the Court, was whether a District Court, in which a civil action has been properly brought, is empowered by § 1404 (a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it. Id., at 336. (Emphasis in original.) The defendant emphasized that venue, like jurisdiction over the person, may be waived. Id., at 343. This Court held that, despite the defendant's waivers or consent, a forum which had been improper for both venue and service of process was not a forum where the action might have been brought. [9] In the present case the Court of Appeals concluded that transfer could not be granted because here, as in Hoffman v. Blaski , the plaintiffs did not have an independent or unqualified right to bring the actions in the transferee forum. [10] The propriety of this analogy to Hoffman turns, however, on the validity of the assumption that the where-it-might-have-been-brought clause refers not only to federal venue statutes but also to the laws applied in the State of the transferee forum. It must be noted that the instant case, unlike Hoffman, involves a motion to transfer to a district in which both venue and jurisdiction are proper. This difference plainly demonstrates that the Court of Appeals extended the Hoffman decision and increased the restrictions on transfers to convenient federal forums. The issue here is not that presented in Hoffman but instead is whether the limiting words of § 1404 (a) prevent a change of venue within the federal system because, under the law of the State of the transferee forum, the plaintiff was not qualified to sue or might otherwise be frustrated or prejudiced in pursuing his action. We cannot agree that the final clause of § 1404 (a) was intended to restrict the availability of convenient federal forums by referring to state-law rules, such as those concerning capacity to sue, which would have applied if the action had originally been instituted in the transferee federal court. Several considerations compel this conclusion. First, if the concluding clause is considered as an independent entity and perused for its plain meaning, it seems clear that the most obvious referents of the words are found in their immediate statutory context. [11] Section 1404 (a) was enacted as part of Chapter 87 of Part IV of the Judicial Code of 1948. That Chapter is designated District Courts; Venue. The Chapter itself is in that Part of the Code dealing generally with Jurisdiction and Venue. In the immediate Chapter, which includes §§ 1391-1406, the phrase may be brought recurs at least 10 times [12] and the phrase may be prosecuted at least 8 times. [13] The statutory context is thus persuasive evidence that the might-have-been-brought language of § 1404 (a) plainly refers to the similar wording in the related federal statutes and not directly to the laws of the State of the transferee forum. Secondly, it should be asked whether the purposes of § 1404 (a) warrant a broad or generous construction of the limiting clause. The answer, we think, is quite evident. As MR. JUSTICE BLACK said, speaking for the Court in Continental Grain Co. v. Barge FBL-585, 364 U. S., at 26: The idea behind § 1404 (a) is that where a `civil action' to vindicate a wrong—however brought in a court—presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court. This remedial purpose— the individualized, case-by-case consideration of convenience and fairness—militates against restricting the number of permissible forums within the federal system. [14] There is no valid reason for reading the words where it might have been brought to narrow the range of permissible federal forums beyond those permitted by federal venue statutes which, after all, are generalized attempts to promote the same goals of convenience and fairness. Finally, in construing § 1404 (a) we should consider whether a suggested interpretation would discriminatorily enable parties opposed to transfer, by means of their won acts or omissions, to prevent a transfer otherwise proper and warranted by convenience and justice. In Continental Grain Co. v. Barge FBL-585, supra, the plaintiff, having joined in a single complaint both in rem and in personam damage claims, opposed transfer to a convenient forum on the ground that the in rem claim could not have been brought in the transferee forum. [15] In approving the transfer order, this Court observed that failure to adopt a common-sense approach . . . would practically scuttle the forum non conveniens statute so far as admiralty actions are concerned. All a plaintiff would need to do to escape from it entirely would be to bring his action against both the owner and the ship, as was done here. Id., at 24-25. The case at bar presents a similar situation. The Court of Appeals' decision would grant personal representatives bringing wrongful-death actions the power unilaterally to reduce the number of permissible federal forums simply by refraining from qualifying as representatives in States other than the one in which they wished to litigate. The extent of that power is graphically illustrated by the laws of the American jurisdictions, the vast majority of which require that, as a condition of qualifying to bring suit, a foreign executor or representative must obtain ancillary appointment or perform some preliminary act. [16] The possibilities thus suggested by the facts of the present case amply demonstrate that the limiting phrase of § 1404 (a) should be construed to prevent parties who are opposed to a change of venue from defeating a transfer which, but for their own deliberate acts or omissions, would be proper, convenient and just. The power to defeat a transfer to the convenient federal forum should derive from rights and privileges conferred by federal law and not from the deliberate conduct of a party favoring trial in an inconvenient forum. In summary, then, we hold that the words where it might have been brought must be construed with reference to the federal laws delimiting the districts in which such an action may be brought and not with reference to laws of the transferee State concerning the capacity of fiduciaries to bring suit. B. The Court of Appeals, in reversing the District Court, relied in part upon Rule 17 (b) of the Federal Rules of Civil Procedure. The relevant portion of the Rule provides that the capacity of personal representatives to sue or be sued shall be determined by the law of the state in which the district court is held. [17] In our view the where-it-might-have-been-brought clause does not refer to this Rule and the effect of the Rule, therefore, raises a separate question. This conclusion does not, however, establish that Rule 17 (b), if applied as interpreted by the Court of Appeals, would not preclude the requested transfer. The reliance placed on Rule 17 (b) necessarily assumes that its language—which is not free from ambiguity—requires the application of the law of the State of the transferee district court rather than that of the transferor district court. [18] On this assumption, the defendants in the present case, after a transfer to Massachusetts, would be entitled to raise the defense of incapacity under Massachusetts law and thereby defeat the actions. Thus a § 1404 (a) transfer might result in a prejudicial change in the applicable state law. This possibility makes it apparent, that, although Rule 17 (b) may be irrelevant to a determination of where an action might have been brought, the effect of the Rule may necessarily render a change of venue against the interest of justice. Although the Court of Appeals specifically relied on Rule 17 (b), in our opinion the underlying and fundamental question is whether, in a case such as the present, a change of venue within the federal system is to be accompanied by a change in the applicable state law. [19] Whenever the law of the transferee State significantly differs from that of the transferor State—whether that difference relates to capacity to sue, statutes of limitations, or substantive rules of liability—it becomes necessary to consider what bearing a change of venue, if accompanied by a change in state law, would have on the interest of justice. This fundamental question underlies the problem of the interpretation of the words of Rule 17 (b) and requires a determination of whether the existence of differing state laws would necessarily render a transfer against the interest of justice. In view of the facts of this case and their bearing on this basic question, we must consider first, insofar as is relevant, the relationship between a change of venue under § 1404 (a) and the applicable state law. II. THE INTEREST OF JUSTICE: EFFECT OF A CHANGE OF VENUE UPON APPLICABLE STATE LAW. A. The plaintiffs contend that the change of venue ordered by the District Court was necessarily precluded by the likelihood that it would be accompanied by a highly prejudicial change in the applicable state law. The prejudice alleged is not limited to that which might flow from the Massachusetts laws governing capacity to sue. Indeed, the plaintiffs emphasize the likelihood that the defendants' ultimate reason for seeking transfer is to move to a forum where recoveries for wrongful death are restricted to sharply limited punitive damages rather than compensation for the loss suffered. [20] It is argued that Pennsylvania choice-of-law rules would result in the application of laws substantially different from those that would be applied by courts sitting in Massachusetts. The District Court held, however, that transfer could be ordered regardless of the state laws and choice-of-law rules to be applied in the transferee forum and regardless of the possibility that the laws applicable in the transferor State would significantly differ from those applicable in the transferee State. This ruling assumed that transfer to a more convenient forum may be granted on a defendant's motion even though that transfer would seriously prejudice the plaintiffs legal claim. If this assumption is valid, the plaintiffs argue, transfer is necessarily precluded—regardless of convenience and other considerations—as against the interest of justice in dealing with plaintiffs who have either exercised the venue privilege conferred by federal statutes, or had their cases removed from state into federal court. If conflict of laws rules are laid aside, it is clear that Massachusetts (the State of the transferee court) and Pennsylvania (the State of the transferor court) have significantly different laws concerning recovery for wrongful death. The Massachusetts Death Act provides that one who negligently causes the death of another shall be liable in damages in the sum of not less than two thousand nor more than twenty thousand dollars, to be assessed with reference to the degree of his culpability. . . . Mass. Ann. Laws, c. 229, § 2 (Supp. 1961). By contrast, under Pennsylvania law the recovery of damages (1) is based upon the more common principle of compensation for losses rather than upon the degree of the tortfeasor's culpability and (2) is not limited to $20,000. [21] Some of the defendants urge, however, that these differences are irrelevant to the present case because Pennsylvania state courts, applying their own choice of law rules, would require that the Massachusetts Death Act be applied in its entirety, including its culpability principle and damage limitation. [22] It follows that a federal district court sitting in Pennsylvania, and referring, as is required by Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487, to Pennsylvania choice-of-law rules, would therefore be applying the same substantive rules as would a state or federal court in Massachusetts if the actions had been commenced there. This argument highlights the fact that the most convenient forum is frequently the place where the cause of action arose and that the conflict-of-laws rules of other States may often refer to the substantive rules of the more convenient forum. [23] The plaintiffs, however, point to the decision of the New York Court of Appeals in Kilberg v. Northeast Airlines, Inc., 9 N. Y. 2d 34, 211 N. Y. S. 2d 133, 172 N. E. 2d 526, and the decision of the Court of Appeals for the Second Circuit in Pearson v. Northeast Airlines, Inc., 309 F. 2d 553, cert. denied, 372 U. S. 912, as indicating that Pennsylvania, in light of its laws and policies, might not apply the culpability and damage limitation aspects of the Massachusetts statute. The District Court, in ordering that the actions be transferred, found it both undesirable and unnecessary to rule on the question of whether Pennsylvania courts would accept the right of action provided by the Massachusetts statute while at the same time denying enforcement of the Massachusetts measure of recovery. [24] 204 F. Supp., at 433-436. The District Court found it undesirable to resolve this question because the Pennsylvania courts had not yet considered it and because they would, in view of similar pending cases, soon have an opportunity to do so. The District Court, being of the opinion that the District of Massachusetts was in any event a more convenient place for trial, reasoned that the transfer should be granted forth-with and that the transferee court could proceed to the trial of the actions and postpone consideration of the Pennsylvania choice-of-law rule as to damages until a later time at which the Pennsylvania decisions might well have supplied useful guidance. Fundamentally, however, the transferring District Court assumed that the Pennsylvania choice of law rule was irrelevant because the transfer would be permissible and justified even if accompanied by a significant change of law. The possibilities suggested by the plaintiffs' argument illustrate the difficulties that would arise if a change of venue, granted at the motion of a defendant, were to result in a change of law. Although in the present case the contentions concern rules relating to capacity to sue and damages, in other cases the transferee forum might have a shorter statute of limitations or might refuse to adjudicate a claim which would have been actionable in the transferor State. In such cases a defendant's motion to transfer could be tantamount to a motion to dismiss. [25] In light, therefore, of this background and the facts of the present case, we need not and do not consider the merits of the contentions concerning the meaning and proper application of Pennsylvania's laws and choice of law rules. For present purposes it is enough that the potential prejudice to the plaintiffs is so substantial as to require review of the assumption that a change of state law would be a permissible result of transfer under § 1404 (a). The decisions of the lower federal courts, taken as a whole, reveal that courts construing § 1404 (a) have been strongly inclined to protect plaintiffs against the risk that transfer might be accompanied by a prejudicial change in applicable state laws. [26] Although the federal courts have utilized a variety of doctrines in order to approve a desirable transfer and at the same time protect the plaintiffs, [27] the prevailing view in the lower federal courts is that adopted by the Court of Appeals for the Tenth Circuit in 1950, only two years after the enactment of § 1404 (a), in Headrick v. Atchison, T. & S. F. R. Co., 182 F. 2d 305, and further developed in the recent decision of the Court of Appeals for the Second Circuit in H. L. Green Co., Inc., v. MacMahon, 312 F. 2d 650. These cases have adopted and applied a general interpretative principle which we believe faithfully reflects the purposes underlying § 1404 (a). In Headrick v. Atchison, T. & S. F. R. Co., supra , the plaintiff, a Missouri citizen, had been injured in an accident in California. He contended that responsibility lay with the defendant railroad, a Kansas corporation doing business in a number of States. The plaintiff's Missouri attorney entered into settlement negotiations with the defendant but these negotiations continued until after an action was barred by the statute of limitations of California; [and] thereafter the attorney was advised that the defendant would rely upon such statute as a bar to the plaintiff's claim . . . . Id., at 307. The plaintiff thereupon filed his action in a state court in New Mexico, where the defendant was amenable to process and where, by virtue of a longer statute of limitations, suit was not barred. The defendant then removed the case to the United States District Court for the District of New Mexico on the ground of diversity. In the District Court the defendant moved for dismissal or in the alternative to transfer the cause to the United States District Court of California, Northern Division, pursuant to . . . § 1404 (a). Ibid. The court denied the transfer, indicating that it would have transferred the action to California had the statute of limitations of that state not run, but since it had, a transfer would be futile and unavailing. Id., at 308. The Court of Appeals reversed, observing first that the plaintiff: had a legal right to select any forum where the defendant was amenable to process and no contention is made here that the case was not properly brought in the New Mexico state court. It is conceded that the action is not barred by the New Mexico statute. Had the case been tried in the New Mexico state court, the procedural laws of New Mexico including the statutes of limitations would be applicable. . . . [I]n removal cases the Federal Court must apply the state law and the state policy. Id., at 309. From this it followed, the court concluded, that: Upon removal to the Federal Court in New Mexico, the case would remain a New Mexico case controlled by the law and policy of that state, and if § 1404 (a) is applicable and a transfer to the California court is ordered for the convenience of the parties the witnesses and in the interests of justice, there is no logical reason why it should not remain a New Mexico case still controlled by the law and policy of that state. Id., at 309-310. Although the cases following the Headrick principle have usually involved a similar problem concerning statutes of limitations, the Court of Appeals for the Second Circuit plainly indicated in H. L. Green Co., Inc., v. MacMahon, supra , that the Headrick rule was equally applicable to other laws of the transferor State, including choice-of-law rules, which might affect the outcome of the litigation. The plaintiff in that case brought an action under the Securities Exchange Act in the District Court for the Southern District of New York and there moved to amend his complaint to add a common-law claim arising under New York law. Without ruling on the motion to add to the complaint, the District Court granted a motion by the defendant to transfer to the Southern District of Alabama pursuant to § 1404 (a). The plaintiff objected to transfer not only because the Alabama statute of limitations would be unfavorable but also because prejudice would result from applying Alabama law to the common law claim [which the plaintiff] has moved to join with the statutory claim. 312 F. 2d, at 652. The Court of Appeals rejected these contentions: Although as a matter of federal policy a case may be transferred to a more convenient part of the system, whatever rights the parties have acquired under state law should be unaffected. The case should remain as it was in all respects but location. Headrick v. Atchison, T. & S. F. Ry. Co., 182 F. 2d 305 . . . . Id., at 652-653. The Court made the import of this rule plain by expressly declaring first that the transferee court sitting in Alabama should apply New York law in ruling on the motion to add to the complaint and, secondly, that if the complaint were thus amended, the transferee court will apply New York law (including any relevant New York choice-of-law rules). Id., at 654. Of course these cases allow plaintiffs to retain whatever advantages may flow from the state laws of the forum they have initially selected. There is nothing, however, in the language or policy of § 1404 (a) to justify its use by defendants to defeat the advantages accruing to plaintiffs who have chosen a forum which, although it was inconvenient, was a proper venue. In this regard the transfer provisions of § 1404 (a) may be compared with those of § 1406 (a). [28] Although both sections were broadly designed to allow transfer instead of dismissal, § 1406 (a) provides for transfer from forums in which venue is wrongly or improperly laid, whereas, in contrast, § 1404 (a) operates on the premise that the plaintiff has properly exercised his venue privilege. [29] This distinction underlines the fact that Congress, in passing § 1404 (a), was primarily concerned with the problems arising where, despite the propriety of the plaintiff's venue selection, the chosen forum was an inconvenient one. [30] In considering the Judicial Code, Congress was particularly aware of the need for provisions to mitigate abuses stemming from broad federal venue provisions. The venue provision of the Federal Employers' Liability Act was the subject of special concern. [31] However, while the Judicial Code was pending, Congress considered and rejected the Jennings bill which, as the Court stated in Ex parte Collett, 337 U. S. 55, 64, was far more drastic than § 1404 (a), and which would in large part have repealed [the venue section] of the Liability Act by severely delimiting the permissible forums. [32] This legislative background supports the view that § 1404 (a) was not designed to narrow the plaintiff's venue privilege or to defeat the state-law advantages that might accrue from the exercise of this venue privilege but rather the provision was simply to counteract the inconveniences that flowed from the venue statutes by permitting transfer to a convenient federal court. The legislative history of § 1404 (a) certainly does not justify the rather startling conclusion that one might get a change of law as a bonus for a change of venue. [33] Indeed, an interpretation accepting such a rule would go far to frustrate the remedial purposes of § 1404 (a). If a change of law were in the offing, the parties might well regard the section primarily as a forum-shopping instrument. [34] And, more importantly, courts would at least be reluctant to grant transfers, despite considerations of convenience, if to do so might conceivably prejudice the claim of a plaintiff who had initially selected a permissible forum. [35] We believe, therefore, that both the history and purposes of § 1404 (a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms. [36] Although we deal here with a congressional statute apportioning the business of the federal courts, our interpretation of that statute fully accords with and is supported by the policy underlying Erie R. Co. v. Tompkins, 304 U. S. 64. This Court has often formulated the Erie doctrine by stating that it establishes the principle of uniformity within a state, Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U. S. 487, 496, and declaring that federal courts in diversity of citizenship cases are to apply the laws of the states in which they sit, Griffin v. McCoach, 313 U. S. 498, 503. [37] A superficial reading of these formulations might suggest that a transferee federal court should apply the law of the State in which it sits rather than the law of the transferor State. Such a reading, however, directly contradicts the fundamental Erie doctrine which the quoted formulations were designed to express. As this Court said in Guaranty Trust Co. v. York, 326 U. S. 99, 109:  Erie R. Co. v. Tompkins was not an endeavor to formulate scientific legal terminology. It expressed a policy that touches vitally the proper distribution of judicial power between State and federal courts. . . . The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away should not lead to a substantially different result. Applying this analysis to § 1404 (a), we should ensure that the accident of federal diversity jurisdiction does not enable a party to utilize a transfer to achieve a result in federal court which could not have been achieved in the courts of the State where the action was filed. This purpose would be defeated in cases such as the present if nonresident defendants, properly subjected to suit in the transferor State (Pennsylvania), could invoke § 1404 (a) to gain the benefits of the laws of another jurisdiction (Massachusetts). What Erie and the cases following it have sought was an identity or uniformity between federal and state courts; [38] and the fact that in most instances this could be achieved by directing federal courts to apply the laws of the States in which they sit should not obscure that, in applying the same reasoning to § 1404 (a), the critical identity to be maintained is between the federal district court which decides the case and the courts of the State in which the action was filed. [39] We conclude, therefore, that in cases such as the present, where the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue. A change of venue under § 1404 (a) generally should be, with respect to state law, but a change of courtrooms. [40] We, therefore, reject the plaintiffs' contention that the transfer was necessarily precluded by the likelihood that a prejudicial change of law would result. In so ruling, however, we do not and need not consider whether in all cases § 1404 (a) would require the application of the law of the transferor, as opposed to the transferee, State. [41] We do not attempt to determine whether, for example, the same considerations would govern if a plaintiff sought transfer under § 1404 (a) [42] or if it was contended that the transferor State would simply have dismissed the action on the ground of forum non conveniens. [43] B. It is in light of the foregoing analysis that we must consider the interpretation of Rule 17 (b) of the Federal Rules of Civil Procedure and the relationship between that Rule and the laws applicable following a § 1404 (a) transfer. As indicated, supra, at 619, the plaintiffs contend that transfer cannot be granted because, although they are fully qualified as personal representatives to sue in courts in Pennsylvania, they lack the qualifications necessary to sue in Massachusetts. Rule 17 (b) provides that for such personal representatives capacity to sue or be sued shall be determined by the law of the state in which the district court is held. [44] The question arising here is whether the Court of Appeals was correct in assuming that, in the context of a § 1404 (a) transfer between district courts, the language of the Rule referred to the law of the State in which the transferee district court is held, rather than to the law of the State of the transferor district court. The plaintiffs, arguing that Rule 17 (b) refers only to the transferee district court, suggest that their interpretation is necessary to protect the interest of States in controlling the qualifications of foreign fiduciaries. The plaintiffs state that the vast majority of American jurisdictions permit only locally qualified foreign representatives because safeguards are needed to protect local citizens who are potential defendants from suits by more than one fiduciary purporting to represent the same decedent and protect all persons from losses caused by the actions of irresponsible out-of-state fiduciaries. These considerations do not, however, support the plaintiffs' interpretation of Rule 17 (b). [45] In the present case, for example, it is conceded that the plaintiffs are qualified as personal representatives under the laws of the transferor State (Pennsylvania). It seems clear that the defendants, who are seeking transfer to another jurisdiction, will be equitably protected if Rule 17 (b) is interpreted to refer to the laws of the transferor State (Pennsylvania). It would be ironic if Rule 17 (b) were construed so that these plaintiffs could defeat transfer by arguing that the defendants would receive inadequate protection against foreign fiduciaries. We think it is clear that the Rule's reference to the State in which the district court is held was intended to achieve the same basic uniformity between state and federal courts as was intended by the decisions which have formulated the Erie policy in terms of requiring federal courts to apply the laws of the States in which they sit. [46] See supra, at 637-639. The plaintiffs' argument assumes, [47] incorrectly we think, that the critical phrase— in which the district court is held—carries a plain meaning which governs even in the case of a § 1404 (a) transfer involving two district courts sitting in different States. It should be remembered, however, that this phrase, like those which were formulated to express the Erie doctrine, was employed long before the enactment of a § 1404 (a) provision for transfer within the federal system. [48] We believe that Rule 17 (b) was intended to work an accommodation of interests within our federal system and that in interpreting it in new contexts we should look to its guiding policy and keep it free from entanglements with analytical or terminological niceties. Cf. Guaranty Trust Co. v. York, 326 U. S., at 110. Since in this case the transferee district court must under § 1404 (a) apply the laws of the State of the transferor district court, it follows in our view that Rule 17 (b) must be interpreted similarly so that the capacity to sue will also be governed by the laws of the transferor State. Where a § 1404 (a) transfer is thus held not to effect a change of law but essentially only to authorize a change of courtrooms, the reference in Rule 17 (b) to the law of the State in which the district court is held should be applied in a corresponding manner so that it will refer to the district court which sits in the State that will generally be the source of applicable laws. We conclude, therefore, that the Court of Appeals misconceived the meaning and application of Rule 17 (b) and erred in holding that it required the denial of the § 1404 (a) transfer.",where the action might have been brought.
+738,106788,1,2,"The holding that a § 1404 (a) transfer would not alter the state law to be applied does not dispose of the question of whether the proposed transfer can be justified when measured against the relevant criteria of convenience and fairness. Though the answer to this question does not follow automatically from the determination that the transferred actions will carry with them the transferor's laws, that determination nevertheless may make the transfer more—or less—practical and desirable. The matters to be weighed in assessing convenience and fairness are pervasively shaped by the contours of the applicable laws. The legal rules obviously govern what facts will be relevant and irrelevant, what witnesses may be heard, what evidence will be most vital, and so on. Not only do the rules thus affect the convenience of a given place of trial but they also bear on considerations such as judicial familiarity with the governing laws and the relative ease and practicality of trying the cases in the alternative forums. In the present case the District Court held that the requested transfer could and should be granted regardless of whether the laws of the transferor State or of the transferee State were to be applied. 204 F. Supp., at 433-436. The court based its ruling on a general finding that transfer to Massachusetts would be sufficiently convenient and fair under the laws of either Pennsylvania or Massachusetts. We do not attempt to review this general conclusion or to reassess the discretion that was exercised. We do conclude, however, that the District Court in assuming that the transferee court would be free to determine which State's laws were to be applied, overlooked or did not adequately consider several criteria or factors the relevance of which is made more apparent when it is recognized that even after transfer the laws of the transferor State will continue to apply. It is apparent that the desirability of transfer might be significantly affected if Pennsylvania courts decided that, in actions such as the present, they would recognize the cause of action based on the Massachusetts Death Act but would not apply that statute's culpability principle and damage limitation. In regard to this possibility it is relevant to note that the District Court in transferring these actions generally assumed that transfer to Massachusetts would facilitate the consolidation of these cases with those now pending in the Massachusetts District Court and that, as a result, transfer would be accompanied by the full benefits of consolidation and uniformity of result. 204 F. Supp., at 431-432. Since, however, Pennsylvania laws would govern the trial of the transferred cases, insofar as those laws may be significantly different from the laws governing the cases already pending in Massachusetts, the feasibility of consolidation and the benefits therefrom may be substantially altered. Moreover, if the transferred actions would not be subject to the Massachusetts culpability and damage limitation provisions, then the plaintiffs might find a relatively greater need for compensatory damage witnesses to testify with regard to the economic losses suffered by individuals. It is possible that such a difference in damage rules could make the plaintiffs relatively more dependent upon witnesses more conveniently located for a trial in Pennsylvania. In addition, it has long been recognized that: There is an appropriateness . . . in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 509. Thus, to the extent that Pennsylvania laws are difficult or unclear and might not defer to Massachusetts laws, it may be advantageous to retain the actions in Pennsylvania where the judges possess a more ready familiarity with the local laws. If, on the other hand, Pennsylvania courts would apply the Massachusetts Death Act in its entirety, these same factors might well weigh quite differently. Consolidation of the transferred cases with those now pending in Massachusetts might be freed from any potential difficulties and rendered more desirable. The plaintiffs' need for witnesses residing in Pennsylvania might be significantly reduced. And, of course, the trial would be held in the State in which the causes of action arose and in which the federal judges are more familiar with the governing laws. In pointing to these considerations, we are fully aware that the District Court concluded that the relevant Pennsylvania law was unsettled, that its determination involved difficult questions, and that in the near future Pennsylvania courts might provide guidance. [49] We think that this uncertainty, however, should itself have been considered as a factor bearing on the desirability of transfer. Section 1404 (a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient. We do not suggest that elements of uncertainty in transferor state law would alone justify a denial of transfer; but we do think that the uncertainty is one factor, among others, to be considered in assessing the desirability of transfer. We have not singled out the above criteria for the purpose of suggesting either that they are of controlling importance or that the criteria actually relied upon by the District Court were improper. We have concluded, however, that the District Court ignored certain considerations which might well have been more clearly appraised and might have been considered controlling had not that court assumed that even after transfer to Massachusetts the transferee District Court would be free to decide that the law of its State might apply. It is appropriate, therefore, to reverse the judgment of the Court of Appeals and to remand to the District Court to reconsider the motion to transfer. Accordingly, the judgment of the Court of Appeals for the Third Circuit is reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion. Reversed and remanded. MR. JUSTICE BLACK concurs in the reversal substantially for the reasons set forth in the opinion of the Court, but he believes that, under the circumstances shown in the opinion, this Court should now hold it was error to order these actions transferred to the District of Massachusetts.",applicable law: effect on the convenience of parties and witnesses.
+739,110113,1,1,"Commitment to a mental institution necessarily entails a massive curtailment of liberty, Humphrey v. Cady, 405 U. S. 504, 509 (1972), and inevitably affects fundamental rights. Baxstrom v. Herald, 383 U. S. 107, 113 (1966). Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the continuous and detailed control of strangers. They are subject to intrusive treatment which, especially if unwarranted, may violate their right to bodily integrity. Such treatment modalities may include forced administration of psychotropic medication, [1] aversive conditioning, [2] convulsive therapy, [3] and even psychosurgery. [4] Furthermore, as the Court recognizes, see ante, at 600, persons confined in mental institutions are stigmatized as sick and abnormal during confinement and, in some cases, even after release. [5] Because of these considerations, our cases have made clear that commitment to a mental hospital is a deprivation of liberty which the State cannot accomplish without due process of law. O'Connor v. Donaldson, 422 U. S. 563, 580 (1975) (BURGER, C. J., concurring). See, e. g., McNeil v. Director, Patuxent Institution, 407 U. S. 245 (1972) (defective delinquent commitment following expiration of prison term); Specht v. Patterson, 386 U. S. 605 (1967) (sex offender commitment following criminal conviction); Chaloner v. Sherman, 242 U. S. 455, 461 (1917) (incompetence inquiry). In the absence of a voluntary, knowing, and intelligent waiver, adults facing commitment to mental institutions are entitled to full and fair adversary hearings in which the necessity for their commitment is established to the satisfaction of a neutral tribunal. At such hearings they must be accorded the right to be present with counsel, have an opportunity to be heard, be confronted with witnesses against [them], have the right to cross-examine, and to offer evidence of [their] own. Specht v. Patterson, supra, at 610. These principles also govern the commitment of children. Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. See, e. g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967). Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 74 (1976). Indeed, it may well be argued that children are entitled to more protection than are adults. The consequences of an erroneous commitment decision are more tragic where children are involved. Children, on the average, are confined for longer periods than are adults. [6] Moreover, childhood is a particularly vulnerable time of life [7] and children erroneously institutionalized during their formative years may bear the scars for the rest of their lives. [8] Furthermore, the provision of satisfactory institutionalized mental care for children generally requires a substantial financial commitment [9] that too often has not been forthcoming. [10] Decisions of the lower courts have chronicled the inadequacies of existing mental health facilities for children. See, e. g., New York State Assn. for Retarded Children v. Rockefeller, 357 F. Supp. 752, 756 (EDNY 1973) (conditions at Willowbrook School for the Mentally Retarded are inhumane, involving failure to protect the physical safety of [the] children, substantial personnel shortage, and poor and hazardous conditions); Wyatt v. Stickney, 344 F. Supp. 387, 391 (MD Ala. 1972), aff'd sub nom. Wyatt v. Aderholt, 503 F. 2d 1305 (CA5 1974) (grossly substandard conditions at Partlow School for the Mentally Retarded lead to hazardous and deplorable inadequacies in the institution's operation). [11] In addition, the chances of an erroneous commitment decision are particularly great where children are involved. Even under the best of circumstances psychiatric diagnosis and therapy decisions are fraught with uncertainties. See O'Connor v. Donaldson, supra, at 584 (BURGER, C. J., concurring). These uncertainties are aggravated when, as under the Georgia practice, the psychiatrist interviews the child during a period of abnormal stress in connection with the commitment, and without adequate time or opportunity to become acquainted with the patient. [12] These uncertainties may be further aggravated when economic and social class separate doctor and child, thereby frustrating the accurate diagnosis of pathology. [13] These compounded uncertainties often lead to erroneous commitments since psychiatrists tend to err on the side of medical caution and therefore hospitalize patients for whom other dispositions would be more beneficial. [14] The National Institute of Mental Health recently found that only 36% of patients below age 20 who were confined at St. Elizabeths Hospital actually required such hospitalization. [15] Of particular relevance to this case, a Georgia study Commission on Mental Health Services for Children and Youth concluded that more than half of the State's institutionalized children were not in need of confinement if other forms of care were made available or used. Cited in J. L. v. Parham, 412 F. Supp. 112, 122 (MD Ga. 1976).",rights of children committed to mental institutions
+740,110113,1,2,"
+Notwithstanding all this, Georgia denies hearings to juveniles institutionalized at the behest of their parents. Georgia rationalizes this practice on the theory that parents act in their children's best interests and therefore may waive their children's due process rights. Children incarcerated because their parents wish them confined, Georgia contends, are really voluntary patients. I cannot accept this argument. In our society, parental rights are limited by the legitimate rights and interests of their children. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Prince v. Massachusetts, 321 U. S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children [16] and that, inter alia, curtail parental authority to alienate their children's property, [17] to withhold necessary medical treatment, [18] and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults. [19] This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor's right to secure an abortion on attaining her parents' consent since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy. See Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 75. This case is governed by the rule of Danforth. The right to be free from wrongful incarceration, physical intrusion, and stigmatization has significance for the individual surely as great as the right to an abortion. Moreover, as in Danforth, the parent-child dispute at issue here cannot be characterized as involving only a routine child-rearing decision made within the context of an ongoing family relationship. Indeed, Danforth involved only a potential dispute between parent and child, whereas here a break in family autonomy has actually resulted in the parents' decision to surrender custody of their child to a state mental institution. In my view, a child who has been ousted from his family has even greater need for an independent advocate. Additional considerations counsel against allowing parents unfettered power to institutionalize their children without cause or without any hearing to ascertain that cause. The presumption that parents act in their children's best interests, while applicable to most child-rearing decisions, is not applicable in the commitment context. Numerous studies reveal that parental decisions to institutionalize their children often are the results of dislocation in the family unrelated to the children's mental condition. [20] Moreover, even well-meaning parents lack the expertise necessary to evaluate the relative advantages and disadvantages of inpatient as opposed to outpatient psychiatric treatment. Parental decisions to waive hearings in which such questions could be explored, therefore, cannot be conclusively deemed either informed or intelligent. In these circumstances, I respectfully suggest, it ignores reality to assume blindly that parents act in their children's best interests when making commitment decisions and when waiving their children's due process rights.
+This does not mean States are obliged to treat children who are committed at the behest of their parents in precisely the same manner as other persons who are involuntarily committed. The demands of due process are flexible and the parental commitment decision carries with it practical implications that States may legitimately take into account. While as a general rule due process requires that commitment hearings precede involuntary hospitalization, when parents seek to hospitalize their children special considerations militate in favor of postponement of formal commitment proceedings and against mandatory adversary preconfinement commitment hearings. First, the prospect of an adversary hearing prior to admission might deter parents from seeking needed medical attention for their children. Second, the hearings themselves might delay treatment of children whose home life has become impossible and who require some form of immediate state care. Furthermore, because adversary hearings at this juncture would necessarily involve direct challenges to parental authority, judgment, or veracity, preadmission hearings may well result in pitting the child and his advocate against the parents. This, in turn, might traumatize both parent and child and make the child's eventual return to his family more difficult. Because of these special considerations, I believe that States may legitimately postpone formal commitment proceedings when parents seek inpatient psychiatric treatment for their children. Such children may be admitted, for a limited period, without prior hearing, so long as the admitting psychiatrist first interviews parent and child and concludes that short-term inpatient treatment would be appropriate. Georgia's present admission procedures are reasonably consistent with these principles. See ante, at 613-616. To the extent the District Court invalidated this aspect of the Georgia juvenile commitment scheme and mandated preconfinement hearings in all cases, I agree with the Court that the District Court was in error.
+I do not believe, however, that the present Georgia juvenile commitment scheme is constitutional in its entirety. Although Georgia may postpone formal commitment hearings, when parents seek to commit their children, the State cannot dispense with such hearings altogether. Our cases make clear that, when protected interests are at stake, the fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.' Mathews v. Eldridge, 424 U. S. 319, 333 (1976), quoting in part from Armstrong v. Manzo, 380 U. S. 545, 552 (1965). Whenever prior hearings are impracticable, States must provide reasonably prompt postdeprivation hearings. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975), with Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). The informal postadmission procedures that Georgia now follows are simply not enough to qualify as hearingsโ€”let alone reasonably prompt hearings. The procedures lack all the traditional due process safeguards. Commitment decisions are made ex parte. Georgia's institutionalized juveniles are not informed of the reasons for their commitment; nor do they enjoy the right to be present at the commitment determination, the right to representation, the right to be heard, the right to be confronted with adverse witnesses, the right to cross-examine, or the right to offer evidence of their own. By any standard of due process, these procedures are deficient. See Wolff v. McDonnell, 418 U. S. 539 (1974); Morrissey v. Brewer, 408 U. S. 471 (1972); McNeil v. Director, Patuxent Institution, 407 U. S. 245 (1972); Specht v. Patterson, 386 U. S., at 610. See also Goldberg v. Kelly, 397 U. S. 254, 269-271 (1970). I cannot understand why the Court pretermits condemnation of these ex parte procedures which operate to deny Georgia's institutionalized juveniles even some form of hearing, Mathews v. Eldridge, supra, at 333, before they are condemned to suffer the rigors of long-term institutional confinement. [21] The special considerations that militate against preadmission commitment hearings when parents seek to hospitalize their children do not militate against reasonably prompt postadmission commitment hearings. In the first place, postadmission hearings would not delay the commencement of needed treatment. Children could be cared for by the State pending the disposition decision. Second, the interest in avoiding family discord would be less significant at this stage since the family autonomy already will have been fractured by the institutionalization of the child. In any event, postadmission hearings are unlikely to disrupt family relationships. At later hearings, the case for and against commitment would be based upon the observations of the hospital staff and the judgments of the staff psychiatrists, rather than upon parental observations and recommendations. The doctors urging commitment, and not the parents, would stand as the child's adversaries. As a consequence, postadmission commitment hearings are unlikely to involve direct challenges to parental authority, judgment, or veracity. To defend the child, the child's advocate need not dispute the parents' original decision to seek medical treatment for their child, or even, for that matter, their observations concerning the child's behavior. The advocate need only argue, for example, that the child had sufficiently improved during his hospital stay to warrant outpatient treatment or outright discharge. Conflict between doctor and advocate on this question is unlikely to lead to family discord. As a consequence, the prospect of a postadmission hearing is unlikely to deter parents from seeking medical attention for their children and the hearing itself is unlikely so to traumatize parent and child as to make the child's eventual return to the family impracticable. Nor would postadmission hearings defeat the primary purpose of the state juvenile mental health enterprise. Under the present juvenile commitment scheme, Georgia parents do not enjoy absolute discretion to commit their children to public mental hospitals. See ante, at 614-615. Superintendents of state facilities may not accept children for long-term treatment unless they first determine that the children are mentally ill and will likely benefit from long-term hospital care. See ibid. If the superintendent determines either condition is unmet, the child must be released or refused admission, regardless of the parents' desires. See ibid. No legitimate state interest would suffer if the superintendent's determinations were reached through fair proceedings with due consideration of fairly presented opposing viewpoints rather than through the present practice of secret, ex parte deliberations. [22] Nor can the good faith and good intentions of Georgia's psychiatrists and social workers, adverted to by the Court, see ante, at 615-616, excuse Georgia's ex parte procedures. Georgia's admitting psychiatrists, like the school disciplinarians described in Goss v. Lopez, 419 U. S. 565 (1975), although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. Id., at 580. See App. 188-190, testimony of Dr. Messinger. Here, as in Goss, the risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the . . . process. . . . `[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . .' `Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.' Goss v. Lopez, supra, at 580, quoting in part from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 170, 171-172 (1951) (Frankfurter, J., concurring).",rights of children committed by their parents
+741,110113,1,3,"Georgia does not accord prior hearings to juvenile wards of the State of Georgia committed by state social workers acting in loco parentis. The Court dismisses a challenge to this practice on the grounds that state social workers are obliged by statute to act in the children's best interest. See ante, at 619. I find this reasoning particularly unpersuasive. With equal logic, it could be argued that criminal trials are unnecessary since prosecutors are not supposed to prosecute innocent persons. To my mind, there is no justification for denying children committed by their social workers the prior hearings that the Constitution typically requires. In the first place, such children cannot be said to have waived their rights to a prior hearing simply because their social workers wished them to be confined. The rule that parents speak for their children, even if it were applicable in the commitment context, cannot be transmuted into a rule that state social workers speak for their minor clients. The rule in favor of deference to parental authority is designed to shield parental control of child rearing from state interference. See Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). The rule cannot be invoked in defense of unfettered state control of child rearing or to immunize from review the decisions of state social workers. The social worker-child relationship is not deserving of the special protection and deference accorded to the parent-child relationship, and state officials acting in loco parentis cannot be equated with parents. See O'Connor v. Donaldson, 422 U. S. 563 (1975); Wisconsin v. Yoder, 406 U. S. 205 (1972). Second, the special considerations that justify postponement of formal commitment proceedings whenever parents seek to hospitalize their children are absent when the children are wards of the State and are being committed upon the recommendations of their social workers. The prospect of preadmission hearings is not likely to deter state social workers from discharging their duties and securing psychiatric attention for their disturbed clients. Moreover, since the children will already be in some form of state custody as wards of the State, prehospitalization hearings will not prevent needy children from receiving state care during the pendency of the commitment proceedings. Finally, hearings in which the decisions of state social workers are reviewed by other state officials are not likely to traumatize the children or to hinder their eventual recovery. For these reasons, I believe that, in the absence of exigent circumstances, juveniles committed upon the recommendation of their social workers are entitled to preadmission commitment hearings. As a consequence, I would hold Georgia's present practice of denying these juveniles prior hearings unconstitutional.",rights of children committed by their state guardians
+742,108526,1,3,"The two cases, although different, have their roots in the formation of UDC, and it is not inappropriate that the cases were consolidated and are here together. A. As hereinabove noted, AUC in its litigation seeks two things: outright distribution of the mixed-bloods' percentage of the mineral estate, and a determination that AUC is entitled to participate in management with the business committee of the full-bloods. There is, and can be, no dispute that the United States holds title to the land, including the mineral interest, constituting the Uintah and Ouray Reservation. Prior to the 1954 Act all members of the tribe were the beneficial owners of that mineral interest. The division of the interest between the full-bloods, on the one hand, and the mixed-bloods, on the other, came about by reason of the Act and of the procedures set in motion by the Act. To the extent, therefore, that AUC, by its suit, seeks distribution to the individual mixed-bloods whom it purports to represent, it is necessarily a suit against the United States. The United States, of course, may not be sued without its consent. United States v. Sherwood, 312 U. S. 584, 586 (1941). This long-established principle has been applied in actions for the possession or conveyance of real estate. Malone v. Bowdoin, 369 U. S. 643 (1962). It has been applied to Indian lands the title to which the United States holds in trust. Minnesota v. United States, 305 U. S. 382 (1939); Oregon v. Hitchcock, 202 U. S. 60, 70 (1906). It has been applied, specifically, in a suit by an Indian who has a beneficial interest in land. Naganab v. Hitchcock, 202 U. S. 473 (1906). Naganab, therefore, controls the distribution aspect of the AUC case unless the United States has consented to be sued. The consent, it is claimed, exists in 25 U. S. C. § 345. [11] This, however, is an allotment statute. Allotment is a term of art in Indian law. U. S. Dept. of the Interior, Federal Indian Law 774 (1958). It means a selection of specific land awarded to an individual allottee from a common holding. Reynolds v. United States, 174 F. 212 (CA8 1909). See the Act of February 8, 1887, 24 Stat. 388, as amended, 25 U. S. C. §§ 331-334. Section 345 authorizes, and provides governmental consent for, only actions for allotment. First Moon v. White Tail, 270 U. S. 243 (1926); Harkins v. United States, 375 F. 2d 239 (CA 10 1967); United States v. Preston, 352 F. 2d 352, 355 (CA9 1965). See Arenas v. United States, 322 U. S. 419 (1944). Although the interest in the mineral estate that AUC seeks to have conveyed pro rata to the individual mixed-bloods perhaps could be made the subject of an allotment, it has never been so subjected. Neither is it appurtenant to an allotment. The interest relates to the tribal land of the reservation. It remains tribal property. Further, § 10 of the 1954 Act, 25 U. S. C. § 677i, itself contemplates and provides specifically for the non-allocation of that interest. We therefore readily conclude that § 345 has no application here. Neither do 28 U. S. C. §§ 1399 and 2409 afford a basis for jurisdiction; they have application only to partition suits where the United States is a tenant in common or a joint tenant. That is not this situation. The AUC action, therefore, was properly dismissed for want of jurisdiction. B. AUC's prayer for a determination as to management rights deserves a further word. The Ute Partition Act was the result of proposals initiated by the tribe itself. See H. R. Rep. No. 2493, 83d Cong., 2d Sess., 2 (1954); S. Rep. No. 1632, 83d Cong., 2d Sess., 7 (1954). The tribe also drafted the Act. Id., at 3 and 7, respectively. It provided for organization by the mixed-bloods and for the selection of authorized representatives with power to take any action the Act required to be taken by the mixed-bloods as a group. § 6, 25 U. S. C. § 677e. AUC was formed in 1956 and was the product of this organizational power. Its constitution and bylaws authorize the delegation of necessary or desirable power or authority to corporations formed by the mixed-bloods. UDC was formed by mixed-bloods in 1958 specifically to manage mineral rights and unadjudicated claims against the United States jointly with the business committee. AUC approved UDC's articles and by resolution delegated authority to UDC to act in accord with those articles. These steps were taken pursuant to the Partition Act. UDC's formation and structure were contemplated by the Act, and AUC itself created and breathed life and vigor into UDC. All this was within Congress' power. United States v. Waller, 243 U. S. 452, 462 (1917); Tiger v. Western Investment Co., 221 U. S. 286 (1911). UDC's legitimacy was further recognized by its anticipatory exemption from federal income tax, under the Act of August 2, 1956, § 3, 70 Stat. 936; by the freeing of its shares from mortgage, levy, attachment, and the like, so long as the shares remained in the ownership of the original shareholder or his heirs or legatees, under the Act of September 25, 1962, 76 Stat. 597, 598; and by the inclusion of UDC by name as an entity to receive the trust fund resulting from the judgment against the United States in favor of the Confederated Bands of Ute Indians, under the Act of August 1, 1967, 81 Stat. 164, as amended, 82 Stat. 171, 25 U. S. C. § 676a. Clearly, it is UDC and not AUC that is entitled to manage the oil, gas, and mineral rights with the committee of the full-bloods.",The AUC Case
+743,108526,1,4,"In this case the 85 plaintiffs sought damages for alleged violations by the defendants, in connection with sales by the plaintiffs of their UDC shares, of § 10 (b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78j (b), [12] and of Rule 10b-5 [13] promulgated thereunder by the Securities and Exchange Commission, 17 CFR § 240.10b-5. The sales in question were effected in 1963 and 1964; some were made before, and some were made after, the expiration of the Secretary's specified 10-year period following the passage of the Ute Partition Act. The claims center in the facts that the bank, by its agreement with UDC, was the transfer agent for UDC shares; that it had physical possession of all the stock certificates with their specific legend of caution and warning; that, because of the bank's possession, a shareholder's possible contact with, and awareness of, the legend was minimized; that the bank handled the documents implementing the first-refusal procedure; and that the mixed-blood who contemplated the sale of his shares was compelled to deal through the bank. The District Court made lengthy and meticulously detailed findings of fact. Some are not challenged by any of the parties. Others are challenged. The following, we conclude, are adequately supported by the record: 1. In 1959, after the bank was retained as transfer agent, UDC's attorney wrote the bank advising it that UDC's directors, by formal minute, had instructed him to ask the bank to discourage the sale of stock of the Ute Distribution Corporation by any of its stockholders and to emphasize and stress to the said stockholders the importance of retaining said stock. The letter further stated, [W]e trust you will impress upon anyone desiring to make a transfer that there is no possible way of determining the true value of this stock. 2. The bank maintained a branch office in Roosevelt, Utah. Many mixed-bloods resided in that area. This was, among other things for the purpose of facilitating and assisting mixed-bloods in the transfer of the UDC stock. Defendants Gale and Haslem were the bank's assistant managers at Roosevelt. They were also notaries public. 3. With respect to most of the sales of UDC stock by the 12 plaintiffs to nonmembers of the tribe, either Gale or Haslem prepared and notarized the necessary transfer papers, including signature guarantees and the affidavits of the sellers to the effect that they were receiving not less than the price at which the shares had been offered to members of the tribe. The procedure with respect to the preparation and execution of these affidavits was informal at best. In at least one case the affidavit was signed in blank; in another Gale dissuaded the seller from reading the affidavit before she signed it. 4. Some of the affidavits do not accurately describe the sales to which they relate. Although they state that the sales were for cash, some sellers actually received second-hand automobiles or other tangible property. The superintendent relied on the recitals in the affidavits in preparing his authenticating certificates that were transmitted to the bank as transfer agent. 5. During 1963 and 1964 mixed-bloods sold 1,387 shares of UDC stock. All were sold to nonmembers of the tribe. Haslem purchased 50 of these himself (all after August 27, 1964), and Gale purchased 63 (44 before that date and 19 after). The 113 shares Haslem and Gale purchased constituted 8 1/3% of the total sold by mixed-bloods during those two years. The 12 plaintiffs sold 120 shares; of those Gale purchased 10 and Haslem purchased six. [14] They paid cash for the shares they purchased. Thirty-two other white men bought shares from mixed-bloods during the period. 6. In 1964 and 1965 UDC stock was sold by mixed-bloods at prices ranging from $300 to $700 per share. Shares were being transferred between whites, however, at prices from $500 to $700 per share. 7. Gale and Haslem possessed standing orders from non-Indian buyers. About seven of these were from outside the State. Some of the prospective purchasers maintained deposits at the bank for the purpose of ready consummation of any transaction. 8. The two men received various commissions and gratuities for their services in facilitating the transfer of UDC stock from mixed-bloods to non-Indians. Gale supplied some funds as sales advances to the mixed-blood sellers. He and Haslem solicited contracts for open purchases of UDC stock and did so on bank premises and during business hours. 9. In connection with all this, the bank sought individual accounts from the tribal members. 10. The United States mails and other instrumentalities of interstate commerce were employed by the bank and by Gale and Haslem in connection with the transfer of the UDC shares. The District Court concluded: 1. As to the United States: The Government had reason to know that the mixed-bloods were selling UDC shares to non-Indians under circumstances of a doubtful nature. It owed a duty to the mixed-bloods to discourage and prevent those sales. Its failure to perform that duty was the proximate cause of the sales. 2. As to Gale and Haslem: The two men had devised a plan or scheme to acquire, for themselves and others, shares in UDC from mixed-bloods. In violation of their duty to make a fair disclosure, they succeeded in acquiring shares from mixed-bloods for less than fair value. 3. As to the bank: It was put upon notice of the improper activities of its employees, Gale and Haslem, knowingly created the apparent authority on their part, and was responsible for their conduct. Its liability was joint and several with that of Gale and Haslem. The District Court then ruled that each of the defendants, that is, the United States, the bank, Gale, and Haslem, was liable to each of the 12 plaintiffs (32 transactions involving 122 shares), except that the Government was not liable with respect to any sale after August 27, 1964, or with respect to sales made by plaintiffs Workman and Oran F. Curry because of their knowledge and contributory negligence. Using a $1,500-per-share value for UDC stock, as of the times of the sales, the above-described judgments for $129,519.56 and $77,947.35 were computed and entered. The Court of Appeals reversed in substantial part. It held: 1. As to the United States: There was no duty on the part of the Government to the petitioners, in connection with their sales of UDC stock, that continued after the 1961 termination. No form of wardship or of federal trust relationship existed with respect to the shares after that date. Thus, damages under the Tort Claims Act were not to be awarded. 431 F. 2d, at 1340-1343. 2. As to Gale and Haslem: They were liable only in those instances where the employee personally purchased shares for his own account or for resale to an undisclosed principal at a higher price. With respect to the other transactions, the two employees performed essentially ministerial functions related to share transfers and their conduct was not sufficient to incur liability. The court remanded the case on the issue of damages, 431 F. 2d, at 1345-1349. 3. As to the bank: There was no violation of any duty it may have had to plaintiffs by its contract with UDC. This was so despite the facts that Gale and Haslem were active in encouraging a market for the UDC stock and that the bank may have had some indirect benefit by way of increased deposits. 431 F. 2d, at 1343-1345. The bank, however, was liable to the extent Gale and Haslem were liable. 431 F. 2d, at 1346-1347. In summary, then, the Court of Appeals decided the Reyos case in favor of the United States and, in large part, in favor of the bank; held Gale and Haslem personally liable, and the bank also, only with respect to a few sales; and, as to those sales, remanded the case on the issue of damages. We consider, in turn, the posture of the several defendants. A. The United States. The proclamation of August 26, 1961, was contemplated by § 23 of the Act, 25 U. S. C. § 677v. To the extent the nature of the property so permitted, this marked the fulfillment of the purpose set forth in § 1 of the Act, 25 U. S. C. § 677, namely, the termination of federal supervision over the trust and restricted property of the mixed-bloods. It stated specifically that the mixed-blood thereupon shall not be entitled to any of the services performed for Indians because of his status as an Indian. This broad reference obviously included the shares of UDC although the undivided interests in turn held by UDC and shared with the full-bloods remained subject to restrictions after the proclamation. § 16 (a), 25 U. S. C. § 677 o (a). The UDC stock itself, however, was free of restriction; as to it, federal termination was complete. Each mixed-blood could sell his shares as he wished and to whom he pleased, subject thereafter only to the restrictions imposed by UDC's own articles. There was no remaining governmental authority over those shares. And without such authority there can be no liability on the part of the United States for failure to restrain a sale. The petitioners' argument that the right of first refusal created a duty on the part of the Government does not persuade us. This first-refusal right with respect to UDC stock is provided for in the corporation's articles and thus was created by UDC itself. The corporation's action in this respect imposed no duty on the United States. To be sure, the first-refusal right was undoubtedly patterned after the first refusal provided for a period with respect to real estate in § 15 of the Act, 25 U. S. C. § 677n, and the Secretary's regulations were made applicable to the first-refusal right in stock as far as practicable. 25 CFR § 243.12 (1962). But this parallel created no obligation. B. Gale and Haslem. Section 10 of the Securities Exchange Act of 1934, 15 U. S. C. § 78j, makes it unlawful for any person, directly or indirectly, to employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of any rule the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. One such rule so prescribed is Rule 10b-5. This declares that, in connection with the purchase or sale of any security, it shall be unlawful for any person, directly or indirectly, (1) To employ any device, scheme, or artifice to defraud, (2) To make any untrue statement of a material fact or to omit to state a material fact so that the statements made in the light of the circumstances, are misleading, and (3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. These proscriptions, by statute and rule, are broad and, by repeated use of the word any, are obviously meant to be inclusive. The Court has said that the 1934 Act and its companion legislative enactments [15] embrace a fundamental purpose . . . to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry. SEC v. Capital Gains Research Bureau, 375 U. S. 180, 186 (1963). In the case just cited the Court noted that Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed not technically and restrictively, but flexibly to effectuate its remedial purposes. Id., at 195. This was recently said once again in Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U. S. 6, 12 (1971). In the light of the congressional philosophy and purpose, so clearly emphasized by the Court, we conclude that the Court of Appeals viewed too narrowly the activities of defendants Gale and Haslem. We would agree that if the two men and the employer bank had functioned merely as a transfer agent, there would have been no duty of disclosure here. But, as the Court of Appeals itself observed, the record shows that Gale and Haslem were active in encouraging a market for the UDC stock among non-Indians. 431 F. 2d, at 1345. They did this by soliciting and accepting standing orders from non-Indians. They and the bank, as a result, received increased deposits because of the development of this market. The two men also received commissions and gratuities from the expectant non-Indian buyers. The men, and hence the bank, as the Court found, were entirely familiar with the prevailing market for the shares at all material times. 431 F. 2d, at 1347. The bank itself had acknowledged, by letter to AUC in January 1958, that it would be our duty to see that these transfers were properly made and that, with respect to the sale of shares, the bank would be acting for the individual stockholders. The mixed-blood sellers considered these defendants to be familiar with the market for the shares of stock and relied upon them when they desired to sell their shares. 431 F. 2d, at 1347. Clearly, the Court of Appeals was right to the extent that it held that the two employees had violated Rule 10b-5; in the instances specified in that holding the record reveals a misstatements of a material fact, within the proscription of Rule 10b-5 (2), namely, that the prevailing market price of the UDC shares was the figure at which their purchases were made. We conclude, however, that the Court of Appeals erred when it held that there was no violation of the Rule unless the record disclosed evidence of reliance on material fact misrepresentations by Gale and Haslem. 431 F. 2d, at 1348. We do not read Rule 10b-5 so restrictively. To be sure, the second subparagraph of the rule specifies the making of an untrue statement of a material fact and the omission to state a material fact. The first and third subparagraphs are not so restricted. These defendants' activities, outlined above, disclose, within the very language of one or the other of those sub-paragraphs, a course of business or a device, scheme, or artifice that operated as a fraud upon the Indian sellers. Superintendent of Insurance v. Bankers Life & Casualty Co., supra . This is so because the defendants devised a plan and induced the mixed-blood holders of UDC stock to dispose of their shares without disclosing to them material facts that reasonably could have been expected to influence their decisions to sell. The individual defendants, in a distinct sense, were market makers, not only for their personal purchases constituting 8 1/3% of the sales, but for the other sales their activities produced. This being so, they possessed the affirmative duty under the Rule to disclose this fact to the mixed-blood sellers. See Chasins v. Smith, Barney & Co., 438 F. 2d 1167 (CA2 1970). It is no answer to urge that, as to some of the petitioners, these defendants may have made no positive representation or recommendation. The defendants may not stand mute while they facilitate the mixed-bloods' sales to those seeking to profit in the non-Indian market the defendants had developed and encouraged and with which they were fully familiar. The sellers had the right to know that the defendants were in a position to gain financially from their sales and that their shares were selling for a higher price in that market. Cf., in contrast, § 18 (a) of the Act, 15 U. S. C. § 78r (a), and § 11 (a) of the Securities Act of 1933, 15 U. S. C. § 77k (a). Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision. See Mills v. Electric Auto-Lite Co., 396 U. S. 375, 384 (1970); SEC v. Texas Gulf Sulphur Co., 401 F. 2d 833, 849 (CA2 1968), cert. denied sub nom. Coates v. SEC, 394 U. S. 976 (1969); 6 L. Loss, Securities Regulation 3876-3880 (1969 Supp. to 2d ed. of Vol. 3); A. Bromberg, Securities Law, Fraud—SEC Rule 10b-5, §§ 2.6 and 8.6 (1967). This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact. Chasins v. Smith, Barney & Co., 438 F. 2d, at 1172. Gale and Haslem engaged in more than ministerial functions. Their acts were clearly within the reach of Rule 10b-5. And they were acts performed when they were obligated to act on behalf of the mixed-blood sellers. [16] C. The Bank. The liability of the bank, of course, is coextensive with that of Gale and Haslem.",The Reyos Case
+744,108526,1,5,"A. The District Court determined that the measure of damages for each seller was the difference between the fair value of the UDC shares at the time of his sale and the fair value of what the seller received, including any amount paid to him in settlement by the automobile dealers. The Court of Appeals held that the measure was the profit made by the defendant on resale or, if no resale was made or if the resale was not at arm's length, was the prevailing market price at the time of the purchase from the plaintiffs. 431 F. 2d, at 1348-1349. In our view, the correct measure of damages under § 28 of the Act, 15 U. S. C. § 78bb (a), is the difference between the fair value of all that the mixed-blood seller received and the fair value of what he would have received had there been no fraudulent conduct, see Myzel v. Fields, 386 F. 2d 718, 748 (CA8 1967), cert. denied, 390 U. S. 951 (1968), except for the situation where the defendant received more than the seller's actual loss. In the latter case damages are the amount of the defendant's profit. See Janigan v. Taylor, 344 F. 2d 781, 786 (CA1 1965), cert. denied, 382 U. S. 879 (1965). B. The District Court, as has been noted, arrived at a value for the UDC stock of $1,500 per share. The Court of Appeals concluded that this valuation was not substantiated by the record. The petitioners argue for a value in the neighborhood of $28,000 per share, a figure concededly dependent in large part on an estimate of the ultimate worth of oil shale. We agree with both the District Court and the Court of Appeals that the $28,000 figure is unrealistic and speculative. On the other hand, reasonable inferences may be drawn and the District Court, as the trier of fact on this record, is not restricted to actual sale prices in a market so isolated and so thin as this one. See generally Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 264 (1946); Harry Alter Co. v. Chrysler Corp., 285 F. 2d 903, 907 (CA7 1960); O'Malley v. Ames, 197 F. 2d 256 (CA8 1952). In arriving at the $1,500 figure the District Court considered the existence of extensive oil shale deposits on the reservation; the possession by those deposits of substantial present value and of great potential value; the presence of gas, coal, and other minerals; the administrative cost deposit retained by the United States with respect to each member of the tribe; each petitioner's remaining interest in the 1965 award by the Indian Claims Commission; the existence of claims against the United States not yet fully adjudicated; and the specific prices at which UDC shares were sold by mixed-bloods and between white persons. The court noted that prices paid for the shares were somewhat influenced by the improper activities of Gale and Haslem; by the excess of sellers over buyers; by the fact the typical Indian seller was not so well informed about the potential value of the stock as was the typical non-Indian buyer; by the fact that the Indian seller was under heavy economic pressure to sell; by opinion evidence as to worth in excess of $700 per share; and by the fact that some portion of the depressant factors in the market was attributable to the defendants. On the other hand, the court noted that not all the market's depressant factors were so attributable to the defendants and that the tribe itself, despite the opportunity so to do, had declined to purchase UDC shares at prices ranging from $350 to $700. The court then expressed the belief that the problem was not to determine the ultimate worth of the undivided mineral interest underlying the shares or to be governed solely by the sale prices. It concluded that on the preponderance of the evidence the stock was worth $1,500 per share at the times of the petitioners' respective sales. In the light of all this, and on balance, we find ourselves in agreement with the District Court, and in disagreement with the Court of Appeals, and we conclude that the District Court's $1,500 valuation has sufficient support in the record. The judgment of the Court of Appeals in the AUC case is affirmed. The judgment of the Court of Appeals in the Reyos case is affirmed insofar as it concerns the United States; insofar as it concerns the bank and the individual defendants, that judgment is affirmed in part and is reversed in part, as hereinabove set forth, and the case is remanded for further proceedings. Costs are allowed the individual petitioners as against the bank and the individual defendants. It is so ordered. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.",Damages
+745,6751800,1,2,"
+Last term, in Virginia Pharmacy Board v. Virginia Consumer Cowicil (1976), 425 U. S. 748, the court considered the validity under the First Amendment of a Virginia statute declaring that a pharmacist was guilty of  “unprofessional conduct” if he advertised prescription drug prices. The pharmacist would then be subject to a mone-. tary penalty or the suspension or revocation of his license. The statute thus effectively prevented the advertising of. prescription drug price information. We recognized that the pharmacist who desired to advertise did not wish.to. report any particularly newsworthy fact or to comment on any cultural, philosophical, or political subject; his desired communication was characterized simply: “ ‘I will sell you the X prescription drug at the T price.’ ” Id., at 761. Nonetheless, we held that commercial speech of that kind was entitled to the protection of the First Amendment.. Our analysis began, ibid, with the observation that out-cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo (1976), 424 U. S. 1; New York Times Co. v. Sullivan (1964), 376 U. S. 254; in a form that is sold for profit, Smith v. California (1959), 361 U. S. 147; Murdock v. Pennsylvania (1943), 319 U. S. 105; or in the form of a solicitation to pay. or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut (1940), 310 U. S. 296. If commercial speech is to be distinguished, it “must be distinguished by its content.” 425 U. S., at 761. But a consideration of competing interests reinforced our view that such speech should not be withdrawn from protection merely because it proposed a mundane commercial transaction.Even though the speaker’s interest is largely economic, the court has protected such speech in certain contexts. See, e. g., NLRB v. Gissel Packing Co. (1969), 395 U. S. 575; Thornhill v. Alabama (1940), 310 U. S. 88. The listener's interest is substantial: the consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover,, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day. See Bigelow v. Virginia, supra. And commercial speech serves to inform the public of the availability, nature, and prices of products--and services, and thus performs an indispexisr.  able role in the allocation of resources in a free enterprise system. See FTC v. Procter & Gamble Co. (1967), 386 U. S. 568, 603-604 (Harlan, J., concurring). In short, such speech serves individual and societal interests in assuring informed and reliable decision making. 425 U. S., at 761-765. Arrayed against these substantial interests in the free flow of commercial speech were a number of proffered justifications for the advertising ban. Central among them were claims that the ban was essential to the maintenance of professionalism among licensed pharmacists. It was asserted that advertising would create price competition that might cause the pharmacist to economize at the customer’s expense. He might reduce or eliminate the truly professional portions of his services: the maintenance and packaging of drugs so as to assure their effectiveness, and the supplementation on occasion of the prescribing physician’s advice as to use. Moreover, it was said, advertising would cause consumers to price-shop, thereby undermining the pharmacist’s effort to monitor the drug use of a regular customer so as to ensure that the prescribed drug would not provoke an allergic reaction or be incompatible with another substance the customer was consuming. Finally, it was argued that advertising would reduce the image of the pharmacist as a skilled and specialized craftsman — an image that was said to attract talent to the profession and to reinforce the good habits of those in it — to that of a mere shopkeeper. Id., at 766-768. Although acknowledging that the state , had a strong interest in maintaining professionalism among pharmacists, this court concluded that the proffered justifications were inadequate to support the advertising ban. High professional standards were assured in large part by the close regulation to which pharmacists in Virginia were subject. Id., at 768. And we observed that “on close inspection it is seen that the state’s protectiveness of its eitizens rests in large part on the advantages of their being kept in ignorance.” Id., at 769. But we noted the presence of a potent alternative to this “highly paternalistic” approach: “That  alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Id., at 770. The choice between the dangers of suppressing information and the dangers arising from its free flow was seen as precisely the choice “that the First Amendment makes for us.” Ibid. See also Linmark Associates, Inc. v. Willingboro (1977), - U. S. -, -. We have set out this detailed summary of the Pharmacy opinion because the conclusion that Arizona’s disciplinary rule is violative of the First Amendment might be said to flow a fortiori from it. Like the Virginia statutes, the disciplinary rule serves to inhibit the free flow of commercial information and to keep the public in ignorance. Because of the possibility, however, that the differences among professions might bring different constitutional considerations into play, we specifically reserved judgment as to other professions. 17 In the instant case we are confronted with the arguments directed explicitly toward the regulation of advertising by licensed attorneys.
+The issue presently before us is a narrow one. First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims probably are not susceptible to precise measurement or verification and, under some circumstances,  might well he deceptive or misleading. to the public, or even false. Appellee does not suggest, nor do we perceive, that appellants’ advertisement contained claims, extravagant or otherwise, as to the quality of services. Accordingly, we leave that issue for another day. Second, we also need not resolve the problems associated with in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence— by attorneys or their agents or “runners.” Activity of that kind might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising. Hence, this issue also is not before us. Third, we note that appellee’s criticism of advertising by attorneys does not apply with much force to some of the basic factual content of advertising: information as to the attorney’s name, address, and telephone number, office hours, and the like. The American Bar Association itself has a provision in its current Code of Professional Responsibility that would allow the disclosure of such information, and more, in the classified section of the telephone directory. DR 2-102(A) (6) (1976). 18 We recognize, however,  that an .advertising diet'limited, to such spartan fare .would provide scant nourishment. , . The heart of the dispute before us today is whether lawyers also may constitutionally advertise , the prices at which certain routine services will he performed. Numerous justifications are proffered for the' restriction of such price advertising. We consider each in turn: 1. The Adverse Effect on Professionalism. Appellee places particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the. sense of pride that involvement in the discipline generates.. It is claimed that price advertising will bring about commercialization, which will undermine the attorney’s sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession’s service orientation, and irreparably damage the delicate balance between the lawyer’s need to earn and his obligation selflessly to serve. Advertising is also said to erode the client’s trust in his attorney: once the client perceives that the lawyer is motivated by profit, his confidence that the attorney is acting out of a commitment to the client’s welfare is jeopardized. And advertising is. said to tarnish the dignified public image of the profession. We recognize, of course, and commend the spirit of public service with which the profession of law is prac  ticed and to which it is dedicated. The present members of this court, licensed attorneys all, could not feel otherwise. And we would have reason to pause if we felt that our decision today would undercut that spirit. But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-reception. 19 And rare is the client, moreover, even one of modest means, who enlists the aid of an attorney with the expectation that his services will he rendered free of charge. See B. Christensen, Lawyers for People of Moderate Means 152-153 (1970). In fact, the American Bar Association advises that an attorney should reach “a clear agreement with his client as to the basis of the fee charges to be made,” and that this is to be done “[a]s soon as feasible after a lawyer has been employed.” Code of Professional Responsibility, EC 2-19 (1976). If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office. Moreover, the assertion that advertising will diminish the attorney’s reputation in the community is open to question. Bankers and engineers advertise, 20 and yet these  professions áre not regarded as undignified. In fact, it has been suggested that the failure of lawyers to advertise creates public disillusionment with the profession. 21 The absence of advertising may be seen to reflect the profession’s failure to reach out and serve the community: studies reveal that many persons do not obtain counsel even when they perceive a need because of the feared price of services 22 or because of an inability to locate, a competent at-tórney.  23 Indeed,, cynicism with: regard to' the profession máy be created by the ¡fact that it long has.publiclyeschewed advertising,, while condoning .the actions of the-attorney who.structures his social.orcivic associations so as to.provide, contacts with potential, clients. . It. appears that;the ban. on .'advertising originated, as a rule, of etiquette and not' as a rule of ethics. Early lawyers in Britain viewed the law as a form of public service,- rather than as a means of earning a living, and they looked down on. “trade” as . unseemly. ' See H.' Drinker, Legal Ethics 5, 210-211 (1953). 24 Eventually, the attitude toward  advertising fostered by-this view evolved into an'aspect of the ethics of the profession. Id., at 211.: But habit and tradition aré not in themselves an adequate answer to a constitutional challenge. In this day, we -do hot- belittle the person who earns his living by the strength of his arki or the force of his mind. Since the belief that lawyers are somehow “above” trade has become an anachronism, the historical foundation for the advertising restraint has crumbled. , . 2. The Inherently Misleading Nature of Attorney Advertising. • It is argued that advertising of legal services inevitably will be misleading (a) because such services aré so individualized with regard to content and quality as' to prevent informed comparison on the basis of an advertisement, (b) because the consumer of legal servicés is unáblé to determine in advance just what services he needs, and (c) because advertising by attorneys will highlight irrelevant factors and'fail to show the relevant factor of skill. We are not persuaded that restrained professional advertising by lawyers inevitably will be misleading. Although many services performed by attorneys are indeed unique, it is doubtful that any attorney would or could advertise fixed prices for services of that type. 25 The. only services that lend themselves to advertising are the roii-  tine ones: the uncontested divorce, the simple adoption, the uneontested personal bankruptcy, the change of name, and the like — the very services advertised by appellants. 26 Al-through the precise service demanded in each task may vary slightly, and although legal services are not fungible, these facts do not make advertising misleading so long as the attorney does the necessary work at the advertised price. 27 The argument that legal services are so unique that fixed rates cannot meaningful be established is refuted by the record in this case: the appellee State Bar itself sponsors a Legal Services Program in which the participating attorneys agree to perform services like those advertised ,by the appellants at standardized rates. App. 459-478. Indeed, until the decision of this court in Goldfarb v. Virginia State Bar (1975), 421 U. S. 773, the Maricopa County Bar Association apparently had a schedule of suggested minimum fees for standard legal tasks. App. 355. We thus find of little force the assertion that advertising is misleading because of an inherent lack of standardization in legal services. 28  • The second component of the argument — that advertising ignores the diagnostic role — fares little better. 29 It is unlikely that many people go to an attorney merely to-' ascertain if they have a clean bill of legal health. Bather, attorneys are likely to be employed to perform specific tasks. Although thé client may not know the detail involved in performing the task, he no doubt is able to identify the service he desires at the level of generality to whieh advertising lends itself. The third component is not without merit: advertising does not provide a complete foundation on which to select an attorney. But it seems peculiar to deny the consumer, on the ground that the information is incomplete, at least some of the relevant information needed to reach an. informed decision. The alternative — the prohibition-;of advertising — serves only to restrict the information that flows to consumers. 30 Moreover, the argument assumes that  the ¡public is not sophisticated enough to realize the limitations of advertising, and that the public , is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 769-770. Although, of course, the bar retains the power to correct omissions that have the. effect of presenting an inaccurate picture, the preferred ■remedy is more disclosure, rather than less'.. If the naivete of the public will cause advertising by attorneys to be misleading, then it is the bar’s role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective. . 3. The Adverse'Effect on the Administration of Justice. . Advertising is said to have the undesirable effect of stirring up litigation. 31 The judicial machinery is designed  to serve those who feel sufficiently aggrieved to bring forward their claims. Advertising, it is argued, serves to encourage the assertion of legal rights in the courts, thereby undesirably unsettling societal repose. There is even a suggestion, of barratry. See, e. g., Comment, A Critical Analysis of Buies Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674, 675-676 (1958). But advertising by attorneys- is not an unmitigated source of harm to the administration of justice.- - It may offer great benefits. Although advertising might increase the use of,the judicial Ímachinery, we. cannot -accept the notion that it is always' better for a person to suffer' a wrong silently than to redress it by legal action. 32 As the bar acknowledges, “the middle 70% of our population is not being reached or served adequately by the legal profession.” American Bar Association, Bevised Handbook on Prepaid Legal Services: Papers and Documents Assembled by the Special Committee on Prepaid Legal Services 2 (1972). 33 Among the reasons for this underutiliza-  tioh is. fear of the cost, and an inability to locate a suitable lawyer. See nn. 22 and 23, supra. Advertising can help to solve this acknowledged problem: advertising is the traditional mechanism in a free-market ■ economy for a supplier to inform a potential purchaser of the. availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable. A rule allowing restrained advertising would be in accord with the bar’s obligation to “facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.” American Bar Association, Code of Professional Responsibility EC 2-1 (1976). 4.' The Undesirable Economic Effects of Advertising. It is claimed that advertising will increase the overhead costs of the profession, and that these costs then will be passed along to consumers in the form of increased fees. Moreover, it is claimed that the additional' cost of practice will create a substantial entry barrier, deterring or preventing young attorneys from penetrating the market and entrenching the position of the bar’s established members. These two arguments seem dubious at best. Neither distinguishes lawyers from others, see Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 768, and neither appears relevant to the First Amendment. The ban on advertising serves to increase the difficulty of discovering the lowest-cost seller of acceptable ability. As a result, to this extent attorneys are isolated from competition, and the incentive to price competitively is reduced: Although it is true that the effect of advertising on the price of services has not been demonstrated, there is rer vealing evidence with regard to products; where consumers have the benefit of price advertising, retail prices often are dramatically lower than they would be without advertising. 34 It is entirely possible that advertising will serve to  reduce, not advance, the cost of legal services to the consumer. 35 The entry barrier argument is equally unpersuasive. In the absence of advértising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry-barrier problems would urge that advertising be allowed so as to aid the new competitor in pentrating the market. 5. The Adverse Effect of Advertising on the Quality of Service. It is argued that the attorney may advertise a given “package” of service at a set price, and will be.inclined to provide, by indiscriminate use, the standard .package regardless of whether it fits the client’s needs, Restraints on advertising, however, are an ineffective way of deterring shoddy work. An attorney who is inclined to cut quality wifi do so regardless of the rule on advertising. And the advertisement of a standardized fee does not necessarily mean that the services offered are undesirably standardized. Indeed, the assertion that an at-  tprney who advertises a standard fee will cut quality, is substantially undermined by the fixed fee schedule of. ap-pellees’ own prepaid Legal Services. Program. Even if advertising leads to the creation of “legal clinics” like that of appellants’ — clinics that emphasize standardized .procedures for routine problems — it is possible that such clinics , will improve service by reducing the likelihood of error. 6. The Difficulties of Enforcement. Finally, it is argued that the wholesale restriction is justified by the problems of enforcement if any other course is taken.. Because the public lacks sophistication in legal matters, it may be particularly susceptible to misleading or deceptive advertising by lawyers. After-the-fact action by the consumer lured by such advertising may not provide a realistic restraint bécause of the inability of the layman to assess whether the service he has received meets professional standards. Thus, the vigilance of a regulatory agency will be required. But because of the numerous purveyors of services, the overseeing of advertising will be burdensome. It is at least somewhat incongruous for the opponents of advertising to extol the virtues and altruism of the legal profession at one point, and, at another, to assert that its members will seize the opportunity to mislead and distort. We suspect that, with advertising, most lawyers will behave as they always have: they will abide by their solemn oaths to uphold the integrity and honor of their profession and of the legal system. For every attorney who overreaches through advertising, there will be thousands of others who will be candid and honest and straightforward. And, of course, it will be in the latters’ interest, as in other cases of misconduct at the bar, to assist in weeding out those few who abuse their trust. In sum, we are not persuaded that any of the proffered justifications rises tq. the level of an acceptable reason for the suppression of all advertising by attorneys.
+In the usual case involving a restraint on speech, a showing that the challenged rule served unconstitutionally  to suppress speeeh would end our analysis. In the First Amendment context, the court has permitted attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected. See, e. g., Bigelow v. Virginia (1975), 421 U. S. 809, 815-816; Gooding v. Wilson (1972), 405 U. S. 518, 521-522; Dombrowski v. Pfister (1965), 380 U. S. 479, 486. Having shown that the disciplinary rule interferes with protected speech, appellants ordinarily could expect to benefit regardless of the nature of their acts. The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. See, e. g., Broadrick v. Oklahoma (1973), 413 U. S. 601, 610; United States v. Raines (1960), 362 U. S. 17, 21; Ashwander v. TV A (1936), 297 U. S. 288, 347 (Brandeis, J., concurring). The reason for the special rule in First Amendment eases is apparent: an overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and á person who contemplates protected activity might be discouraged by the in terrorem effect of the statute. See NAACP v. Button (1963), 371 U. S. 415, 433. Indeed, such a person might choose hot to speak because of uncertainty whether his claim of privilege would prevail if challenged. The use of overbreadth analysis refleets the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speeeh will be muted. But the justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context. As was acknowledged in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 771 n. 24, there are “eómmónsensé differences” between commercial speeeh and other varieties. See also id., at 775-781 (concurring opinion). Since advertising is' linked to commercial well-being, it seems Unlikely that such speeeh is par  ticularly susceptible to being crushed by overbroad regulation, See id., at 722-723, n. 24. Moreover, concerns for uncertainty in determining the scope of protection are reduced; the advertiser seeks to disseminate information about a product or service that he provides, and presumably he can determine more readily than others whether his. speech is truthful and protected. Ibid. Since over-breadth has been described by this court as “strong medicine,” which “has been employed    sparingly and only as a last resort,” Broadrick v. Oklahoma, 413 U. S., at 613, we decline to apply it to professional advertising, a context where it is not necessary to further its intended objective. Cf. Bigelow v. Virginia, 421 U. S., at 817-818. Is, then, appellants’ advertisement outside the scope of basic First Amendment protection? Aside from general claims as to the undesirability of any advertising by attorneys, a matter considered above, appellee argues that appellants’ advertisement is misleading, and hence unprotected, in three particulars: (a) the advertisement makes reference to a “legal clinic,” an allegedly undefined term; (b) the advertisement claims that appellants offer services at “very reasonable” prices, and, at least with regard to an uncontested divorce, the advertised price is not a bargain; and (c) the advertisement does not inform the consumer that he may obtain a name change without the services of an attorney. Tr. of Oral Arg. 56-57. On this record, these assertions are unpersuasive. We suspect that the public would readily understand the term “legal clinic” — if, indeed, it focusd on the term at all — to refer to an operation like that of appellants’ that is geared to provide standardized and multiple services. In fact, in his deposition the president of the State Bar of Arizona observed that there was a committee of the bar “exploring the ways in which the legal clinic concept can be properly developed.” App. 375; see id., at 401. See also id., at 84-85 (testimony of appellants). And the clinical concept in the sister profession of medicine surely by now is publicly acknowledged and understood. As to the cost of an uncontested divorce, appellee stat  ed at oral argument that this runs from $150 to $300 in the area. Tr. of Oral Arg. 58. Appellants advertised a fee of $175 plus a $20 court filing fee, a rate that seems “very reasonable” in light of the customary charge. Ap-pellee’s own Legal Services Program sets the rate for an nncontested divorce at $250. App. 473. Of course, advertising will permit the comparison of rates among competitors, thus exposing if the rates are reasonable. As to the final argument — the failure to disclose that a name change might be accomplished by the client without the aid of an attorney — we need only note that most legal services may be performed legally by the citizen for himself. See Faretta v. California (1975), 422 U. S. 806; American Bar Association, Code of Professional Responsibility EC 3-7 (1976). The record does not unambiguously reveal some of the relevant facts in determining whether the nondisclosure is misleading, such as how complicated the procedure is and whether the state provides assistance for laymen. The deposition of one appellant, however, reflects that when he ascertained that a name change required only the correction of a record or the like, he frequently would send the client to effect the change himself. 36 App. 112. We conclude that it has not been demonstrated that the advertisement at issue could be suppressed.",Ill TheFirstAmendment
+746,7268275,1,1,"Congress amended § 2253 to its current form in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In its entirety, the section reads as follows: “(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. “(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. [565 U.S. 156] “(c)(1) Unless a circuit justice or judge issues a certificate of appeal-ability, an appeal may not be taken to the court of appeals from— “(A) the final order in a habeas corpus proceeding in which the de  tention complained of arises out of process issued by a State court; or “(B) the final order in a proceeding under section 2255. “(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. “(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).” As the Court acknowledges, ante, at 142, 181 L. Ed. 2d, at 631, all three subsections—(a), (b), and (c)—clearly speak to the jurisdiction of the courts of appeals. Subsection (a) gives appellate jurisdiction to “the court of appeals for the circuit in which the proceeding is held”; subsection (b) carves out certain classes of cases from that appellate jurisdiction; and subsection (c) imposes a procedural hurdle to the exercise of that appellate jurisdiction—a judge’s issuance of a certificate of appealability, see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). Paragraph 2253(c)(3) says that a certificate of appealability (or COA) must “indicate” which issue or issues in the case involve a substantial showing of a constitutional violation. Everyone agrees that the certificate issued below contains no such indication. See ante, at 141, 181 L. Ed. 2d, at 630. It appears, in fact, that the issuing judge never considered whether any of Gonzalez’s constitutional claims satisfied paragraph (2). As far as we know, no federal judge has ever determined that Gonzalez “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). The Court does not even suggest that he has—but it goes on to decide the statute-of-limitations issue in the case. Its basis for proceeding in this fashion is the remarkable statement that “[a] defective COA is not equivalent to the [565 U.S. 157] lack of any COA.” Ante, at 143, 181 L. Ed. 2d, at 632. That is simply not true with respect to a significant defect in a legal document. Would one say that a deed which lacks the words of conveyance is not equivalent to the lack of a deed? Or that a passport which lacks the Secretary of State’s affirmance of the bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defect that goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-of-appealability procedure is to make sure that, before a case can proceed to the court of appeals, a judge has made the determination that it presents a substantial showing of the denial of a constitutional right. To call something a valid certificate of appealability which does not contain the central finding that is the whole purpose of a certificate of appealability is quite absurd. The Court says that “[o]nce a judge has made the determination that a COA is warranted and resources are deployed in briefing and argument, . . . the COA has fulfilled [its] gate-keeping function.” Ante, at 145, 181 L. Ed. 2d, at 633. But of course it has not done so—it has performed no gate-keeping function whatever—if “the determination that a COA is warranted” has not been accompanied by the issuing judge’s opinion required to support the determination: that there is an issue as to which the applicant  has made a “substantial showing of the denial of a constitutional right,” § 2253(c)(2). As the very next sentence of today’s opinion discloses, what the Court means by “has fulfilled [its] gatekeeping function” is simply that it will not be worth the trouble of going back, since that would “not outweigh the costs of further delay,” ibid. That is doubtless true, and it demonstrates the hollowness of the Court’s assurance that “calling a rule nonjurisdictional does not mean that it is not mandatory or that a timely objection can be ignored,” ante, at 146, 181 L. Ed. 2d, at 633. That statement is true enough as a general proposition: Calling the numerosity requirement in Arbaugh v.Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006), nonjurisdictional, for example, did not eliminate it, where [565 U.S. 158] protest was made, as a continuing mandatory requirement for relief on the merits, id., at 516, 126 S. Ct. 1235, 163 L. Ed. 2d 1097. Even the time-of-filing requirement in Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005) (per curiam), continued to have “bite” even though it was held nonjurisdictional: It prevented relief when the failure to observe it was properly challenged, id., at 19, 126 S. Ct. 403, 163 L. Ed. 2d 14. But the Court has managed to create today a “mandatory” requirement which—precisely because it will not be worth the trouble of going back—has no practical, real-world effect. 1 What is the consequence when the issuing judge, over properly preserved objection, produces a COA like the one here, which does not contain the required opinion? None whatever. The habeas petitioner already has what he wants, argument before the court of appeals. The government, for its part, is either confident in its view that there has been no substantial showing of denial of a constitutional right—in which case it is just as easy (if not easier) to win before three judges as it is before one; or else it is not—in which case a crusade to enforce § 2253(c) is likely to yield nothing but additional litigation expenses. As for the three-judge panel of the court of appeals, it remains free, as always, to choose whichever mandatory-but-not-jurisdictional basis it wishes for resolving the case. Cf. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 93-94, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998). Why not choose the one that is sure to be final and that might avoid embarrassing a colleague? No one has any interest in enforcing the “mandatory” requirement. Which is perhaps why, as I proceed to discuss, mandatory requirements for court-to-court appeal are always made jurisdictional. [565 U.S. 159] Past Treatment of Similar Provisions As the Court acknowledges, “ ‘context, including this Court’s interpretation of similar provisions in many years past, is relevant to whether a statute ranks a requirement as jurisdictional.’” Ante, at 142, n. 3, 181 L. Ed. 2d, at 631 (quoting Reed Elsevier,  Inc. v. Muchnick, 559 U.S. 154, 168, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010)). Thus, we have said that a requirement prescribed as a condition to obtaining judicial review of agency action is quite different (nonjurisdic-tional) from a requirement prescribed as a condition to appeal from one court to another (jurisdictional). See Henderson, 562 U.S., at 434, 131 S. Ct. 1197, 179 L. Ed. 2d 159. We have always—always, without exception— held that procedural conditions for appealing a case from one Article III court to another are jurisdictional. When an appeal is “not taken within the time prescribed by law,” the “Court of Appeals [is] without jurisdiction.” George v. Victor Talking Machine Co., 293 U.S. 377, 379, 55 S. Ct. 229, 79 L. Ed. 439 (1934) (per curiam); see also United States v. Robinson, 361 U.S. 220, 229-230, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960). When a party’s name is not listed in the notice of appeal, as the F ederal Rules of Appellate Procedure require, the court has no jurisdiction over that party’s appeal. Torres v. Oakland Scavenger Co., 487 U.S. 312, 314-315, 108 S. Ct. 2405, 101 L. Ed. 2d 285 (1988). When this Court reviewed cases by writ of error, the law required that the lower-court record be filed with the Court “before the end of the term next succeeding the issue of the writ.” Edmonson v. Bloomshire, 7 Wall. 306, 309, 19 L. Ed. 91 (1869). The Court routinely dismissed cases that did not comply with that requirement. See, e.g., Mesa v. United States, 2 Black 721, 722, 17 L. Ed. 350 (1863) (per curiam); Edmonson, supra, at 309-310, 19 L. Ed. 91; Steamer Virginia v. West, 19 How. 182, 183, 15 L. Ed. 594 (1857). The same jurisdictional treatment was accorded to failure to serve notice on the defendant in error within the succeeding Term, see, e.g., United States v. Curry, 6 How. 106, 112-113, 12 L. Ed. 363 (1848); Villabolos v. United States, 6 How. 81, 88, 91, 12 L. Ed. 352 (1848), and to failure to file the writ of error with the clerk of the lower court, see, e.g., Credit Co. v. Arkansas Central R. Co., 128 U.S. 258, 261, 9 S. Ct. 107, 32 L. Ed. 448 (1888); Scarborough v. Pargoud, 108 U.S. [565 U.S. 160] 567, 2 S. Ct. 877, 27 L. Ed. 824 (1883). Today, when a petition for cer-tiorari in a civil case is not filed within the time prescribed by 28 U.S.C. § 2101(c), this Court lacks jurisdiction. Federal Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 90, 115 S. Ct. 537, 130 L. Ed. 2d 439 (1994) (citing Missouri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990)); see also Matton S.S. Co. v. Murphy, 319 U.S. 412, 415, 63 S. Ct. 1126, 87 L. Ed. 1483 (1943) (per curiam). 2 So strict has been the rule enforcing as jurisdictional those requirements attached to court-from-court appeals, that we have applied it to a requirement contained in a statute not even addressed to the courts. Section 518(a) of Title 28 charges the Solicitor General with “conducting] and arguing] suits and appeals in the Supreme Court ... in which the United  States is interested.” We held that, absent independent statutory authority, an agency’s petition for certiorari filed without authorization from the Solicitor General does not suffice to invoke our jurisdiction. NRA Political Victory Fund, supra, at 98-99, 115 S. Ct. 537, 130 L. Ed. 2d 439. 3 Jurisdictional enforcement of procedural requirements for appeal has deep roots in our jurisprudence. Chief Justice [565 U.S. 161] Taney dismissed an appeal in which the citation was not issued and served in time, because “we have no power to receive an appeal in any other mode than that provided by law.” Villabolos, supra, at 90, 12 L. Ed. 352. And Chief Justice Chase wrote, in a case dismissing an appeal for failure to file in time: “In the Judiciary Act of 1789, and in many acts since, Congress has provided for [appellate courts’] exercise [of jurisdiction] in such cases and classes of cases, and under such regulations as seemed to the legislative wisdom convenient and appropriate. The court has always regarded appeals in other cases as excepted from the grant of appellate power, and has always felt itself bound to give effect to the regulations by which Congress has prescribed the manner of its exercise.” Castro v. United States, 3 Wall. 46, 49, 18 L. Ed. 163 (1866). Jurisdictional Nature of Predecessor Provision But similarity to a general type of provision that has always been held jurisdictional is not all that supports the jurisdictional character of § 2253(c)(3). Its very predecessor statute made a judge’s expression of opinion a condition of appellate jurisdiction. The certificate of probable cause, of which the COA was born, arrived on the scene over 100 years ago in “An Act Restricting in certain cases the right of appeal to the Supreme Court in habeas corpus proceedings,” Act of Mar. 10, 1908, ch. 76, 35 Stat. 40: “[F]rom a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court no appeal to the Supreme Court shall be allowed unless the United States court by which the final decision was rendered or a justice of the Supreme Court shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the [565 U.S. 162] same, the said court or justice shall certify that there is probable cause for such allowance.” The last version of this statute, before it was amended to its current form in AEDPA, provided for issuance of the certificate of probable cause by a circuit judge instead of a justice. See § 2253, 62 Stat. 967 (codified at 28 U.S.C. §2253 (1946 ed., Supp. II)). Even applying the Court’s simplistic rule that the jurisdictional restriction must be contained in the very same paragraph as the procedural requirement, there is no doubt that under this statute a  judge’s certification that there was probable cause for an appeal was jurisdictional. See, e.g., Ex parte Patrick, 212 U.S. 555, 29 S. Ct. 686, 53 L. Ed. 650 (1908) (per curiam); Bilik v. Strassheim, 212 U.S. 551, 29 S. Ct. 649, 29 S. Ct. 684, 53 L. Ed. 649 (1908) (per curiam). There is no reason whatever to think that Congress rendered the statement of opinion unnecessary for jurisdiction by (1) extending the requirement for it to § 2255 proceedings; (2) requiring the opinion to address a more specific point (not just probable cause for an appeal but presence of an issue presenting a “substantial showing of the denial of a constitutional right”); 4 and (3) giving the document in which the judge is required to express the opinion a name (“certificate of appealability”)—so that now a “certificate of appealability” without opinion will suffice. Neither any one of these steps, nor all of them combined, suggest elimination of jurisdictional status for the required expression of opinion. 5 [565 U.S. 163] It would be an entirely strange way of achieving that result. It was not a strange way, however, of dividing the now more complex and lengthy provision into manageable subsections. Stare Decisis Effect of Torres In addition to the fact that conditions attached to court-to-court appeal have always been held jurisdictional, and the fact that this statute’s predecessor was held to be so, we have considered, and found to be jurisdictional, a statute presenting precisely what is at issue here: a provision governing court-to-court appeals which made particular content a required element of a document that the statute said was necessary for jurisdiction; and which did that in a separate section that “excluded the jurisdictional terms,” ante, at 145, 181 L. Ed. 2d, at 633. That case flatly contradicts today’s holding. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S. Ct. 2405, 101 L. Ed. 2d 285, we dealt with Rule 3(c)(1) of the F ederal Rules of Appellate Procedure. Rule 3(a) of those Rules makes a notice of appeal necessary to appellate jurisdiction—just as § 2253(c)(1) makes a certificate of appealability necessary. And Rule 3(c)(1), which, like § 2253(c)(3), does not contain jurisdictional language, says what the requisite notice of appeal must contain—just as § 2253(c)(3) says what the requisite certificate of appealability must contain: “The notice of appeal must:  “(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice . . . ; “(B) designate the judgment, order, or part thereof being appealed; and “(C) name the court to which the appeal is taken.” [565 U.S. 164] In Torres we held that the Court of Appeals lacked jurisdiction over the appeal of a party not properly named in the notice of appeal. 487 U.S., at 314-315, 108 S. Ct. 2405, 101 L. Ed. 2d 285. The parallel is perfect. The Court claims that the jurisdictional consequences of Rule 3(c) were “ ‘ “imposed by the legislature,” ’ ” ante, at 147, 181 L. Ed. 2d, at 634 (quoting Torres, supra, at 318, 108 S. Ct. 2405, 101 L. Ed. 2d 285), which according to the Court’s analysis “‘clearly state[d],’” ante, at 141, 181 L. Ed. 2d, at 631 (quoting Arbaugh, 546 U.S., at 515, 126 S. Ct. 1235, 163 L. Ed. 2d 1097), that Rule 3(c) is jurisdictional. But the Legislature there did precisely what it did here: made a particular document necessary to jurisdiction and then specified what that document must contain. 6 I certainly agree that that is a clear statement that a document with the requisite content is necessary to jurisdiction. But the Court does not. So to distinguish Torres it has to find something else in Rule 3(c) that provided a “clear statement” of what “Congress intended,” ante, at 142, 181 L. Ed. 2d, at 631. The best it can come up with, ante, at 147, 181 L. Ed. 2d, at 634, is an unclear statement, and that not from Congress but from Advisory Committee Notes referred to in the Torres opinion. Such Notes are (of course) “the product of the Advisory Committee, and not Congress,” and “they are transmitted to Congress before the rule is enacted into law.” United States v. Vonn, 535 U.S. 55, 64, n. 6, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002). They are, in other words, a species of legislative history. I know [565 U.S. 165] of no precedent for the proposition that legislative history can satisfy a clear-statement requirement imposed by this Court’s opinions. Does today’s distinguishing of Torres mean that legislative history can waive the sovereign immunity of the United States? See United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992). Or abrogate the sovereign immunity of the States? See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985). Or give retroactive effect to new legislation? See Greene v. United States, 376 U.S. 149, 160, 84 S. Ct. 615, 11 L. Ed. 2d 576 (1964). Or foreclose review of agency actions? See Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Today��s opinion is in this respect a timebomb.  To make matters worse, the Advisory Committee Note considered by the Torres Court—as “support for [its] view,” 487 U.S., at 315, 108 S. Ct. 2405, 101 L. Ed. 2d 285—did not clearly say that Rule 3(c)’s requirements were jurisdictional. It said this: “ ‘Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is “mandatory and jurisdictional,” United States v. Robinson, 361 U.S. 220, 224 [80 S. Ct. 282, 4 L. Ed. 2d 259] (1960), compliance with the provisions of those rules is of the utmost importance.’” Id., at 315, 108 S. Ct. 2405, 101 L. Ed. 2d 285 (quoting 28 U.S.C. App., p. 467 (1982 ed.); brackets omitted; emphasis added). To say that timely filing of a notice of appeal is jurisdictional, and that placing within the notice of appeal what Rule 3 says it must contain is “of the utmost importance,” does not remotely add up to a clear statement that placing within the notice of appeal what Rule 3 says it must contain is jurisdictional. There is simply no principled basis for saying that Torres satisfies the “clear-statement principle,” ante, at 142, 181 L. Ed. 2d, at 631, except the commonsense notion that when a document is [565 U.S. 166] made jurisdictional, and the required contents of that document specified, a document that does not contain those contents cannot confer jurisdiction. 7 The Court is not willing to say that Torres is no longer good law, but I doubt whether future litigants will be so coy. They know that in the past, to avoid the uncongenial rigidity of the rule that procedures attending court-to-court appeals are jurisdictional, we have performed wondrous contortions to find compliance with those rules. For example, in Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 116 L. Ed. 2d 678 (1992), we held that an “informal brief’ filed after a defective notice of appeal counted as a valid notice of appeal. In Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), we held that a notice of appeal from the denial of a motion to vacate the judgment was also a notice of appeal from the underlying judgment. And in Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), we held that a prisoner’s notice of appeal was “filed” when it was delivered to prison authorities for forwarding to the District Court. These (shall we say) creative interpretations of the procedural requirements were made necessary by the background principle that is centuries old: “ [I]f the mode prescribed for removing cases by writ of error or appeal be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy by altering the existing laws; not for the court.” Curry, 46 How., at 113, 12 L. Ed. 363. But if we have been willing to expose ourselves to ridicule in order to approve implausible compliance with procedural pre  requisites to appeal, surely we may be willing to continue and expand the process [565 U.S. 167] of simply converting those obnoxious prerequisites into the now favored “claims processing rules,” enabling us to avoid unseemly contortions by simply invoking the ever-judge-friendly principles of equity. What began as an effort to “ ‘bring some discipline’ to the use of the term ‘jurisdictional,’ ” ante, at 141, 181 L. Ed. 2d, at 630 (quoting Henderson, 562 U.S., at 435, 131 S. Ct. 1197, 179 L. Ed. 2d 159), shows signs of becoming a libertine, liberating romp through our established jurisprudence.",Fair Meaning of the Text
+747,8164944,1,2,"55 Stat. 622, as amended, 42 U. S. C. § 1651 (1). II. Statutes employing the phrase “places subject to the jurisdiction of the United States” or similarly sweeping language: 38 Stat. 270, as amended, 12 U. S. C. § 466; 58 Stat. 624, as amended, 10 U. S. C. Supp. I, § 1213; 56 Stat. 176, 15 U. S. C. § 606b-2 (a); 61 Stat. 512, 16 U. S. C. Supp. I, § 776a (c); 40 Stat. 231, 18 U. S. C. § 39; 35 Stat. 1136, 18 U. S. C. § 387; 35 Stat. 1138, as amended, 18 U. S. C. § 396; 54 Stat. 1134, as amended, 18 U. S. C. § 396a; 49 Stat. 494, 18 U. S. C. § 396b; 35 Stat. 1148, 18 U. S. C. §511; 40 Stat. 559, as amended, 22 U. S. C. § 226; 42 Stat. 361, 22 U. S. C. § 409; 52 Stat. 631, as amended, 22 U. S. C. § 611 (m) ; 58 Stat. 643, 22 U. S. C. § 701; 32 Stat. 172, as amended, 46 U. S. C. §95; Rev. Stat. § 4438a, as amended, 46 U. S. C. § 224a (6); 35 Stat. 1140, 46 U. S. C. § 1351; 40 Stat. 217, 219, as amended, 50 U. S. C. §§31, 37; 54 Stat. 1179, 50 U. S. C. App. §512; 56 Stat. 177, as amended, 50 U. S. C. App. § 633 (4), (6); 56 Stat. 185, 50 U. S. C. App. § 643a; 58 Stat. 624, 50 U. S. C. App. §777; 56 Stat. 390, 50 U. S. C. App. §781; 60 Stat. 211, 50 U. S. C. App. § 1828 (c). The following tabulation of statutes whose coverage provisions are so similar to those being construed as to either be governed by today’s decision or to require most sophisticated distinctions shows in what a network of legislation the Court is entangling the bases:",Statutes which explicitly cover the leased bases:
+748,8164944,1,3,"(a) in the phrase “States, Territories, and Possessions” or the like: 43 Stat. 1070, as amended, 2 U. S. C. § 241 (i); 42 Stat. 998, 7 U. S. C. § 3; 42 Stat. 159, 7 U. S. C. § 182 (6); 49 Stat. 731, 7 U S. C. § 511 (i); 30 Stat. 544, as amended, 11 U. S. C. § 1 (10); 48 Stat. 2, 12 U. S. C. § 202; 39 Stat. 601, as amended, 61 Stat. 786, 14 U. S. C. Supp. I, §29; 55 Stat. 11, 12, as amended, 14 U. S. C. Supp. I,  §§302, 307; 48 Stat. 882, as amended, 15 U. S. C. §78 (c) (16); 54 Stat. 790, 15 U. S. C. § 80a-2 (37); 44 Stat. 1406, 15 U. S. C. § 402 (c); 44 Stat. 1423, 15 U. S. C. § 431; 47 Stat. 8, as amended, 61 Stat. 202, 15 U. S. C. Supp. I, § 607; 61 Stat. 515, 15 U. S. C. Supp. I, §619; 52 Stat. 1250, as amended, 15 U. S. C. §901 (2) ; 56 Stat. 1087, 18 U. S. C. § 420g (2); 42 Stat. 1486, 21 U. S. C. § 61 (b); 52 Stat. 1041, 21 U. S. C. § 321 (b); Int. Rev. Code §§22 (b) (4), 251, 252, 1621 (a) (8) (B), 813 (b); 49 Stat. 1928, 27 U. S. C. § 222 (a); 28 U. S. C. § 411 (a); 61 Stat. 150, 29 U. S. C. Supp. I, § 161 (2); 61 Stat. 86, 90, 29 U. S. C. Supp. I, §§ 252 (d), 262 (e); 29 U. S. C. App. Supp. I, § 203.7; 55 Stat. 179, 30 U. S. C. § 4o; 54 Stat. 1086, 31 U. S. C. § 123; Rev. Stat. § 3646, as amended, 31 U. S. C. § 528 (c); 61 Stat. 787, 33 U. S. C. Supp. I, §§ 883a, 883b; 44 Stat. 900, as amended, 39 U. S. C. § 654 (c); 49 Stat. 2038, 41 U. S. C. § 39; 58 Stat. 682, as amended, 42 U. S. C. § 201 (g); 49 Stat. 624, as amended, 42 U. S. C. § 405 (d); 50 Stat. 888, 42 U. S. C. § 1402 (12); 60 Stat. 774, 42 U. S. C. § 1818; 35 Stat. 65, 45 U. S. C. § 52; 52 Stat. 1107, as amended, 45 U. S. C. § 362; 45 Stat. 1492, as amended, 46 U. S. C. § 85; 49 Stat. 888,46 U. S. C. § 88; Rev. Stat. §4472, as amended, 46 U. S. C. § 170; Rev. Stat. §4370, 46 U. S. C. § 316 (a); 41 Stat. 996, as amended, 46 U. S. C. § 813; 39 Stat. 735, 46 U. S. C. §§ 819, 823, 826, 829; 40 Stat. 901, as amended, 46 U. S. C. § 835 (a), (d); 41 Stat. 998, 46 U. S. C. §§ 880, 882, 883; 41 Stat. 1003, 46 U. S. C. § 951; 49 Stat. 2016, 46 U. S. C. § 1244 (a), (b); 49 Stat. 1212, 46 U. S. C. § 1312; 48 Stat. 1065, as amended, 47 U. S. C. § 153 (e), (g); 48 Stat. 1084, 47 U. S. C. § 308 (c); 48 Stat. 1087, 47 U. S. C. §314; 44 Stat. 568, 572, 573, 49 U. S. C. §§ 171, 176 (e), 179; 52 Stat. 977, 979, 980, 984, 998, 49 U. S. C. §§401 (3), (21) (b), (29), (30), 425, 486; 40 Stat. 415, as amended, 50 U. S. C. App. § 5; 60 Stat. 50, as amended, 50 U. S. C. App. § 32 (a) (2) (B); 54 Stat. 890, as amended, 50 U. S. C. App. § 308; 61 Stat. 31, 32, 50 U. S. C. App. Supp. I, §§324, 326 (a) (2), (3); 54 Stat. 859, as amended, 50 U. S. C. Supp. I, § 403 (b) (A); 56 Stat. 777, 50 U. S. C. App. § 574; 59 Stat. 542, 50 U. S. C. App. § 639a; 56 Stat. 182, as amended, 50 U. S. C. App § 640; 55 Stat. 206, 50 U. S. C. App. § 702;  56 Stat. 461-62, 50 U. S. C. App. §§791, 792, 793, 801; 56 Stat. 1041, 50 U. S. C. App. § 846; 56 Stat. 23, as amended, 50 U. S. C. App. § 901; 56 Stat. 245, as amended, 50 U. S. C. App. § 1191 (i); 57 Stat. 162, as amended, 50 U. S. C. App. § 1472 (a) (A); (b) qualified, usually in a similar phrase, by the word “island” or “insular”: 54 Stat. 1137, 1139, 8 U. S. C. §§501 (e), 604; 59 Stat. 526, as amended, 12 U. S. C. Supp. I, § 635; 38 Stat. 730, 15 U. S. C. § 12; 48 Stat. 74, as amended, 15 U. S. C. § 77b (6); 61 Stat. 726, 16 U. S. C. Supp. I, § 758a; 56 Stat. 1046, 21 U. S. C. § 188d; 56 Stat. 1063, 22 U. S. C. § 672 (b); Int. Rev. Code §§ 2563, 2602, 2733 (g); 49 Stat. 2011, as amended, 46 U. S. C. § 1204; 40 Stat. 388, 50 U. S. C. § 137; 53 Stat. 812, 50 U. S. C. § 98f. II. Statutes listed under heading I above, the application of which to the leased bases might cause conflict with Bermudian law: 42 Stat. 998, as amended, 7 U. S. C. § 3 (Commodity Exchange Act); 42 Stat. 159, 7 U. S. C. § 182 (6) (Packers and Stockyards Act, 1921); 49 Stat. 731, 7 U. S. C. § 511 (i) (Tobacco Inspection Act); 54 Stat. 1139, 8 U. S. C. § 604 (Nationality Act of 1940); 59 Stat. 526, as amended, 12 U. S. C. Supp. I, § 635 (Export-Import Bank Act of 1945); 55 Stat. 11, 12, as amended, 14 U. S. C. Supp. I, §§ 302, 307 (Coast Guard Reserve Act); 38 Stat. 730, 15 U. S. C. §12 (Clayton Act); 42 Stat. 1486, 21 U. S. C. §61 (b) (Filled Milk Act); 56 Stat. 1063, 22 U. S. C. § 672 (b) (Settlement of Mexican Claims Act); Int. Rev. Code §§ 22 (b) (4), 813(b); 29 U. S. C. App. Supp. I, § 203.7 (Rules and Regulations implementing the National Labor Relations Act as amended by the Labor Management Relations Act); 49 Stat. 624, as amended, 42 U. S. C. § 405 (d) (Subpoena provision of the Federal Old-Age and Survivors Insurance Benefits Act); 50 Stat. 888, 42 U. S. C. § 1402 (Low Rent Housing Act); 60 Stat. 774, 42 U. S. C. § 1818 (Atomic Energy Act); 35 Stat. 65, 45 U. S. C. § 52 (Federal Employers’ Liability Act); 52 Stat. 1107, as amended, 45 U. S. C. § 362 (Railroad Unemp. Ins. Act) ; Rev. Stat. § 4370, as amended, 46 U. S. C. § 316 (a) (Act for the  Regulation of Vessels in Domestic Commerce); 41 Stat. 999, 46 U. S. C. § 883 (Merchant Marine Act, 1920); 49 Stat. 2017, 46 U. S. C. § 1244 (a) (Merchant Marine Act, 1936); 49 Stat. 1212, 46 U. S. C. § 1312 (Carriage of Goods by Sea Act); 48 Stat. 1065, 1084, 1087, as amended, 47 U. S. C. §§ 153 (e), (g), 308 (c), 314 (Communications Act of 1934); 44 Stat. 568, 572, 573, as amended, 49 U. S. C. §§ 171, 176 (c), 179 (b) (Air Commerce Act of 1926); 52 Stat. 977, 49- U. S. C. § 401 (3), (21) (b), (29), (30) (Civil Aeronautics Act); 52 Stat. 998, 49 U. S. C. § 486 (same); 56 Stat. 182, 50 U. S. C. App. § 640 (Amendment of Nationality Act of 1940); 55 Stat. 206, 50 U. S. C. App. § 702 (Exportation Restriction Act) ; 56 Stat. 23, as amended, 50 U. S. C. App. § 901 (Emergency Price Control Act of 1942). The State Department’s Legal Adviser, in a letter to the Attorney General dated January 30, 1948, wrote, in part, as follows: “The Department regards as unfortunate the conclusion of the Court [of Appeals] that the U. S. exercises as complete control in the leased areas as in other areas long known as ‘possessions’ of the U. S., and its specific reference in this connection to the Philip-  pme Islands, Swains Island, Samoa, Guam and the guano islands over all of which the U. S. exercises sovereignty, except the Philippines over which sovereignty was exercised until they were given their independence on July 4, 1946, and except the guano islands, over which, in general, the U. S. exercises exclusive jurisdiction and no other nation claims sovereignty. Any holding that the bases obtained from the Government of Great Britain on 99 year leases are ‘possessions’ of the United States in a political sense would not in the Department’s view be calculated to improve our relations with that Government. Moreover, such a holding might very well be detrimental to our relations with other foreign countries in which military bases are now held or in which they might in the future be sought. . . .” 33 Stat. 2234, 2235. Secretary Hughes to the Panamanian Minister, Oct. 15, 1923, 2 Hackworth, Digest of International Law, pp. 801-805. Joint Statement of President Roosevelt and President Arias, Oct. 17, 1933, id,., 806 et seq.; General Treaty and Supplementary Conventions of March 2, 1936, ratified July 26, 1939, 53 Stat. 1807. The other subparagraphs provide that the United States must conform to the local system of lights and other navigation aids, and report in advance to local authorities any such devices established or changed; that the United States is exempt from local pilotage laws; that .British commercial vessels may use the leased areas on the same basis as American commercial vessels; and that commercial United States aircraft cannot operate from the bases for other than military purposes except by agreement with the United Kingdom.","Statutes employing the term “possessions,”"
+749,8165471,1,1,"Pursuant to the decision of this Court in United States v. Wyoming, 331 U. S. 440, a decree was entered on February 16, 1948, 333 U. S. 834. By the terms of the decree, which adjudged that title to the íand in question is in the United States, jurisdiction was retained by this Court for the purpose of deter  mining the amount of damages payable by defendants to the plaintiff, and for such other and further orders and decrees as may be necessary. On July 2,1948, Public Law 887 (Ch. 815, 62 Stat. 1233) was approved, and provided: “That the Secretary of the Interior be, and he is hereby authorized and directed to issue a patent to the State of Wyoming for the east half of the northeast quarter, section 36, township 58 north, range 100 west, of the sixth principal meridian, in Park County, Wyoming, subject to any existing lease or leases: Provided, That title to said land shall be held and considered to have been vested in the State of Wyoming on July 10, 1890.” On September 29, 1948, the Secretary of the Interior, pursuant to the authorization and direction contained in the aforesaid Act of Congress, issued United States Patent No. 1,123,916 to the State of Wyoming for the portion of Section 36 described in said Act, subject to any existing lease or leases, with the title thereto considered to have vested in the State of Wyoming on July 10, 1890. The claim for damages arose entirely from the possession by the defendant Ohio Oil Company of the land described in said Act of Congress, and its extraction of oil therefrom. Inasmuch as the patent issued by the United States vests title to said land in the State of Wyoming during the entire period of possession by the defendant Ohio Oil Company, there is no need or requirement for further consideration by the Court of plaintiff’s demand for a money judgment. It is therefore ORDERED AND DECREED that the defendants shall pay the costs of this proceeding, including compensation for services rendered and actual expenses incurred by the Honorable Nat U. Brown, Special Master herein. Such compensation and expenses will be fixed by an order of the Court.",final order
+750,8393453,1,1,"The Court having exercised original jurisdiction over this controversy among sovereign States; the issues having been tried before the Special Master appointed by this Court; the Court having considered the briefs on the parties' exceptions to the Second Interim Report of the Special Master; IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS: 1. Wyoming's Motion for Partial Summary Judgment on the notice requirement for damages is granted for the years 1982, 1985, 1992, 1994, and 1998. 2. Wyoming also is not liable to Montana for the years 1981, 1987, 1988, 1989, 2000, 2001, 2002, and 2003. 3. Wyoming is liable to Montana for reducing the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 1,300 acre-feet in 2004. 4. Wyoming is liable to Montana for reducing the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 56 acre-feet in 2006. 5. The case is remanded to the Special Master for determination of damages and other appropriate relief.",order and judgment
+751,8938355,1,1,"
+The States’ contention that the Act ipso facto grants them submerged land rights of three leagues in the Gulf may be shortly answered. The terms of the statute require rejection of such a construction. Rather the measure of the grant in excess of three miles is made to depend entirely upon the location of a State’s original or later Congressionally approved maritime boundary, subject only to the three-league limitation of the grant. 'We turn next to the question whether, as the States contend, the first of the two alternative requirements of § 2 — a boundary which “existed at the time such State became a member of the Union” — is satisfied merely by showing a preadmission boundary, or whether, as the Government claims, that requirement contemplates only a boundary that carries the legal consequences of the event of admission. While it is manifest that the second requirement of § 2 — a boundary which was “heretofore approved by Congress” — must take into account the effect of Congressional action, it is not clear from the face of the statute that the same is true of the first requirement — a  boundary “as it existed at the time [a] State became a member of the Union.” The Government argues that in construing the first requirement of § 2 the effect of Congressional action cannot be ignored because to do so would be to measure the boundary prior to the time a State became a member of the Union, and “at the time” cannot mean “prior to the time.” However, it might be contended with equal force that to take account of the effect of Congressional action would be to measure the boundary after the' time the State became a member of the Union, and “at the time” cannot mean “after the time.” Indeed, if “at the time” were to be taken in a perfectly literal sense, it could refer only to the timeless instant before which the consequences of not being a State would obtain, and after which the consequences of statehood would follow, leaving unanswered the question whether the effect of Congressional action was to be considered or not. In short, if the term is to be given content it must be read as referring either to some time before or after the instant of admission, or to both times. As an aid to construction of “at the time” in § 2, the Government points to § 4, the last sentence of which states: “Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State’s seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.” (Emphasis supplied.) It is urged that the disjunctive use of the terms “prior to” and “at the time” shows that the latter must have been used to refer to the time after admission, since the phraseology would otherwise be redundant, and that such meaning should also be attributed to the same term in § 2,  thereby including the effect of Congressional action. But, as has already been indicated, “at the time” inherently can also be taken as referring to the preadmission period, thereby excluding the effect of such action. And on that basis there would be no redundancy in the phrase “prior to or at the time” if “at the time” meant immediately before the instant of admission and “prior to” referred to times substantially prior to admission; yet this would nonetheless exclude the effect of Congressional action. So far as the statute itself is concerned, the Government’s argument is thus inconclusive. Nor do the States’ arguments upon the face of the statute illumine the meaning of “at the time” as used in § 2. They contend that the meaning of § 2 is explained or clarified by the last sentence of § 4. According to them, a boundary “existed at the time [a] State became a member of the Union” (§2) if “it was so provided by its constitution or laws prior to or at the time such State became a member of the Union . . . .” (§4.) Under this view, whatever the meaning of “at the time,” the existence of a state constitutional or statutory three-league provision prior to admission would conclusively establish the boundary contemplated by the Act, irrespective of the character of Congressional action upon admission. However, this provision appears not in the definitional or granting sections of the statute (§ § 2 or 3), but in § 4, the purpose of which is to approve and confirm the boundaries of all States at three miles, and to negative any prejudice which might thereby result to claims in excess of three miles. It thus does not define the grant, but at most describes the claims protected from prejudice by § 4 in terms of their most likely nature. A fair reading of the section does not point to the conclusion that claims of this nature were deemed to be self-proving. Finally, there is no indication on the face of the statute whether the Executive policy of the United States on the  extent of territorial waters is a relevant circumstance in ascertaining the location of state seaward boundaries for purposes of the Act. Because the statute on its face is inconclusive as to these issues, we turn to the legislative history.
+This Court early held that the 13 original States, by virtue of the sovereignty acquired through revolution against the Crown, owned the lands beneath navigable inland waters within their territorial boundaries, and that each subsequently admitted State acquired similar rights as an inseparable attribute of the equal sovereignty guaranteed to it upon admission. Pollard’s Lessee v. Hagan, 3 How. 212. 12 It was assumed by many, and not without reason, 13 that the same rule would be applied to lands beneath navigable waters of the marginal sea, that is, beyond low-water mark and the outer limit of inland waters. However, beginning in the 1930’s, the Federal Government, while conceding the validity of the Pollard rule as to inland waters, disputed its applicability to submerged lands beyond that limit, and claimed ownership  of those lands for the United States. 14 The controversy centered primarily on the ownership of the oil-rich submerged lands off the coast of California. The State maintained that its original constitution, adopted in 1849 before it was admitted to the Union, established a seaward boundary three English miles from the coast, 15 that this boundary was ratified by the Act of Congress admitting it to the Union, and that therefore under the Pollard rule, it was entitled to all submerged lands lying within three English miles of its coast. This Court refused so to apply Pollard, and held in the California case and the subsequent Louisiana and Texas cases, supra, that paramount rights in the marginal sea are an attribute of national rather than state sovereignty, irrespective of the location of state seaward boundaries. Meanwhile an extended series of attempts was underway to secure Congressional legislation vesting in the States the ownership of those lands which would be theirs under an application of the Pollard rule to the marginal sea. 16 It was strongly urged, both before and after the  California decision that because the States had for many years relied on the applicability of the Pollard rule to the marginal sea, it was just and equitable that they be definitively given the rights which follow from such an application of the rule, and the California, Louisiana, and Texas cases were severely criticized for not having so applied it. 17  Thus virtually every “quitclaim” measure introduced between 1945 and 1953, when the Submerged Lands Act was ultimately enacted, framed the grant in terms of “lands beneath navigable waters within State boundaries.” This framework was employed because the sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in  terms of state territorial boundaries, whether located at or below low-water mark. 18 Since, however, none of the cases which had applied that rule involved lands below low-water mark, and since the California and subsequent Louisiana and Texas cases adopted for such lands a rule which does not depend upon state boundaries, this Court has never had occasion to consider the precise nature and method of determining state territorial boundaries in the open sea, such as would circumscribe the extent of state ownership of offshore lands under an application of the Pollard rule. Because Congress, in the exercise of its constitutional power to dispose of federal property, has chosen so to frame its grant, we are now called on to resolve such questions in light of the Act’s history and purposes.
+Erom the very outset, the sponsors of “quitclaim” legislation believed that all States were entitled to at least three miles of coastal submerged lands. 19 The earliest bills confirmed to the States all lands beneath navigable waters within their boundaries, and defined “lands beneath navigable waters” to include at least all lands lying within three geographical miles of the coast of each State. 20 However, they contained no definition of  “boundaries,” and it was apparently assumed that the boundaries of all States extended at least three miles. 21 Opponents of such legislation quickly pointed out that while California based its three-mile claim on an expressly defined maritime boundary, many, if not most, of the coastal States lacked such a boundary, 22 and that therefore, such States could not avail themselves of the Pollard rule, the applicability of which is restricted to areas within the actual territorial boundaries of the State, even assuming the rule to be capable of application beyond low-water mark. 23 Proponents of the legislation alleged it to be  defective in that it granted only those lands beneath navigable waters which lay within state boundaries, and that this Court in the California case, while not expressly passing on the question, had cast doubt on whether any of the original States ever had a boundary beyond its coast. 24 As a result, a new section was added, substantially similar to the second and third sentences of § 4 of the present Act (see note 8, ante), which permitted each State which had not already done so to extend its boundary seaward three miles and approved all such extensions theretofore or thereafter made, without prejudice to any State’s claim that its boundary extended beyond three miles. 25 It is not entirely clear on what theory Congress thus concluded that each State owned the submerged lands within three miles of its coast, irrespective of the existence of an expressly defined seaward boundary to that distance. It was substantially agreed that the 13 original Colonies owned the lands within three miles of their coasts because of their sovereignty and the alleged international custom which permitted a nation to extend its territorial jurisdiction that far. 26 Some proponents of the legislation seem to have concluded that therefore, not only did the  original States retain such rights after formation of the Union, but that subsequently admitted States acquired similar rights within three miles, irrespective of the location of their boundaries, by the operation of the equal-footing clause. 27 It was also suggested that state ownership within three miles came about by operation of federal law because of the Federal Government’s assumed adherence to the three-mile limit of territorial waters. 28 While some speakers maintained that these factors in effect gave each State a ihree-mile maritime boundary, 29 others eschewed technical reliance on the matter of boundaries and thought it sufficient that the Pollard rule had always been thought to confer ownership on the State of lands within three miles of the coast and that the States ought to be restored to the position they believed they had formerly occupied. 30 And there is some sugges  tion that since many States, under the Congressional view of Pollard, had indisputable claims to three miles of submerged lands, the remainder ought to be treated on a parity whether or not their claims were technically justified. 31 The upshot of all of these differing views was the confirmation of each coastal State’s seaward boundary at three geographical miles.
+Whatever may have been the uncertainty attending the relevance of state boundaries with respect to rights in submerged lands within three miles of the coast, we find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union and permitted Texas to retain its own public lands. 32 Florida repeatedly asserted its claim that subsequent to its secession at the time of the Civil War, it framed a constitution which established a three-league boundary along its Gulf coast, and that such boundary was ratified when Congress in 1868 approved  the State's constitution and readmitted it to the Union. 33 Louisiana asserted that the Act of Congress admitting it to the Union in 1812 fixed for it a three-league maritime boundary by virtue of the provision which includes within the State “all islands within three leagues of the coast.” 34 And it was suggested that Mississippi and Alabama might claim boundaries six leagues in the Gulf because of similar provisions in the Acts admitting them to the Union. 35 It was recognized that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence, while a three-mile boundary was expressly confirmed for all coastal States, the right of the Gulf States to prove boundaries in excess of three miles was preserved. This treatment of the matter was carried into all the numerous “quitclaim” bills by language similar to that found in § 4 of the present Act, confirming all coastal state boundaries at three miles and negating any prejudice to boundary claims in excess of that. 36 Repeated expressions of the Act’s sponsors make it absolutely clear that no boundary in excess of three miles was fixed for any State, but that a State would have to establish the existence of such a boundary in judicial proceedings. 37  The many individual expressions of views as to the location of particular state boundaries — notably statements that the effect of the Act would be to give Texas and Florida three leagues of submerged land rights 38 — while undoubtedly representing the sincere” beliefs of the speakers, cannot serve to relieve this Court from making an independent judicial inquiry and adjudication on the subject, as contemplated by Congress. The earlier “quitclaim” bills defined the grant in terms of presently existing boundaries, 39 since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. However, the sponsors of these measures soon recognized that present boundaries could be ascertained only by reference to historic events. The claims advanced by the Gulf States during consideration of earlier bills were identical to those subsequently asserted. 40 The theory of those claims, as we have noted, depended either, as in the cases of Texas and Florida, upon a constitutional or statutory provision allegedly ratified by Congressional acquiescence, or, as in the cases of Louisiana, Mississippi, and Alabama, upon express Congressional action. Indeed, it could hardly have been contended that Congressional action surrounding the event of admission was not relevant to the  determination of present boundaries. Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. 41 To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, such as those recently made by Texas and Louisiana, 42 subsequent drafts of the bill introduced the twofold test of the present Act — boundaries which existed at the time of admission and boundaries heretofore approved by Congress. 43 It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in  accordance with that theory- — -that the States should be “restored” to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State. 44 It was such action that the framers of this legislation conceived to fix the States’ boundaries  against subsequent change without their consent and therefore to confer upon them the long-standing equities which the measure was intended to recognize. 45 Somewhat later, the last sentence of the present Act’s § 4 was added, for the specific purpose of assuring that the boundary claims of Texas and Florida would be preserved. 46 The first part of the sentence (see note 8, ante), intended to refer to Texas alone, protects the State’s claim to a three-league boundary as “provided by its constitution or laws prior to or at the time such State became a member of the Union.” That claim, however, was asserted to rest not only on its statute but also on the  action of Congress in admitting it to the Union. 47 If any doubt could remain that the event of admission is a vital circumstance in ascertaining the location of boundaries which existed “at the time” of admission within the meaning of the Submerged Lands Act, it is conclusively dispelled by repeated statements of its proponents to that effect. 48 We conclude, therefore,' that the States’ contention that preadmission boundaries, standing alone, suffice to meet the requirements of the statute is not tenable.
+During consideration of the various “quitclaim” bills between 1945 and 1953, the suggestion that international questions might be raised by the bill constantly recurred. It was asserted that the United States might be embarrassed in its dealings with other nations, first, by permitting States to exercise rights in submerged lands beyond three miles, 49 and, second, by recognizing that the boundaries of some States might extend beyond three miles from the coast. 50 The first objection was laid to rest by the  testimony of Jack B. Tate, Deputy Legal Adviser to the State Department. Mr. Tate stated that exploitation of submerged lands involved a jurisdiction of a very special and limited character, and he assured the Committee that assertion of such a jurisdiction beyond three miles would not conflict with international law or the traditional United States position on the extent of territorial waters. He concluded that since the United States had already asserted exclusive rights in the Continental Shelf as against the world, the question to what extent those rights were to be exercised by the Federal Government and to what extent by the States was one of wholly domestic concern within the power of Congress to resolve. 51 The second objection, however — that to recognize by the Act the possible existence of some 'state maritime boundaries beyond three miles would embarrass this country in its dealings with other nations — was persistently pressed by the State Department and by opponents of the bill. The bill's supporters consistently took the position that under the Pollard rule as they understood it, the extent of a State’s submerged land rights in excess of three miles depended entirely upon the location of its maritime boundary as fixed by historical events, 52 ’ and that to the extent a State’s boundary had been so fixed beyond three miles, it constituted an exception to this country’s assumed adherence to the three-mile limit. The admission of Texas and the readmission of Florida  were repeatedly asserted as instances where Congress had made exceptions to the three-mile policy, purportedly based on the shallowness of waters in the Gulf and the alleged Spanish custom of claiming three leagues of territorial waters. 53 The State Department, confronted with this argument, tenaciously maintained that it had never recognized any boundaries in excess of three miles. 54 It insisted that by virtue of federal supremacy in the field of foreign relations, the territorial claims of the States could not exceed those of the Nation, and that, therefore, if the bill recognized the effectiveness of the relied-on historical events to fix boundaries beyond three miles despite the State Department's refusal so to recognize them, the bill would violate this country’s consistent foreign policy. The Government now urges in this case a closely similar contention. It says that the Submerged Lands Act did not establish any formula for the ascertainment of state boundaries but left them to be judicially determined, and that because of federal supremacy in the field of foreign relations, this Court must hold that the Executive policy of claiming no more than three miles of territorial waters — allegedly in force at all relevant times, and evidenced by the State Department’s consistent refusal to recognize boundaries in excess of three miles — worked a  decisive limitation upon the extent of all state maritime boundaries for purposes of this Act. 55 We agree that the Submerged Lands Act does not contain any formula to be followed in the judicial ascertainment of state boundaries, and that therefore, we must determine, as an independent matter, whether boundaries, for purposes of the Act, are to be taken as fixed by historical events such as those pointed to in the Congressional hearings and debates, or whether they must be regarded as limited by Executive policy on the extent of territorial waters, as contended by the Government. However, in light of the purely domestic purposes of the Act, we see no irreconcilable conflict between the Executive policy relied on by the Government and the historical events claimed to have fixed seaward boundaries for some States in excess of three miles. We think that the Government’s contentions on this score rest on an oversimplification of the problem. A land boundary between two States is an easily understood concept. It marks the place where the full sovereignty of one State ends and that of the other begins. The concept of a boundary in the sea, however, is a more elusive one. The high seas, as distinguished from inland waters, are generally conceded by modern nations to be  subject to the exclusive sovereignty of no single nation. 56 It is recognized, however, that a nation may extend its national authority into the adjacent sea to a limited distance for various purposes. For hundreds of years, nations have asserted the right to fish, to control smuggling, and to enforce sanitary measures within varying distances from their seacoasts. 57 Early in this country’s history, the modern notion had begun to develop that a country is entitled to full territorial jurisdiction over a belt of waters adjoining its coast. 58 However, even this jurisdiction is limited by the right of foreign vessels to innocent passage. 59 The extent to which a nation can extend its power into the sea for any purpose is subject to the consent of other nations, and assertions of jurisdiction to different distances may be recognized for different purposes. 60 In a manner of speaking, a nation which purports to exercise any rights to a given distance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even if it delimits territorial waters, confers rights more limited than a land boundary. It is only in a very special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters results in the establishment of a “national boundary.”  The power to admit new States resides in Congress. The President, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the former springs the power to establish state boundaries; from the latter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such determination is, of course, binding on the States. The exercise of Congress’ power to admit new States, while it may have international consequences, also entails consequences as between Nation and State. We need not decide whether action by Congress fixing a State’s territorial boundary more than three miles beyond its coast constitutes an overriding determination that the State, and therefore this country, are to claim that much territory against foreign nations. It is sufficient for present purposes to note that there is no question of Congress’ power to fix state land and water boundaries as a domestic matter. Such a boundary, fully effective as between Nation and State, undoubtedly circumscribes the extent of navigable inland waters and underlying lands owned by the State under the Pollard rule. Were that rule applicable also to the marginal sea — the premise on which Congress proceeded in enacting the Submerged Lands Act — it is clear that such a boundary would be similarly effective to circumscribe the extent of submerged lands beyond low-water mark, and within the limits of the Continental Shelf, owned by the State. For, as the Government readily concedes, the right to exercise jurisdiction and control over the seabed and subsoil of the Continental Shelf is not internationally restricted by the limit of territorial waters. We conclude that, consonant with the purpose of Congress to grant to the States, subject to the three-league limitation, the lands they would have owned had the Pollard rule been held applicable to the marginal sea, a  state territorial boundary beyond three miles is established for purposes of the Submerged Lands Act by Congressional action so fixing it, irrespective of the limit of territorial waters. We turn now to the task of ascertaining what boundary was so fixed for each of the defendant States.",The Common Issues.
+752,8938355,2,1,"The States’ contention that the Act ipso facto grants them submerged land rights of three leagues in the Gulf may be shortly answered. The terms of the statute require rejection of such a construction. Rather the measure of the grant in excess of three miles is made to depend entirely upon the location of a State’s original or later Congressionally approved maritime boundary, subject only to the three-league limitation of the grant. 'We turn next to the question whether, as the States contend, the first of the two alternative requirements of § 2 — a boundary which “existed at the time such State became a member of the Union” — is satisfied merely by showing a preadmission boundary, or whether, as the Government claims, that requirement contemplates only a boundary that carries the legal consequences of the event of admission. While it is manifest that the second requirement of § 2 — a boundary which was “heretofore approved by Congress” — must take into account the effect of Congressional action, it is not clear from the face of the statute that the same is true of the first requirement — a  boundary “as it existed at the time [a] State became a member of the Union.” The Government argues that in construing the first requirement of § 2 the effect of Congressional action cannot be ignored because to do so would be to measure the boundary prior to the time a State became a member of the Union, and “at the time” cannot mean “prior to the time.” However, it might be contended with equal force that to take account of the effect of Congressional action would be to measure the boundary after the' time the State became a member of the Union, and “at the time” cannot mean “after the time.” Indeed, if “at the time” were to be taken in a perfectly literal sense, it could refer only to the timeless instant before which the consequences of not being a State would obtain, and after which the consequences of statehood would follow, leaving unanswered the question whether the effect of Congressional action was to be considered or not. In short, if the term is to be given content it must be read as referring either to some time before or after the instant of admission, or to both times. As an aid to construction of “at the time” in § 2, the Government points to § 4, the last sentence of which states: “Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State’s seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.” (Emphasis supplied.) It is urged that the disjunctive use of the terms “prior to” and “at the time” shows that the latter must have been used to refer to the time after admission, since the phraseology would otherwise be redundant, and that such meaning should also be attributed to the same term in § 2,  thereby including the effect of Congressional action. But, as has already been indicated, “at the time” inherently can also be taken as referring to the preadmission period, thereby excluding the effect of such action. And on that basis there would be no redundancy in the phrase “prior to or at the time” if “at the time” meant immediately before the instant of admission and “prior to” referred to times substantially prior to admission; yet this would nonetheless exclude the effect of Congressional action. So far as the statute itself is concerned, the Government’s argument is thus inconclusive. Nor do the States’ arguments upon the face of the statute illumine the meaning of “at the time” as used in § 2. They contend that the meaning of § 2 is explained or clarified by the last sentence of § 4. According to them, a boundary “existed at the time [a] State became a member of the Union” (§2) if “it was so provided by its constitution or laws prior to or at the time such State became a member of the Union . . . .” (§4.) Under this view, whatever the meaning of “at the time,” the existence of a state constitutional or statutory three-league provision prior to admission would conclusively establish the boundary contemplated by the Act, irrespective of the character of Congressional action upon admission. However, this provision appears not in the definitional or granting sections of the statute (§ § 2 or 3), but in § 4, the purpose of which is to approve and confirm the boundaries of all States at three miles, and to negative any prejudice which might thereby result to claims in excess of three miles. It thus does not define the grant, but at most describes the claims protected from prejudice by § 4 in terms of their most likely nature. A fair reading of the section does not point to the conclusion that claims of this nature were deemed to be self-proving. Finally, there is no indication on the face of the statute whether the Executive policy of the United States on the  extent of territorial waters is a relevant circumstance in ascertaining the location of state seaward boundaries for purposes of the Act. Because the statute on its face is inconclusive as to these issues, we turn to the legislative history.",The Statute On Its Face.
+753,8938355,3,1,"Erom the very outset, the sponsors of “quitclaim” legislation believed that all States were entitled to at least three miles of coastal submerged lands. 19 The earliest bills confirmed to the States all lands beneath navigable waters within their boundaries, and defined “lands beneath navigable waters” to include at least all lands lying within three geographical miles of the coast of each State. 20 However, they contained no definition of  “boundaries,” and it was apparently assumed that the boundaries of all States extended at least three miles. 21 Opponents of such legislation quickly pointed out that while California based its three-mile claim on an expressly defined maritime boundary, many, if not most, of the coastal States lacked such a boundary, 22 and that therefore, such States could not avail themselves of the Pollard rule, the applicability of which is restricted to areas within the actual territorial boundaries of the State, even assuming the rule to be capable of application beyond low-water mark. 23 Proponents of the legislation alleged it to be  defective in that it granted only those lands beneath navigable waters which lay within state boundaries, and that this Court in the California case, while not expressly passing on the question, had cast doubt on whether any of the original States ever had a boundary beyond its coast. 24 As a result, a new section was added, substantially similar to the second and third sentences of § 4 of the present Act (see note 8, ante), which permitted each State which had not already done so to extend its boundary seaward three miles and approved all such extensions theretofore or thereafter made, without prejudice to any State’s claim that its boundary extended beyond three miles. 25 It is not entirely clear on what theory Congress thus concluded that each State owned the submerged lands within three miles of its coast, irrespective of the existence of an expressly defined seaward boundary to that distance. It was substantially agreed that the 13 original Colonies owned the lands within three miles of their coasts because of their sovereignty and the alleged international custom which permitted a nation to extend its territorial jurisdiction that far. 26 Some proponents of the legislation seem to have concluded that therefore, not only did the  original States retain such rights after formation of the Union, but that subsequently admitted States acquired similar rights within three miles, irrespective of the location of their boundaries, by the operation of the equal-footing clause. 27 It was also suggested that state ownership within three miles came about by operation of federal law because of the Federal Government’s assumed adherence to the three-mile limit of territorial waters. 28 While some speakers maintained that these factors in effect gave each State a ihree-mile maritime boundary, 29 others eschewed technical reliance on the matter of boundaries and thought it sufficient that the Pollard rule had always been thought to confer ownership on the State of lands within three miles of the coast and that the States ought to be restored to the position they believed they had formerly occupied. 30 And there is some sugges  tion that since many States, under the Congressional view of Pollard, had indisputable claims to three miles of submerged lands, the remainder ought to be treated on a parity whether or not their claims were technically justified. 31 The upshot of all of these differing views was the confirmation of each coastal State’s seaward boundary at three geographical miles.",Confirmation of All Boundaries at Three Miles.
+754,8938355,3,2,"Whatever may have been the uncertainty attending the relevance of state boundaries with respect to rights in submerged lands within three miles of the coast, we find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union and permitted Texas to retain its own public lands. 32 Florida repeatedly asserted its claim that subsequent to its secession at the time of the Civil War, it framed a constitution which established a three-league boundary along its Gulf coast, and that such boundary was ratified when Congress in 1868 approved  the State's constitution and readmitted it to the Union. 33 Louisiana asserted that the Act of Congress admitting it to the Union in 1812 fixed for it a three-league maritime boundary by virtue of the provision which includes within the State “all islands within three leagues of the coast.” 34 And it was suggested that Mississippi and Alabama might claim boundaries six leagues in the Gulf because of similar provisions in the Acts admitting them to the Union. 35 It was recognized that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence, while a three-mile boundary was expressly confirmed for all coastal States, the right of the Gulf States to prove boundaries in excess of three miles was preserved. This treatment of the matter was carried into all the numerous “quitclaim” bills by language similar to that found in § 4 of the present Act, confirming all coastal state boundaries at three miles and negating any prejudice to boundary claims in excess of that. 36 Repeated expressions of the Act’s sponsors make it absolutely clear that no boundary in excess of three miles was fixed for any State, but that a State would have to establish the existence of such a boundary in judicial proceedings. 37  The many individual expressions of views as to the location of particular state boundaries — notably statements that the effect of the Act would be to give Texas and Florida three leagues of submerged land rights 38 — while undoubtedly representing the sincere” beliefs of the speakers, cannot serve to relieve this Court from making an independent judicial inquiry and adjudication on the subject, as contemplated by Congress. The earlier “quitclaim” bills defined the grant in terms of presently existing boundaries, 39 since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. However, the sponsors of these measures soon recognized that present boundaries could be ascertained only by reference to historic events. The claims advanced by the Gulf States during consideration of earlier bills were identical to those subsequently asserted. 40 The theory of those claims, as we have noted, depended either, as in the cases of Texas and Florida, upon a constitutional or statutory provision allegedly ratified by Congressional acquiescence, or, as in the cases of Louisiana, Mississippi, and Alabama, upon express Congressional action. Indeed, it could hardly have been contended that Congressional action surrounding the event of admission was not relevant to the  determination of present boundaries. Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. 41 To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, such as those recently made by Texas and Louisiana, 42 subsequent drafts of the bill introduced the twofold test of the present Act — boundaries which existed at the time of admission and boundaries heretofore approved by Congress. 43 It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in  accordance with that theory- — -that the States should be “restored” to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State. 44 It was such action that the framers of this legislation conceived to fix the States’ boundaries  against subsequent change without their consent and therefore to confer upon them the long-standing equities which the measure was intended to recognize. 45 Somewhat later, the last sentence of the present Act’s § 4 was added, for the specific purpose of assuring that the boundary claims of Texas and Florida would be preserved. 46 The first part of the sentence (see note 8, ante), intended to refer to Texas alone, protects the State’s claim to a three-league boundary as “provided by its constitution or laws prior to or at the time such State became a member of the Union.” That claim, however, was asserted to rest not only on its statute but also on the  action of Congress in admitting it to the Union. 47 If any doubt could remain that the event of admission is a vital circumstance in ascertaining the location of boundaries which existed “at the time” of admission within the meaning of the Submerged Lands Act, it is conclusively dispelled by repeated statements of its proponents to that effect. 48 We conclude, therefore,' that the States’ contention that preadmission boundaries, standing alone, suffice to meet the requirements of the statute is not tenable.",Boundaries Beyond Three Miles.
+755,8938355,3,3,"During consideration of the various “quitclaim” bills between 1945 and 1953, the suggestion that international questions might be raised by the bill constantly recurred. It was asserted that the United States might be embarrassed in its dealings with other nations, first, by permitting States to exercise rights in submerged lands beyond three miles, 49 and, second, by recognizing that the boundaries of some States might extend beyond three miles from the coast. 50 The first objection was laid to rest by the  testimony of Jack B. Tate, Deputy Legal Adviser to the State Department. Mr. Tate stated that exploitation of submerged lands involved a jurisdiction of a very special and limited character, and he assured the Committee that assertion of such a jurisdiction beyond three miles would not conflict with international law or the traditional United States position on the extent of territorial waters. He concluded that since the United States had already asserted exclusive rights in the Continental Shelf as against the world, the question to what extent those rights were to be exercised by the Federal Government and to what extent by the States was one of wholly domestic concern within the power of Congress to resolve. 51 The second objection, however — that to recognize by the Act the possible existence of some 'state maritime boundaries beyond three miles would embarrass this country in its dealings with other nations — was persistently pressed by the State Department and by opponents of the bill. The bill's supporters consistently took the position that under the Pollard rule as they understood it, the extent of a State’s submerged land rights in excess of three miles depended entirely upon the location of its maritime boundary as fixed by historical events, 52 ’ and that to the extent a State’s boundary had been so fixed beyond three miles, it constituted an exception to this country’s assumed adherence to the three-mile limit. The admission of Texas and the readmission of Florida  were repeatedly asserted as instances where Congress had made exceptions to the three-mile policy, purportedly based on the shallowness of waters in the Gulf and the alleged Spanish custom of claiming three leagues of territorial waters. 53 The State Department, confronted with this argument, tenaciously maintained that it had never recognized any boundaries in excess of three miles. 54 It insisted that by virtue of federal supremacy in the field of foreign relations, the territorial claims of the States could not exceed those of the Nation, and that, therefore, if the bill recognized the effectiveness of the relied-on historical events to fix boundaries beyond three miles despite the State Department's refusal so to recognize them, the bill would violate this country’s consistent foreign policy. The Government now urges in this case a closely similar contention. It says that the Submerged Lands Act did not establish any formula for the ascertainment of state boundaries but left them to be judicially determined, and that because of federal supremacy in the field of foreign relations, this Court must hold that the Executive policy of claiming no more than three miles of territorial waters — allegedly in force at all relevant times, and evidenced by the State Department’s consistent refusal to recognize boundaries in excess of three miles — worked a  decisive limitation upon the extent of all state maritime boundaries for purposes of this Act. 55 We agree that the Submerged Lands Act does not contain any formula to be followed in the judicial ascertainment of state boundaries, and that therefore, we must determine, as an independent matter, whether boundaries, for purposes of the Act, are to be taken as fixed by historical events such as those pointed to in the Congressional hearings and debates, or whether they must be regarded as limited by Executive policy on the extent of territorial waters, as contended by the Government. However, in light of the purely domestic purposes of the Act, we see no irreconcilable conflict between the Executive policy relied on by the Government and the historical events claimed to have fixed seaward boundaries for some States in excess of three miles. We think that the Government’s contentions on this score rest on an oversimplification of the problem. A land boundary between two States is an easily understood concept. It marks the place where the full sovereignty of one State ends and that of the other begins. The concept of a boundary in the sea, however, is a more elusive one. The high seas, as distinguished from inland waters, are generally conceded by modern nations to be  subject to the exclusive sovereignty of no single nation. 56 It is recognized, however, that a nation may extend its national authority into the adjacent sea to a limited distance for various purposes. For hundreds of years, nations have asserted the right to fish, to control smuggling, and to enforce sanitary measures within varying distances from their seacoasts. 57 Early in this country’s history, the modern notion had begun to develop that a country is entitled to full territorial jurisdiction over a belt of waters adjoining its coast. 58 However, even this jurisdiction is limited by the right of foreign vessels to innocent passage. 59 The extent to which a nation can extend its power into the sea for any purpose is subject to the consent of other nations, and assertions of jurisdiction to different distances may be recognized for different purposes. 60 In a manner of speaking, a nation which purports to exercise any rights to a given distance in the sea may be said to have a maritime boundary at that distance. But such a boundary, even if it delimits territorial waters, confers rights more limited than a land boundary. It is only in a very special sense, therefore, that the foreign policy of this country respecting the limit of territorial waters results in the establishment of a “national boundary.”  The power to admit new States resides in Congress. The President, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the former springs the power to establish state boundaries; from the latter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such determination is, of course, binding on the States. The exercise of Congress’ power to admit new States, while it may have international consequences, also entails consequences as between Nation and State. We need not decide whether action by Congress fixing a State’s territorial boundary more than three miles beyond its coast constitutes an overriding determination that the State, and therefore this country, are to claim that much territory against foreign nations. It is sufficient for present purposes to note that there is no question of Congress’ power to fix state land and water boundaries as a domestic matter. Such a boundary, fully effective as between Nation and State, undoubtedly circumscribes the extent of navigable inland waters and underlying lands owned by the State under the Pollard rule. Were that rule applicable also to the marginal sea — the premise on which Congress proceeded in enacting the Submerged Lands Act — it is clear that such a boundary would be similarly effective to circumscribe the extent of submerged lands beyond low-water mark, and within the limits of the Continental Shelf, owned by the State. For, as the Government readily concedes, the right to exercise jurisdiction and control over the seabed and subsoil of the Continental Shelf is not internationally restricted by the limit of territorial waters. We conclude that, consonant with the purpose of Congress to grant to the States, subject to the three-league limitation, the lands they would have owned had the Pollard rule been held applicable to the marginal sea, a  state territorial boundary beyond three miles is established for purposes of the Submerged Lands Act by Congressional action so fixing it, irrespective of the limit of territorial waters. We turn now to the task of ascertaining what boundary was so fixed for each of the defendant States.",The Question of Executive Policy Respecting the “Three-Mile Limit.”
+756,8938355,1,2,"Texas, the only one of the defendant States which had the status of an independent nation immediately prior to its admission, contends that it had a three-league maritime boundary which “existed at the time [it] became a member of the Union” in 1845. Whether that is so for the purposes of the Submerged Lands Act depends upon a proper construction of the Congressional action admitting the State to the Union. Texas declared its independence from Mexico on March 2, 1836, 1 Laws, Republic of Texas, 3-7, and on December 19, 1836, the Texan Congress passed an Act to define its boundaries, which were described in part as “beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from, land, to the mouth of the Rio Grande, thence up the principal stream of said river . . . .” Id., 133. (Emphasis added.) See diagram at p. 65, post. 61  In March 1837 this country recognized the Republic of Texas. 62 On April 25, 1838, the United States entered into a convention with the Republic to establish a boundary between the two countries and to provide for a survey of part of it. 63 On April 12, 1844, President Tyler concluded a Treaty of Annexation with the Republic, but on June 8, 1844, the Senate refused to ratify it. 64 On March-1, 1845, President Tyler signed a Joint Resolution of Congress for the annexation of Texas, which provided: “That Congress doth consent that the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas .... Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments . . . .” 65 (Emphasis added.) Pursuant to this Resolution, the people of Texas adopted a constitution, which was submitted to Congress, and by Joint Resolution of December 29, 1845, Texas was admitted to the Union in accordance with the terms of the previous Joint Resolution. 66 The 1836 Texas Boundary Act remained in force up to the time of admission,  and the State Constitution expressly continued in force frota that time forward all laws of the Republic not repugnant to the Federal or State Constitution or the Joint Resolution of Annexation. 67 The Government, while conceding that Texas continuously asserted by statute a three-league seaward boundary, contends that at no time before, during, or after admission did the United States or any other country recognize the validity of that boundary. It follows, therefore, the Government says, that since Texas upon entering the Union became subject to the foreign policy of the United States with respect to the “three-mile limit,” the State’s seaward boundary became immediately and automatically fixed at three miles. Texas, on the other hand, argues that it effectively established, and that the United States repeatedly recognized, the State’s three-league boundary before, during, and after admission, and that therefore such a boundary existed “at the time” of its admission within the meaning of the Submerged Lands Act. For reasons already discussed, ante, pp. 24-36, we consider that the only relevant inquiry is what boundary was fixed for the State of Texas by virtue of the Congressional action admitting it to the Union in accordance with the terms of the Joint Resolution of March 1, 1845. This inquiry first takes us back to some earlier history. By the Treaty of Paris, signed April 30, 1803, 68 France ceded to the United States the Louisiana Territory. The extent of the territory thus conveyed was left uncertain, the description in the Treaty referring only to a previous treaty by which France had acquired the territory from Spain, which in turn described the area only as “the colony or province of Louisiana.” 69 It was asserted by  some that the territory acquired did not stop at the Sabine River — the present boundary between the States of Louisiana and Texas — but extended westward to the Rio Grande so as to include Texas. 70 However, by the Treaty of February 22,' 1819, between the United States and Spain, the boundary line between the two countries was established at the Sabine. 71 Those who had believed that the Louisiana Territory extended west of the Sabine decried this Treaty as a breach of faith by the United States in violation of the covenant in the 1803 Treaty which required the inhabitants of all the Louisiana Territory to be incorporated as soon as possible into the Union. 72 Subsequently, the United States attempted unsuccessfully on several occasions to acquire the territory west of the Sabine by purchase. 73 Meanwhile, Mexico had revolted from Spain, had been recognized by this country in 1822, and had proclaimed a federal constitution in 1824. Texas was made part of the compound province of Coahuila-Texas, with the indication that it would eventually be given a separate constitution as a sovereign state. After a series of difficulties with the central government, however, Texas in  1836 proclaimed its own independence from Mexico. It immediately sent diplomatic representatives to the United States to negotiate for annexation, but nothing was consummated at that time. 74 Shortly thereafter, it promulgated the 1836 boundary statute referred to above. It was against this background that President Tyler negotiated and sent to the Senate the 1844 Treaty for the annexation of Texas. That document provided: “The Republic of Texas . . . cedes to the United States all its territories, to be held by them in full property and sovereignty . . . 75 One of the objections made to the Treaty on the floor of the Senate was that it purported to cede to the United States all the territory claimed by Texas under her 1836 Boundary Act, to large parts of which Texas allegedly had no title, those parts assertedly having always been under the domination and control of Spain and Mexico. 76 This objection was countered by several proponents of the Treaty who insisted that since it contained no delineation of boundaries and since the Republic of Texas was referred to by a general designation, the clause “all its  territories” ceded only that which properly and rightfully belonged to Texas, its Boundary Act notwithstanding. 77 The proponents pointed also to a letter of instructions written by Secretary of State Calhoun to the United States Charge d’ Affaires in Mexico a week after the Treaty was signed, which enjoined the latter, in making the Treaty known to Mexico, “to assure the Mexican Government that it is his [the President’s] desire to settle all questions between the two countries which may grow out of this treaty, or any other cause, on the most liberal and satisfactory terms, including that of boundary . . . . [The United States] has taken every precaution to make the terms of the treaty as little objectionable to Mexico as possible; and, among others, has left the boundary of Texas without specification, so that what the line of boundary should be might be an open question, to be fairly and fully discussed and settled according to the rights of each, and the mutual interest and security of the two countries.” 78 Despite these controversial aspects of the Treaty, it is quite apparent that its supporters desired to press Texas’ boundary claims to the utmost degree possible. President Tyler, in response to the Senate’s request, transmitted to it a map showing the western and southwestern boundaries of Texas, and according generally with the Texas Boundary Act. 79 Senator Walker of Mississippi, while insisting that the Treaty ceded “only . . . the country embraced within its [Texas’] lawful boundaries,”  asserted that in fact her lawful boundary extended to the Rio Grande, that it had extended that far when she was ceded away by the United States in 1819, that the United States had acquiesced in those boundaries when it recognized Texas in 1837, and that Mexico had never protested the Convention of 1838 which allegedly validated that boundary. 80 Senator Breese of Illinois, while assuring the Treaty’s opponents that the boundary was left open to future determination, avowed that the United States had acknowledged the Texas boundaries as asserted in her 1836 statute, and that he was in favor of the recovery not only of the old province of Texas as it existed in 1803 and 1819, but also “for as much more as the 'republic’ of Texas can lawfully claim.” 81 Senators Woodbury of New Hampshire and Buchanan of Pennsylvania, while expressing doubt about the validity of the Texas Boundary Act to the extent that it claimed portions of New Mexico, thought it was valid so far as it pressed beyond the Nueces to the Rio Grande and ought to be maintained. 82 After the failure of the Treaty, which would have annexed Texas as a territory of the United States, several proposals were introduced in the next session of Congress for the annexation of Texas by a Joint Resolution admitting it immediately as a State. 83 The doubts which  had been raised in 1844 as to the validity of certain Texan pretensions to territory on her western and southwestern frontiers were reiterated during consideration of the various Resolutions, and reference was made to the fact that the rejected Treaty had been assailed as purporting to embrace such territory. 84 In 1844, supporters of the Treaty had considered the general designation “all its territories” as ceding only territory which rightfully, properly, or lawfully belonged to Texas, and as leaving to the Executive the duty of settling the extent of that territory by amicable negotiation. 85 The two clauses of the 1845  Annexation Resolution (ante, p. 37) appear, against this background, to be an express formulation of precisely the same thing. The first makes it clear that the grant is of initially undefined scope, governed by the truism that only “the territory properly included within, and rightfully belonging to the Republic of Texas” is ceded. The second expressly contemplates future negotiation to settle the exact extent of such territory, by making it “subject to the adjustment by this government of all questions of boundary that may arise with other governments.” In short, it is clear that the “properly” and “rightfully” clause was intended neither as a legislative determination that the entire area claimed by Texas was legitimately hers, nor to serve, independently of the “adjustment” clause, as a self-operating standard for measuring Texas’ boundaries. Rather, the precise, fixation of the new State’s boundaries was left to future negotiations with Mexico. The circumstances surrounding the Resolution’s passage make it clear that this was the understanding of Congress. Congressional attention was focused primarily on the great political questions attending annexation— primarily the extent to which slavery would be permitted in the new territory and the possibility that annexation would embroil this country with Mexico — and the matter of boundary received little consideration except as it was related to the larger issues. Public agitation over annexation had become so great that some bills had proposed annexation virtually in the abstract, with all details to be worked out later. 86 Although the Resolution as ulti  mately passed did settle the details of certain matters— notably slavery, the Texan debt, and the mode of annexation — the manifest purport of it and all the many other annexation bills introduced was to postpone the fixing of boundaries for the sake of achieving immediate annexation, and no apparent importance was attached to the particular verbal formula used to achieve such postponement. 87 The general tenor of opposition to annexation  changed from a fear that the cession covered too much to criticisms of the indefinite treatment of boundary and concern over whether Texas really owned as much as some supporters asserted. 88 It is true that isolated statements were made which seem to indicate that the speaker thought the Resolutions would admit Texas with the boundary defined in her 1836 boundary statute, subject to possible subsequent readjustment. 89 However, read in  context, these statements may have meant no more than that the United States, in its negotiations with Mexico, would attempt to sustain the full extent of Texas’ declared boundaries, rather than that those boundaries were in fact proper. Be that as it may, in view of the overwhelming evidence of Congressional understanding and of the express language of the Annexation Resolution as ultimately passed, the conclusion is inescapable that Texas, at least as to its land area, was admitted with undefined boundaries subject to later settlement. While this conclusion appears unavoidable as regards Texas’ land boundaries, a question does exist as to whether it applies also to the State’s seaward boundary. For we are unable to find in the Congressional debates either on the 1844 Treaty or the 1845 Annexation Resolution a single instance of significant advertence to the problem of seaward boundaries. Furthermore, a series of other events manifests a total lack of concern with the problem. Prior to Texan independence, the United States had entered into successive treaties with Spain and Mexico, 90 which provided that “The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north along the western bank of that river . . . .” (Emphasis added.)  Just after Texas had proclaimed its independence from Mexico, the two countries, on May 14, 1836, concluded “Articles of Agreement and Solemn Compact,” acknowledging Texan independence and setting its boundary as follows: “The line shall commence at the estuary or mouth of the Rió Grande, on the western bank thereof, and shall pursue the same bank up the said river . . . .” 91 (Emphasis added.) Thereafter a minister was sent to the United States to seek recognition and broach the subject of annexation. With respect to the latter, he was instructed on November 18,1836: “As regards the boundaries of Texas . . . [w]e claim and consider that we have possession to the Rio Bravo del Norte. Taking this as the basis, the boundary of Texas would be as follows. Beginning at the mouth of said River on the Gulf of Mexico, thence up the middle thereof . . . .” 92 (Emphasis added.) Yet a month later, on December 19, 1836, the Texan Congress passed the Boundary Act which inexplicably, so far as we can find, provided that the boundary should run along the Gulf of Mexico at three leagues from land. 93  Quite in contrast, in the subsequent Convention of 1838 to establish the boundary between the United States and Texas, Texas reaffirmed the 1819 and 1828 Treaties with Spain and Mexico regarding that boundary and agreed to the running and marking of “that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.” 94 (Emphasis added.) Again, as previously mentioned (note 79, ante), during its consideration of the unratified Treaty of April 12, 1844, the Senate requested President Tyler to transmit any information he possessed concerning the southern, southwestern, and western boundaries of Texas. On April 26, 1844, he sent a map and a memoir by its compiler. The memoir flagrantly misquoted the 1836 Boundary Act by  describing the Texas boundary as “ ‘Beginning at the mouth of the Rio Grande, thence up the principal stream of said river . . . ” 95 The foregoing circumstances make it abundantly plain that at the time Texas was admitted to the Union, its seaward boundary, though expressly claimed at three leagues in the 1836 Texas Boundary Act, had not been the subject of any specific concern in the train of events leading to annexation. Given this state of affairs, we must initially dispose of an argument made by Texas. The State urges, in effect, that whether or not its maritime boundary was actually considered by the Congress or the Executive during the course of the annexation proceedings, it was incumbent upon the United States to protest or reject in some manner Texas’ claim in this regard, and that failure to do so constituted in law a validation or ratification of that boundary claim upon admission. Whatever the merit of this proposition may be in the abstract, the controlling factor for purposes of this case must be the terms of the Joint Resolution of Annexation. There is, indeed, a strong argument that the “properly,” “rightfully,” and “adjustment” clauses of that Resolution should be read as applying only to the land boundaries disputed with Mexico, which gave rise to those qualifications, and that the Resolution was meant to validate any boundary asserted by Texas without protest. However, in light of the fact that the language employed in the Resolution is of general applicability, we should hesitate to limit its effect by reading into it such an additional unexpressed test respecting the extent of Texas’ boundaries. We think that its language must be taken as applying to Texas’ maritime boundary as well as to its land boundary.  On this basis an argument of the Government must now be met. It is contended that since Texas was admitted to the Union with its maritime boundary not yet settled, United States foreign policy on the extent of territorial waters, to which Texas was admittedly subject from the moment of admission, automatically upon admission operated to fix its seaward boundary at three miles. This contention must be rejected. As we have noted, the boundaries contemplated by the Submerged Lands Act are those fixed by virtue of Congressional power to admit new States and to define the extent of their territory, not by virtue of the Executive power to determine this country's obligations vis-á-vis foreign nations. Ante, pp. 30-36. It may indeed be that the Executive, in the exercise of its power, can limit the enjoyment of certain incidents of a Congressionally conferred boundary, but it does not fix that boundary. If, as in the case of Texas, Congress employs an uncertain standard in fixing a State’s boundaries, we must nevertheless endeavor to apply that standard to the historical events surrounding admission. We are brought back, then, to a twofold inquiry: First, whether the three-league maritime boundary asserted by the Republic of Texas embraced an area which was “properly included within, and rightfully belonging to” the Republic. Second, whether such a boundary was ever fixed for the State of Texas pursuant to the power reserved by Congress to adjust “all questions of boundary that may arise with other governments.” As we have observed, it is evident that the first clause, independently of the second, was not intended to operate as a self-executing standard for determining the disputed western and southwestern boundaries of Texas. To attempt to apply that clause as fixing the extent of Texas’ maritime boundary, immediately upon admission to the Union, no less than in so fixing its land boundaries, would be illusory at best. The parties devote consider  able discussion to the validity or invalidity of the asserted three-league maritime boundary under international law. It is true that the propriety of a nation’s seaward boundary must be viewed in the context of its obligations vis-á-vis the family of nations. But surely the Joint Resolution of Annexation could not have been meant to import such an elusive inquiry into the determination of Texas’ maritime boundary, especially when that question was never even considered and when the Resolution was expressly drawn to leave undefined the land boundaries which did receive consideration. And we are unable to say that Congress might have deemed the three-league maritime boundary “proper” or “rightful” in some other sense. It is necessary, therefore, to look to other events to ascertain where the Texan maritime boundary was fixed pursuant to the Joint Resolution of Annexation. Congress’ failure to carry into the Annexation Resolution the boundaries fixed by the 1836 Texas Boundary Act did not, of course, foreclose the possibility that the State’s boundary might ultimately be fixed in accordance ' with that statute. It is significant in this regard to note the opinions ventured in Congress on the probable settlement of the boundary with Mexico which would occur subsequent to annexation. One group asserted that the Texan claims to the Rio Grande, particularly the portion which encompassed New Mexico, could not possibly be maintained. 96 But such remarks were made primarily by opponents of annexation and were intended as warnings against assuming that enough land would be included in the cession to pay the Texan debt or to form free States. Much more significant than opinions as to where the boundary might ultimately be fixed are observations made  regarding the basis on which the boundary question might be pressed against Mexico. Supporters and opponents alike acknowledged that the United States would probably negotiate on the basis of the Texan boundaries as declared in her own boundary statute, even though some parts of that boundary might not be maintainable. Some thought this was so because those boundaries were in fact her proper and rightful boundaries. 97 Others thought it was so because the United States, having acquiesced in the Boundary Act after receiving notice of it, was bound, upon admitting Texas to the Union, to maintain those claims on her behalf. 98 Whatever the reasons given, it is  clear that Congress, although it purposely refused to settle the question, anticipated that the Texas Boundary Act should and would be insisted on to the greatest degree possible in negotiations with Mexico. This prediction was borne out by subsequent events. After the Annexation Resolution had been passed and transmitted to Texas for its assent, the Mexican army threatened to cross the Rio Grande and invade Texas. On June 15, 1845, President Polk wrote an informal and confidential letter to the United States Chargé d’Affaires in Texas which indicated that Polk intended to repel such an invasion and to maintain the Texan claim at least to the lower portion of the Rio Grande: “In the contingency . . . that a Mexican army should cross — the Rio Grande . . . then in my judg  ment, — the public necessity for our interposition— will be such, — that we should not stand — quietly by — and permit — an invading foreign enemy — either to occupy or devastate any portion of the Texian territory. Of course I would maintain the Texan title to the extent which she claims it to be, and_not permit an invading enemy — to occupy a foot of the soil East of the Rio GrandeAndrew Donelson Papers (Library of Congress), Yol. 10, folios 2068-2070. Nine days before, Polk had manifested a similar intention in a letter to Sam Houston, former President of the Republic of Texas and an influential spokesman for annexation: “You may have no apprehensions in regard to your boundary. Texas once a part of the Union and we will maintain all your rights of territory and will not suffer them to be sacrificed.” Polk Papers (Library of Congress) (1845), Yol. 84. The attitude of the Executive at this time toward the Texan boundary is made even more explicit by an account of an interview between the United States Chargé d’Affaires in Texas and Sam Houston, written by the former to his superior, the Secretary of State : “I stated at large the general policy of the United States as justifying no doubt of the tenacity with which they would maintain not only the present claim of Texas, but reenforce it with the preexisting one derived from France in 1803 .... “I brought also to his view the fact that this latter feature of the proposals did not interfere with the right of Texas to define her limits as she claimed them, in her statutes — that the specification of the Rio Grande as the western boundary would be proper enough as shewing the extent to which the United States would maintain her claim as far as it could be  done without manifest injustice to Mexico, and to the portion of the inhabitants of Mexico that had never yet acknowledged the jurisdiction of Texas — that practically the United States would take the place of Texas, and would be obligated to do all, in this respect, that Texas could do, were she to remain a separate nation.” 99 After Texas consented to annexation and Congress had finally admitted her to statehood, the Mexican army crossed the Rio Grande and declared war upon the United States. On May 11, 1846, President Polk called on Congress to declare war against Mexico. He said in part: “Texas, by the final action of our Congress, had become an integral part of our Union. The Congress of Texas, by its act of December 19, 1836, had declared the Rio del Norte to be the boundary of that republic. Its jurisdiction had been extended and exercised beyond the Nueces. The country between that river and the Del Norte had been represented in the congress and in the convention of Texas; had thus taken part in the act of annexation itself; and is now included within one of our congressional districts. Our own Congress had, moreover, with great unanimity, by .the act approved December 31, 1845, recognized the country beyond the Nueces as a part of our territory, by including it within our own revenue system; and a revenue officer, to reside within that district, has been appointed, by and with the advice and consent of the Senate. It became, therefore, of urgent necessity to provide for the defence of that portion of our country.” H. R. Exec. Doc. No. 60, 30th Cong., 1st Sess. 4, 7.  In a later message to Congress on December 8, 1846, Polk manifested the same disposition. H. R. Exec. Doc. No. 4, 29th Cong., 2d Sess. 13-14. And on December 7, 1847, he explained that the United States had rejected a treaty proposal by Mexico because “It required the United States to dismember Texas, by surrendering to Mexico that part of the territory of that State lying between the Nueces and the Rio Grande, included within her limits by her laws when she was an independent republic, and when she was annexed to the United States and admitted by Congress as one of the States of our Union.” H. R. Exec. Doc. No. 8, 30th Cong., 1st Sess. 9. However, there is absolutely nothing to indicate that the Executive, any more than the Congress, was interested in, or was at all aware of any problem presented by, the seaward boundary of Texas as claimed in its 1836 Boundary Act. The Government urges, by way of explanation, that the United States had, by this time, firmly established a policy of claiming no more than three miles of territorial waters. But the Executive’s responsibility for fixing the Texan boundary derived from a delegation of Congressional power to admit new States, not from the Executive’s own power to fix the extent of territorial waters. As we have already pointed out, the two powers can operate independently, and only the first is determinative in this case. To the extent it may be argued that the Executive would naturally take account of its own policy toward territorial waters in fixing the Congres-sionally mandated boundary, the data presented to us are utterly devoid of any suggestion that such was the case. On the contrary, it is evident that the overwhelming concern of the President and his subordinates was to maintain to the greatest extent possible the land boundaries claimed by Texas and disputed with Mexico,  as anticipated by Congress. The settlement of that matter remained for future events, to which we now turn. On April 15, 1847, Nicholas P. Trist was appointed Commissioner to Mexico to negotiate a peace treaty. Among his instructions was a pro jet of the proposed treaty, which provided: “The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, from thence up the middle of that river . . . 5 Miller, Treaties and Other International Acts of the United States of America (1937), 265. (Emphasis added.) This language was incorporated verbatim into Article V of the Treaty of Guadalupe Hidalgo as finally signed on February 2, 1848, 9 Stat. 922, which fixed the boundary between the United States and Mexico from the Gulf of Mexico to the Pacific coast. 100 While there was con  siderable disagreement in the negotiations over the various land boundaries, the proposals of both parties never departed from the three-league provision. See 5 Miller, op. cit., supra, at 270, 288, 299, 315, 317, 325. Trist stated in his notes that one object of instructions given to his predecessor, substantially identical in relevant part to those given him, was to get Mexico to agree to a boundary which “would throw within the territory of the United States the country lying east of the Rio Grande. Or,  as said object stands in said instructions, specifically stated & expressed, it was the object of prevailing upon Mexico ‘to agree that the line shall be established along the boundary defined by the act of Congress of Texas, approved December 19, 1836, to wit: beginning at “the mouth of the Rio Grande; thence up the principal stream of said river 101 While this misquotation of the Texas Boundary Act again demonstrates total insensitivity to any problem of a seaward boundary, the passage does indicate that the United States was attempting to follow the Texan statute in negotiating the boundary. 102 More important for the purposes of this case are the circumstances that the three-league provision was made an express part of the Treaty of Guadalupe-Hidalgo, that such boundary was reaffirmed five years later in the Gadsden Treaty of December 30, 1853 103 and subsequently in a long line  of international conventions, 104 and that it has never been repudiated. The Treaty unquestionably established the Rio Grande from New Mexico to the Gulf as the land boundary not only of the United States but also of Texas, since the Executive, acting pursuant to the power given by Congress to “adjust” Texas’ boundaries in dealings with other nations, pressed that boundary against Mexico on the theory that it embraced territory rightfully belonging to the State of Texas. There is nothing to indicate that the extension of that boundary three leagues into the Gulf, pursuant to the very same Boundary Act, was treated on any different basis. The portion of the boundary extending into the Gulf, like the rest of the line, was intended to separate the territory of the two countries, and to recognize that the maritime territory of Texas extended three leagues seaward. Whether the Treaty be deemed to constitute an exercise of the power to adjust the boundaries left unsettled by the 1845 Joint Resolution of Annexation, or a post hoc recognition of a seaward boundary which was actually fixed for Texas upon its admission in 1845, or a fixation of boundaries which related back to the time of admission, is of no moment. Although the Submerged Lands Act requires that a State’s boundary in excess of three miles must have existed “at the time” of its admission, that phrase was intended, in substance, to define a State’s present boundaries by reference to the events surrounding its admission. As such, it clearly includes a boundary which was  fixed pursuant to a Congressional mandate establishing the terms of the State’s admission, even though the final execution of that mandate occurred a short time subsequent to admission. The Government contends that the Treaty of Guadalupe Hidalgo is of no significance in this case because the line drawn three leagues out to sea was not meant to separate territory of the two countries, but only to separate their rights to exercise certain types of “extraterritorial” jurisdiction with respect to customs and smuggling. We believe the conclusion is clear that what the line, denominated a “boundary” in the Treaty itself, separates is territory of the respective countries. No reference to “extraterritorial” jurisdiction is made in the Treaty, and no such concept can be gleaned from the context of the negotiations. Being based on the three-league provision of the 1836 Texas Boundary Act, which itself denotes a territorial boundary, the obvious and common-sense meaning of the analogous treaty provision is that it separates the maritime territory of the United States and Mexico. The Government relies on certain diplomatic correspondence as evidencing a subsequent construction of the Treaty contrary to this conclusion. In 1848, when Great Britain protested the three-league provision of the Treaty, both the United States and Mexico replied that the Treaty defined rights only as between the two countries and was not intended to impair the rights of any other nation in the marginal sea. 105 In 1875, Secretary of State Hamilton Fish made a similar explanation to Lord Derby of Eng  land, but added a new contention that the boundary provision was “probably” suggested by the Acts of Congress permitting revenue officials to board vessels bound for the United States within four leagues of the coast. 106 And in 1936, after Mexico had asserted a three-league belt of territorial water along its entire coast, the United States, in denying that the Treaty gave Mexico such a right, adopted both rationales relied on in 1875, and in addition contended that the boundary provision did recognize the territory of the two countries as extending three leagues from the coast, but only in the “one area” adjacent to the international boundary. 107 It seems evident from the  shifting and uncertain grounds upon which these pronouncements relied that they should be taken as reflecting no more than after-the-fact attempts to limit the effect of a provision which patently purported to establish a three-league territorial boundary, so as to bring it into accord with this country’s international obligations. Undoubtedly the Executive has the right to limit the effect to be accorded a treaty provision in its dealings with other countries. But where, as here, that Treaty touches upon relationships between the Nation and a State created pursuant to a Congressional mandate, the original purport of the Treaty must control, and the dealings of the Executive with other nations cannot affect the State’s rights in any way as a domestic matter. We conclude, therefore, that pursuant to the Annexation Resolution of 1845, Texas’ maritime boundary was established at three leagues from its coast for domestic purposes. Of course, we intimate no view on the effectiveness of this boundary as against other nations. Accordingly, Texas is entitled to a grant of three leagues from her coast under the Submerged Lands Act.  BOUNDARIES CLAIMED BY TEXAS.",The Particular Claims of Texas.
+757,8938355,1,3,"Louisiana’s claims, like those of Texas, are based on the contention that it had a three-league maritime boundary which existed “at the time” it was admitted to the Union, and must be judged by the same standards. The Act of Congress admitting the State to the Union in 1812 107a described the new State’s boundaries as follows: “beginning at the mouth of the river Sabine; thence, by a line to be drawn along the middle of said river, including all islands to the thirty-second degree of latitude; thence, due north, to the northernmost part of the thirty-third degree of north latitude; thence, along the said parallel of latitude, to the river Mississippi; thence, down the said river, to the river Iberville; and from thence, along the middle of the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico; thence, bounded by the said gulf, to the place of beginning, including all islands within three leagues of the coast (Emphasis added.) Louisiana claims that the concluding clause “including all islands within three leagues of the coast” should be read to mean that Congress fixed as the State’s seaward boundary a line three leagues from its coast, and that such a reading is supported both by the State’s preadmission history and by subsequent events. The Government, on the other hand, insists that the phrase includes only the islands themselves lying within three leagues of the coast, and not all waters within that distance as well. 108  1. The Act of Admission on Its Face. The language of the Act itself appears clearly to support the Government’s position. The boundary line is-drawn down the middle of the river Iberville “to the gulf of Mexico,” not into it for any distance. The State is thence to be bounded “by the said gulf,” not by a line located three leagues out in the Gulf, “to the place of beginning,” which is described as “at the mouth of the river Sabine,” not somewhere beyond the mouth in the Gulf. (Emphasis added.) And while “all islands” within  three leagues of the coast were to be included, there is no suggestion that all waters within three leagues were to be embraced as well. In short, the language of the Act evidently contemplated no territorial sea whatever. Similar language was employed in the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States. 109 After describing the boundary of the United States from the mouth of the St. Croix River in the Bay of Fundy to the mouth of the St. Mary’s River between Georgia and Florida, the parties added: “comprehending all islands within twenty leagues of any part of the shores of the United States . . . .” In the light of Jefferson’s observation, only 10 years later, that national claims to control of the sea beyond approximately 20 miles from the coast had not theretofore been generally recognized among maritime powers; 110 his accompanying proposal that a three-mile limit should be placed upon the extent of territorial waters; 111 and subsequent American and British policy in this regard, see note 54, supra, it is hardly conceivable that this provision of the Treaty was intended to establish United States territorial jurisdiction over all waters lying within 20 leagues (60 miles) of the shore. 112 No reason appears for reading  the Louisiana statute differently. The conclusion that language claiming all islands within a certain distance of the coast is not meant to claim all the marginal sea to that distance is further confirmed by the Act defining the boundaries of Georgia, 113 which claims three miles of marginal sea but all islands within 20 leagues of the coast. That Act provides: “along the middle of [the St. Mary’s] river to the Atlantic Ocean, and extending therein three English miles from low-water mark; thence running in a northeasterly direction and following the direction of the Atlantic coast to a point opposite the mouth, or inlet, of said Savannah River; and from thence to the mouth or inlet of said Savannah River, to the place of beginning; including all the lands, waters, islands, and jurisdictional rights within said limits, and also all the islands within 20 marine leagues of the seacoast.” Nothing in the case of Alaska Pacific Fisheries v. United States, 248 U. S. 78, tends toward a contrary construction. The Court there held that an Act of Congress designating as an Indian reservation “the body of lands known as Annette Islands” included the intervening and surrounding waters and submerged lands, which were inland waters admittedly under the control of the United States, whether actually part of the reservation or not. The Court, construing the statute in light of the Indians’ historic use of these waters as fishing grounds, merely concluded that Congress intended to include in the area reserved the waters and water bed, as well as the islands, referring to both “as a single body of lands.” Id., 89. The construction here contended for by Louisiana would,  in contrast, sweep within the State’s jurisdiction waters and submerged lands which bear no proximate relation to any islands, and which would otherwise be part of the high seas. Louisiana also contends, relying on United States v. Texas, 162 U. S. 1; Louisiana v. Mississippi, 202 U. S. 1, that this Court has already determined that its boundary includes three leagues of marginal sea. The Texas case, however, involved only the question whether Greer County, in the northwest part of the State, was properly a part of Texas. And even if that case had effectively established a three-league maritime boundary for Texas, which quite evidently it did not, that would not establish a similar boundary for Louisiana. The Mississippi case involved only the issue of the boundary between Louisiana and Mississippi. Louisiana relies on the holding of the Court that because the eastern boundary of Louisiana was a water boundary along the middle of the river Iberville, extending to the Gulf, it went on to include a deep-water sailing channel in the Gulf adjacent to Mississippi. It also relies on a rough map included in the Court’s opinion showing a line drawn all the way around the State’s coast at some distance in the Gulf. There is, however, no indication whatever that the line so indicated bore any relation to the three-league provision in the Louisiana Act of Admission. Furthermore, if there could be any doubt that only the portion of the water boundary adjacent to Mississippi was considered by the Court, it is dispelled by the Court’s statement that “Questions as to the breadth of the maritime belt or the extent of the sway of the riparian States require no special consideration here. The facts render such discussion unnecessary.” Id., 52. See also United States v. California, supra, at 37.  2. Preadmission History. Preliminarily, it should be observed that in light of what has already been said, pp. 24-30, ante, Louisiana's pre-admission history is relevant in this case only to the extent that it aids in construing the Louisiana Act of Admission. The thrust of the State's argument on this score is that the boundaries fixed by the Act of Admission comprised the entire area acquired by the United States from France through the Louisiana Purchase, effected by the Treaty of Paris in 1803; that the extent of this area traces back, through cessions by France to Spain in 1762 and Spain to France in 1800, to what was first claimed by France in 1682; and that such area originally extended some 120 miles into the Gulf of Mexico, and in any case, by virtue of other events, at least three leagues into the Gulf. For reasons now to be discussed we think that this historical thesis is not borne out by any of the documents or events on which Louisiana relies, but that to the contrary what has been shown us leads to the conclusion that Louisiana’s preadmission territory, consistently with the Act of Admission, stopped at its coast and did not embrace any marginal sea. 1. The area which includes the present State of Louisiana was first claimed for France by La Salle in 1682, extending southward “as far as [the Mississippi’s] . . . mouth in the sea, or gulf of Mexico, about the twenty-seventh degree of the elevation of the North Pole . . . .” 114 It is apparent from the face of La Salle’s proclamation that it was the mouth of the Mississippi which defined  the southerly limit of his claim. His expression of belief that the river mouth was at “about” the 27th parallel does not indicate an intent to claim to that parallel, which is in fact some 120 miles south of the Mississippi’s mouth. In any event, the procés-verbal of Jacques de la Metairie, notary of the La Salle expedition, 115 shows that the proclamation was issued after the mouth of the Mississippi had been reached and the party had returned upstream only far enough to find solid ground for the erection of a monument, and that La Salle then thought, mistakenly in fact, that they were at about the 27th parallel. Other documents also indicate that the river mouth defined the extent of the claim and that the territory included no marginal sea whatever. 116 2. By a secret Treaty executed at Fontainebleau on November 3, 1762, France ceded to Spain “all the country known under the name of Louisiana, as well as New Orleans and the island in which the place stands.” 117 By the secret Treaty of San Ildefonso, signed October 1, 1800, Spain retroceded the “colony and province of Louisiana” to France. 118 Certainly there is nothing on the face of  either of these Treaties to indicate that France or Spain claimed any territorial sea. 3. Louisiana argues, however, that certain treaties between France, Spain, and other nations evidence such an intent. Four of these treaties concern the right of the French to fish within certain distances of the coasts of the British possessions in North America, varying from three to 30 leagues. The relevant portions do not relate to French or Spanish territory at all. 119 In another, Great Britain undertook not to permit its subjects to navigate or fish within 10 leagues of coasts occupied by Spain “in the Pacific Ocean, or in the South Seas,” so as to prevent illicit trade with Spanish settlements. 120 The Treaty does not relate to the area in question, and, far from being an assertion of a territorial claim by Spain, imposed an obligation of a limited nature on Great Britain alone. The same reasoning applies to another of these treaties, the Treaty between Spain and Tripoli, signed September 10, 1794, prohibiting the capture of any vessel within 10 leagues from coasts of the dominions of Spain. 121 Reliance is also placed on an ordinance promulgated by Philip II of Spain in October 1565, asserting rights within the visual horizon of the coasts of Spain and its possessions. 122 It may be questioned whether this ordinance  even constituted an assertion of territorial jurisdiction as it is known today, especially in view of the fact that the concept of the territorial sea did not arise in international law until after this country achieved its independence. See United States v. California, supra, 32-33. Even if it did, the ordinance can hardly be taken as applying to a territory not acquired by Spain until 200 years later or as affecting the construction of the Act admitting Louisiana to the Union 250 years later. 123 4. By the Treaty of Paris, signed April 30,1803, France ceded to the United States the Louisiana Territory with all its rights and appurtenances “as fully and in the same manner as they have been acquired by the French Republic, in virtue of the above-mentioned treaty [Treaty of San Ildefonso, Oct. 1,1800], concluded with his Catholic Majesty,” including “the adjacent islands belonging to Louisiana.” 124 To show that the Act admitting Louisiana to the Union must be construed as referring directly to this Treaty, Louisiana relies on Article III of the Treaty, which required the United States to admit “the ceded territory” to statehood as soon as possible. But since the historic documents to which our attention has been called fail to show that the ceded territory included any territorial sea, taking the Treaty as defining the scope of the Act of Admission only confirms the view that Louisiana’s maritime boundary was fixed at, and not somewhere in, the Gulf of Mexico.  5. Louisiana also asserts that about the time of its admission, the United States was claiming three leagues of territorial waters in the Gulf, and that the Act of Admission was framed with reference to that claim. However, from the great variety of documentation presented by the parties, the most that could possibly be said is that the United States, contrary to the Government’s contention, had not unequivocally asserted the applicability of the three-mile limit in the Gulf of Mexico. Assuming, as the defendants have here argued, that it would have been reasonable under international law for the United States to claim three leagues of territorial waters in the Gulf had it so chosen, we nevertheless cannot conclude that Congress meant to define Louisiana’s boundaries by reference to a rule which was the subject of so much difference among nations and which had never been adopted by this country. The terms of the Act of Admission seem to point so strongly to the contrary that it would require much more convincing evidence than this to persuade us that the construction advanced by Louisiana is correct. Furthermore, it is significant that only a few years later, Congress admitted Mississippi and Alabama to the Union, describing their boundaries as including all islands within six leagues of the shore. See pp. 81, 82, post. If the three-league provision in Louisiana’s Act of Admission was intended to reflect a policy of claiming three leagues of territorial waters, it is difficult to understand why Congress, so shortly thereafter, should have incorporated a six-league limit in an otherwise identical provision. 3. Postadmission Events. To the extent that Louisiana’s reliance on postadmission events is for the purpose of showing that the United States established' a three-league “national boundary” in the Gulf, they cannot help her case, for reasons previously discussed. Ante, pp. 30-36. We need not decide whether the United States ever claimed three leagues of  territorial waters along the entire Gulf coast, which could in a sense be said to constitute a national boundary, or whether, if it did, Louisiana would have been entitled to extend its own boundary to that distance. Under the Submerged Lands Act, Louisiana’s boundary must be measured at the time of her admission, unless a subsequent change was approved by Congress. If the Act of Admission fixed the boundary at the shore, neither action by Congress fixing greater boundaries for other States nor Executive policy on the extent of territorial waters could constitute Congressional approval of a maritime boundary for Louisiana. Louisiana, however, insists that certain of these events subsequent to admission must be considered in construing the Act of Admission. 1. We are urged to infer that since, as the Court today holds, three-league boundaries were fixed for Texas (ante, p. 64) and Florida (post, p. 121), and since, after Texas’ admission, the Treaty of Guadalupe Hidalgo fixed the starting point of the boundary between the United States and Mexico at three leagues in the Gulf, Congress must have meant to treat Louisiana equally. The inference must be based primarily on the existence of the Texas and Florida boundaries, for the Treaty of Guadalupe Hidalgo relates only to the boundary between Texas and Mexico, and tends to prove nothing more than the existence of a three-league boundary for Texas. In view of the fact that shortly after Louisiana’s admission, Congress fixed maritime boundaries for Mississippi and Alabama which, even on Louisiana’s construction, would be different than three leagues, we can discern no consistent Congressional policy toward the maritime boundaries of the Gulf States at the time of Louisiana’s admission, even if the much later actions with respect to Texas and Florida could be thought to have established such a policy. Cf. Louisiana v. Mississippi, supra, at 41. It would require clear evidence that such a policy was operative at the time  Congress passed the Act admitting Louisiana to overcome language in that Act which points so strongly against the construction urged by Louisiana. Nor does the concept of equal footing require such a construction. While the ownership of certain lands within state boundaries has been held to be an inseparable attribute of the political sovereignty guaranteed equally to all States, see United States v. Texas, 339 U. S., at 716, the geographic extent of those boundaries, and thus of the lands owned, clearly has nothing to do with political equality. A fortiori this is true in the case of maritime boundaries beyond low-water mark, since, except as granted by Congress, the States do not own the lands beneath the marginal seas. See United States v. California, supra; Alabama v. Texas, supra. 2. Certain treaties successively entered into from 1819 to 1838 by the United States with Spain, Mexico, and the Republic of Texas establishing the boundary between Texas and the United States are relied on as indicating that the State and Federal Governments thought that Congress had fixed a three-league maritime boundary for Louisiana. 125 Louisiana contends that the treaties fixed the beginning of the international boundary at a point three leagues from land, and that therefore the southwestern corner of Louisiana as well as the southeastern corner of Texas must have been regarded as extending seaward to that distance. Whether or not such reasoning is valid, the language of the treaties refutes the premise that the international boundary began three leagues from land. Both the 1819 and the 1828 treaties recited that “[t]he boundary line between the two countries, west of  the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea . . . The Treaty of 1838 referred to the Treaty of 1828, and provided for a survey of “that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulph of Mexico, to the Red river.” 126 3. In its answer to the original complaint, Louisiana alleged certain acts of sovereignty over the marginal sea and seabed and the acquiescence of the Federal Government therein. 127 Although it has now abandoned its earlier contention that these acts establish its title by prescription and estoppel apart from the Submerged Lands Act, it now urges that they indicate a subsequent practical construction of Louisiana's Act of Admission. Taking these facts as proved, they do not have the effect urged by Louisiana. They indicate only that until the 1930’s, the Federal Government may have believed that lands beneath the marginal sea belonged to the States. There is no allegation that the geographical extent of Louisiana’s assertions, assuming that such assertions were made beyond three miles, was drawn in question, or that the question of Louisiana’s boundary was considered. Some of the acts alleged constituted police power meas  ures which a State can enforce against its citizens beyond its boundaries. Skiriotes v. Florida, 313 U. S. 69. As to acts touching the development of the submerged lands themselves, the United States would have had no reason to object to activity beyond Louisiana’s boundary, since not until 1945 did the Federal Government assert any rights in the Continental Shelf for itself. If any of the other acts alleged conflicted with this Nation’s policy toward territorial waters, objection would have lain regardless of the location of the State’s boundary, and lack of objection is therefore, for the purposes of this case, inconclusive. 4. Finally, Louisiana relies on a 1954 statute of its own establishing the State’s boundary at three leagues seaward of the line between inland and open waters. Act 33 of 1954, La. Rev. Stat. 49:1. It is said that in so legislating Louisiana followed the coastline as defined in regulations promulgated by the Commandant of the Coast Guard, pursuant to the Federal Act of February 19, 1895, 28 Stat. 672, 33 U. S. C. § 151, and that because of this, and also on considerations of convenience and certainty, this state enactment should be accepted as establishing Louisiana’s coast. We think the consideration of this contention should be postponed to a later stage of this case. We decide now only that Louisiana is entitled to submerged-land rights to a distance no greater than three geographical miles from its coastlines, wherever those lines may ultimately be shown to be.",66III The ParticulaR Claims of Louisiana.
+758,8938355,1,4,"Mississippi’s claim to a three-league seaward boundary must fail largely for the same reasons that have led us to reject the similar claim of Louisiana.  The territory which now comprises the part of Mississippi lying south of the 31st parallel was originally ceded by Franee to Great Britain by the Treaty of Paris of February 10, 1763. 128 Great Britain designated this territory part of West Florida, and by proclamation of October 7, 1763, King George III described West Florida as bounded to the southward by the gulf of Mexico, including all islands within six leagues of the coast, from the river Apalachicola to Lake Pontchartrain . . . .” 129 On September 3, 1783, Great Britain and Spain signed a treaty by which Great Britain ceded this area to Spain as part of a cession embracing all of western and eastern Florida. 130 By the Treaty of San Ildefonso,- signed October 1,1800, Spain ceded to France “the colony and province of Louisiana.” See p. 72, ante. Iir the Treaty of Paris of April 30, 1803, France ceded Louisiana to the United States to the same extent as France had acquired it by virtue of the Treaty of San Ildefonso. See p. 74, ante. A dispute arose between the United States and Spain as to whether, by the Treaty of San Ildefonso, Spain had conveyed to France any land east of the Mississippi River (including any part of West Florida), and therefore whether France could have subsequently passed that territory to the United States in the Treaty of Paris. On October 27, 1810, President Madison claimed the right to possession of the area, 131 and on May 14,1812, Congress  made it part of the Mississippi Territory. 132 On March 1, 1817, Congress authorized the creation of the State of Mississippi, specifically setting out its boundaries, in part as follows: “thence due south to the Gulf of Mexico, thence west-wardly, including nil the islands within six leagues of the shore, to the most eastern junction of Pearl river with Lake Borgne . . . .” 133 (Emphasis added.) The Mississippi Constitution, approved by the Act admitting the State to the Union on December 10,1817, 134 contained an identical provision. Finally, by the Treaty of February 22, 1819, Spain purported to cede East and West Florida to the United States. 8 Stat. 254. It was determined, however, in Foster v. Neilson, 2 Pet. 253, that the portion of the State of Mississippi south of the 31st parallel passed to the United States as part of the Louisiana Purchase under the Treaty of Paris in 1803, and not as part of West Florida under the Spanish Treaty of 1819. We have already held with respect to Louisiana’s claim to a three-league maritime boundary that an Act of Admission which refers to all islands within a certain distance of the shore does not appear on its face to mean to establish a boundary line that distance from the shore, including all waters and submerged lands as well as all islands. There is nothing in Mississippi’s history, just as there is nothing in Louisiana’s, to cause us to depart from that conclusion in this instance. Indeed, Mississippi relies almost entirely on the fact that the very language which defeats its contention was repeatedly used, in the 1763 Proclamation by King George III, in the Congressional Enabling Act, and in the State Constitution, and was implicitly incorporated in mesne conveyances.  Mississippi also urges that the draftsmen of the provision must have intended to include all waters and submerged lands within six leagues from shore because the waters are very shallow and the islands are constantly shifting. This argument, however, appears only to strengthen the conclusion that it was islands upon which the provision focused, and not waters where there were no islands. We must hold that Mississippi is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. 135",The Pabticular Claims of Mississippi.
+759,8938355,1,5,"The preadmission history of Alabama is essentially the same as that of Mississippi, the portion of the State lying south of the 31st parallel having passed by the same mesne conveyances from France to the United States. That portion was incorporated into the Mississippi Territory by the Act of May 14, 1812, 136 and became a part of the State of Alabama formed out of that territory. Its Act of Admission 137 incorporated the Enabling Act, which described its boundary in part as follows: “thence, due south, to the Gulf of Mexico; thence, eastwardly, including all islands within six leagues of the shore, to the Perdido river . . . .” 138 The same reasons applicable to the claims of Louisiana and Mississippi compel us to hold that Alabama is not entitled to rights in submerged lands lying beyond three geographical miles from its coast. 139  ¡ — I J> Conclusions. On the basis of what has been said in this opinion, we reach the following conclusions: 1. As to the States of Louisiana, Mississippi, and Alabama, a decree will be entered (1) declaring that the United States is entitled, as against these States, to all the lands, minerals, and other natural resources underlying the Gulf of Mexico more than three geographical miles from the coast of each such State, that is, from the line of ordinary low-water mark and outer limit of inland waters, and extending seaward to the edge of the Continental Shelf; (2) declaring that none of these States is entitled to any interest in such lands, minerals, and resources; (3) enjoining these States from interfering with the rights of the United States therein; (4) directing each such State appropriately to account to the United States for all sums of money derived therefrom subsequent to June 5, 1950; 140 and (5) dismissing the cross bill of the State of Alabama. 141  2. As to the State of Texas, a decree will be entered (1) declaring that the State is entitled, as against the United States, to the lands, minerals, and other natural resources underlying the Gulf of Mexico to a distance of three leagues from Texas’ coast, that is, from the line of ordinary low-water mark and outer limit of inland waters; (2) declaring that the United States is entitled, as against Texas, to no interest therein; (3) declaring that the United States is entitled, as against Texas, to all such lands, minerals, and resources lying beyond that area, and extending to the edge of the Continental Shelf; (4) enjoining the State from interfering with the rights of the United States therein; and (5) directing Texas appropriately to account to the United States for all sums of money derived since June 5, 1950, from the area to which the United States is declared to be entitled. 3. Jurisdiction over this case will be retained for such further proceedings as may be necessary to effectuate the rights adjudicated herein. 4. The motions of Louisiana and Mississippi to take depositions and present evidence are denied, without prejudice to their renewal in such further proceedings as may be had in connection with matters left open by this opinion. 142 In so deciding we have not been unmindful of this Court’s liberality in original cases of “allowing full development of the facts.” See United States v. Texas, 339 U. S. 707, 715. We think, however, that the conclusions to be drawn from the historical documents relied on  by Louisiana, Mississippi, and Alabama are so clear as to leave no issue presently involved open to dispute, and that we would not be justified in postponing the granting of the relief to which we find the United States entitled as against these three States. 143 By the same token we see no need to postpone the adjudication of the issues now presented as between the United States and Texas, and we do not understand the Government indeed to contend otherwise. The parties may submit an appropriate form of decree giving effect to the conclusions reached in this opinion. It is so ordered. The Chief Justice and Mr. Justice Clark took no part in the consideration or decision of these cases. [For opinion of Mr. Justice Frankfurter, joined by Mr. Justice Brennan, Mr. Justice Whittaker and Mr. Justice Stewart, see post, p. 129.]",The PáRticular Claims op Alabama.
+760,8967934,1,1,"In 1955 the Northern Lines began investigating anew the possibility of a merger that would combine five roads — the Burlington, the SP&S, the Pacific Coast, and the Northern Lines — to form a New Company. Extensive negotiations dealing with all phases of the proposed merger were commenced. Five years later, in 1960, an agreement was finally reached. It provided that the Northern Lines, the Burlington, and the Pacific Coast  be merged into New Company, which was to acquire the subsidiaries of the merged companies as well as all their leasehold, trackage, and joint-use rights in other carriers and the terminals incident thereto. New Company would lease the SP&S, thereby acquiring that road’s subsidiaries and trackage rights. The merger agreement further provided that Northern Pacific shareholders would receive common stock of New Company on a share-for-share basis. Great Northern stockholders would receive one share of New Company common for each share of Great Northern and, in addition, one-half share of New Company $10 par 5%% preferred for each share of Great Northern held at the date of the merger, this preferred stock to be retired over a 25-year period, beginning at the fifth anniversary of the merger, and to be redeemable at the option of New Company any time after the fifth anniversary of the merger. The Burlington stock held by the Northern Lines, amounting to 97.18% of the total shares outstanding, would be canceled and the remaining shareholders given 3.25 shares of New Company common for each share of Burlington. Commission Proceedings First Report. — As a result of these renewed merger negotiations between 1955 and 1960, applications were filed in 1961 under § 5 of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U. S. C. § 5, seeking approval of the merger and authorization for the issuance of stock and securities, the assumption of obligations and other authority necessary to effectuate the merger. 5 Extensive public hearings were held in 1961 and 1962 at  which the Department of Justice, the Department of Agriculture, various railway employee groups, nine States or state regulatory agencies, and the Milwaukee and the Chicago & North Western Railway Company (North Western), inter alia, actively opposed the merger as proposed. Shippers and related interest groups appeared in support of the proposal. The Hearing Examiner submitted a report in 1964 recommending approval of the merger and the related transactions, subject to certain protective conditions. The Commission heard oral argument and in a report dated March 31, 1966 (First Report), rejected the Examiner’s recommendation and disapproved the merger by a vote of 6 to 5, 6 The applicants petitioned for a reconsideration, asserting that they were willing to accept all protective conditions sought by the Milwaukee and another affected road, the North Western, that they had entered into attrition agreements with the objecting unions for the protection of the employees, and that the merger would yield dollar savings greater than those estimated in the First Report. While this petition was pending before the Commission, the applicants entered into agreements with the North Western and the Milwaukee which provided that the merger applicants would agree to all the conditions sought by those roads; the Milwaukee and the North Western then agreed to support the merger. 7 Thereafter, these roads withdrew their opposition to the merger and urged the Commission to approve it. Approval was advocated or objections withdrawn by a number of parties who had previously either completely opposed the merger or opposed it absent imposition of  adequate protective conditions. These included the Department of Agriculture, the Public Utility Commissioner of Oregon, and the States of North Dakota, South Dakota, Iowa, Wisconsin, and Michigan. 8 Second Report. — On January 4, 1967, the Commission granted the application and reopened the proceedings for reconsideration and further hearings. Although the order by its terms reopened the proceedings on all issues, the hearing was limited to taking evidence on the question of the amount of savings the merger would produce in light of the agreement between the applicants and the Milwaukee and the North Western, and the other changes relevant to savings which had occurred after the close of the first hearing. Oral arguments followed. On November 30, 1967, the Commission handed down a report and order (Second Report) approving the proposed merger by a vote of 8 to 2 as consistent with the public interest and imposing certain conditions to protect other carriers. 9 On April 11, 1968, the Commission denied an application for reconsideration. 10  District Court Proceedings The United States, acting through the Department of Justice, filed a complaint on May 9, 1968, in the United States District Court for the District of Columbia challenging the Commission order approving the merger. Other parties intervened, some as plaintiffs 11 and some as defendants. 12 After preliminary proceedings had resulted in a stay of the Commission’s order pendente lite, the case was submitted on the merits to the three-judge court designated in accordance with 28 U. S. C. §§2325 and 2284. The court, in an opinion by Senior Circuit Judge Charles Fahy, unanimously sustained the Commission, holding that in approving the merger and the related transactions the Commission was guided by the applicable legal principles and that its findings were supported by substantial evidence. The court dismissed the complaints, vacated the stay pendente lite, and then stayed its order pending appeal to this Court. Upon the filing of appeals with this Court, we ordered a further stay pending final disposition.",The Present Merger
+761,8967934,1,2,"Four appeals were taken from the District Court’s judgment; the Department of Justice (No. 28), the Northern Pacific Stockholders’ Protective Committee  (No. 38), the City of Auburn, Washington (No. 43), and the Livingston Anti-Merger Committee (No. 44). Each of the four appellants attacks the approval of the merger on different grounds. Because these challenges cover every aspect of the merger, and because of the rather complex expositions of fact necessary to the disposition of each objection, these appeals will be dealt with seriatim. With the cases in this posture the Court must review the proceedings before the Commission to “determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence.” Penn-Central Merger and N&W Inclusion Cases, 389 U. S. 486, 499 (1968). It should be emphasized, however, as Mr. Justice For tas noted, speaking for the Court in a similar context, “[w]ith respect to the merits of the merger . . . our task is limited. We do not inquire whether the merger satisfies our own conception of the public interest. Determination of the factors relevant to the public interest is entrusted by the law primarily to the Commission, subject to the standards of the governing statute.” Id., at 498 — 499. The governing statute here is § 5 of the Interstate Commerce Act, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U. S. C. § 5. The Act provides that the Commission is to approve a proposed merger when it is “consistent with the public interest” and the terms of the proposal are “just and reasonable.” In determining whether this standard is met, the Commission is to “give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads  in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.” 49 U.. S. C. § 5 (2)(c). In addition to the four factors listed above, the Commission must also consider the anticompetitive effects of any merger or consolidation, because under § 5 (11) of the Interstate Commerce Act any transaction approved by the Commission is relieved of the operation of the antitrust laws. McLean Trucking Co. v. United States, 321 U. S. 67, 83-87 (1944). In its First Report the Commission found that the merger would result in improved service to shippers in areas served by the Northern Lines because it would enable the roads to make more efficient use of their facilities and would permit the use of the shortest and swiftest internal routes available. In addition, the merger was found to afford estimated savings of approximately $25 million per year by the tenth year after merger. However, the Commission also found that as a consequence of the merger more than 5,200 jobs would be eliminated, this being a significant source of the reduced operating costs. The Commission then analyzed the anticompetitive impact of the proposal and found it would eliminate substantial competition between the Northern Lines in the Northern Tier. The Commission reasoned that even with protective conditions attached to the merger for the benefit of the Milwaukee, it would remain a weak carrier in the Northern Tier when compared with New Company. The Commission, by a vote of 6 to 5, as noted earlier, concluded that the proposed merger plan did not afford benefits of such scope and importance as to outweigh the lessening of rail competition in the Northern Tier; the merger was disapproved. When the Commission reopened the proceedings in  1967, it considered additional evidence including the changed positions of some of the major objectors, and new evidence on the savings to be realized from the merger; the Second Report was then issued. The Commission found that rather than the $25 million previously estimated, in fact more than $40 million per year in savings would be realized by the tenth year after merger. It also noted that agreements entered into by the applicants and their employees had removed objections of various unions to the merger and that no jobs would be eliminated except in the normal course of attrition. Aside from these changes, and the acceptance by the merger applicants of protective conditions sought by the Milwaukee, the record before the Commission was the same as that on which the First Report was based. The Second Report acknowledged that the First Report had failed to give appropriate weight to one of the aims of the national transportation policy and § 5 of the Interstate Commerce Act, to facilitate rail mergers “consistent with the public interest” in the development of a comprehensive national transport system, and that this had led the Commission to view the merger proposal too stringently. It then went on to re-examine the anti-competitive effects of the merger, weighing them against the savings and benefits to the public, shippers, and the roads, and, accentuating the new and strengthened competitive posture of the Milwaukee, it concluded that the merger proposal should be approved because its benefits outweighed its anticompetitive effects in the Northern Tier region. That this was not an easy problem for the Commission is attested by the lengthy history of attempts to merge these lines which dates back three-quarters of a century. The efforts to establish a more unified rail transportation system in the Northern Tier represent a 20th  century phase of the development of the American West; it brackets a period of enormous growth and change, and of new developments in transportation and public needs. Against this background it is not surprising that the members of the Commission were divided 6 to 5 against the merger on the First Report in 1966 and 8 to 2 in favor of the merger on the Second Report in 1967 after changes had been made in the plan to meet many of the objections raised. Nor is it remarkable that two great departments of government, each charged with responsibility to protect the public interest, took opposing positions; vigorous advocacy of divergent views on this difficult problem has narrowed and sharpened the issues and aided the Court in their resolution, ensuring that no factor which ought to be considered would elude our attention. Appellants’ Contentions (a) No. 28, Department of Justice. — The United States, through the Antitrust Division of the Justice Department, challenges the Commission’s approval of the merger primarily on the ground that the Commission in the Second Report did not properly apply the standard of §5(2)(b) of the Interstate Commerce Act in determining that the merger is consistent with the public interest. The Department contends that under the statute when a proposed merger will result in a substantial diminution of competition between two financially healthy, competing roads, its anticompetitive effects should preclude the approval of the merger absent a clear showing that a serious transportation need will be met or important public benefits will be provided beyond the savings and efficiencies that normally flow from a merger. The Department urges that the instant case presents a merger between two financially healthy carriers, each of which is the prime competitor of the  other in the area served. Admittedly the Commission found in its First Report that the merger would result in a “drastic lessening of competition.” The Department argues that because no benefits are shown to flow from the merger beyond the economies and efficiencies normally resulting from unified operations, the Commission has not satisfied the statutory standard and that the District Court erred in refusing to enjoin the merger. The Department maintains that prior to 1920 the antitrust laws and their underlying policies applied with full force to railroads and that the Transportation Act of 1920, which commanded an affirmative development by the Commission of a nationwide plan “for the consolidation of the railway properties of the continental United States into a limited number of systems,” 41 Stat. 481, was primarily intended to promote the absorption of financially weak by strong carriers. To the extent that the 1920 Act did not intend to encourage rail mergers producing only the usual or “normal” kinds of merger benefits, the Department contends that the policies of the antitrust laws remain the guiding standard by which these consolidations are to be judged. The Transportation Act of 1940, according to the Department, did not alter this policy, but only eliminated the Commission’s duty to formulate a national plan and to confine mergers to the four corners of this plan. The Department suggests that when the Commission is determining whether a merger or consolidation is consistent with the public interest, it must analyze the merger in terms of its anticompetitive impact and, if that impact would be great, then determine whether the merger is required by a serious transportation need or necessary to secure important public benefits. This standard, it urges, is “consistent with both the legislative history of [§ 5] and, more generally, with the goal of substantial  simplification of railroad systems that underlay the Transportation Acts of both 1920 and 1940.” 13 The Department of Justice is correct in stating that one focal point of concern throughout the legislative consideration of the problems of railroads has been the weak carrier and its preservation through combination with the strong. Congress saw that as one — but only one — means to promote its objectives. The 1920 statute as a whole also embodied concern for economy and efficiency in rail operations. See Railroad Commission of California v. Southern Pacific Co., 264 U. S. 331, 341 (1924); Texas & Pacific R. Co. v. Gulf, Colorado & Santa Fe R. Co., 270 U. S. 266, 277 (1926); Texas v. United States, 292 U. S. 522, 530 (1934); United States v. Lowden, 308 U. S. 225, 232 (1939). Thus, a rail merger that furthers the development of a more efficient transportation unit and one that results in the joining of a “sick” with a strong carrier serve equally to promote the long-range objectives of Congress and, upon approval by the Commission, both are immunized from the oper  ation of the antitrust laws. The policy of the 1920 Act has been consistently interpreted in this way. We find no basis for reading the congressional objective as confining these mergers to combinations by which the strong rescue the halt and the lame. In New York Central Securities Corp. v. United States, 287 U. S. 12 (1932), this Court cautioned that “[t]he fact that the carriers’ lines are parallel and competing cannot be deemed to affect the validity of the authority conferred upon the Commission. . . . The question whether the acquisition of control in the case of competing carriers will aid in preventing an injurious waste and in securing more efficient transportation service is thus committed to the judgment of the administrative agency upon the facts developed in the particular case.” Id., at 25-26. Although this decision was prior to the passage of the Transportation Act of 1940, that Act in no way altered the basic policy 14 underlying the 1920 enactment. We recognized in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 319 (1954), that Congress adopted the recommendations of the Committee of Six when it passed the 1940 Transportation Act and relieved the Commission of its duty to promulgate a national railroad consolidation plan. That Committee’s report recognized economies and efficiencies of operation as well as the elimination of circuitous routing to be benefits that could  flow to the public through consolidations. 15 As recently as County of Marin v. United States, 356 U. S. 412 (1958), this Court observed: “The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940 . . . was to facilitate merger and consolidation in the national transportation system. In the Transportation Act of 1920 the Congress had directed the Commission itself to take the initiative in developing a plan ‘for the consolidation of the railway properties of the continental United States into a limited number of systems/ 41 Stat. 481, but after 20 years of trial the approach appeared inadequate. The Transportation Act of 1940 extended § 5 to motor and water carriers, and relieved the Commission of its responsibility to initiate the unifica-tions. ‘Instead, it authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness . . . .’ (Emphasis added.) Schwabacher v. United States, 334 U. S. 182, 193 (1948). . . In short, the result of the Act was a change in the means, while the end remained the same. The very language of the amended ‘unification section’ expresses clearly the desire of the Congress that the industry proceed toward an integrated na  tional transportation system through substantial corporate simplification.” Id., at 416-418. (Emphasis in original.) (Footnotes omitted.) We turn now to consider the appropriate weight to be accorded by the Commission to antitrust policy in proceedings for approval of a merger. The role of antitrust policy under § 5 was discussed comprehensively and dispositively in McLean Trucking Co. v. United States, 321 U. S. 67 (1944), a case dealing with a merger of several large trucking companies. Since this Court has nowhere else dealt so definitively with this issue, the analysis by Mr. Justice Rutledge in the opinion for the Court merits extended quotation: “The history of the development of the special national transportation policy suggests, quite apart from the explicit provision of § 5 (11), that the policies of the anti-trust laws determine ‘the public interest’ in railroad regulation only in a qualified way. And the altered emphasis in railroad legislation on achieving an adequate, efficient, and economical system of transportation through close supervision of business operations and practices rather than through heavy reliance on the enforcement of free competition in various phases of the business, cf. New York Central Securities Corp. v. United States, 287 U. S. 12, has its counterpart in motor carrier policy. . . . “[Tjhere can be little doubt that the Commission is not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws. Congress authorized such consolidations because it recognized that in some circumstances they were appropriate for effectuation of the national transportation policy. It was informed that this  policy would be furthered by ‘encouraging the organization of stronger units’ in the motor carrier industry. And in authorizing those consolidations it did not import the general policies of the anti-trust laws as a measure of their permissibility. It in terms relieved participants in appropriate mergers from the requirements of those laws. § 5 (11). In doing so, it presumably took into account the fact that the business affected is subject to strict regulation and supervision, particularly with respect to rates charged the public — an effective safeguard against the evils attending monopoly, at which the Sherman Act is directed. Against this background, no other inference is possible but that, as a factor in determining the propriety of motor-carrier consolidations the preservation of competition among carriers, although still a value, is significant chiefly as it aids in the attainment of the objectives of the national transportation policy. “Therefore, the Commission is not bound ... to accede to the policies of the anti-trust laws .... “Congress however neither has made the anti-trust laws wholly inapplicable to the transportation industry nor has authorized the Commission in passing on a proposed merger to ignore their policy. . . . Hence, the fact that the carriers participating in a properly authorized consolidation may obtain immunity from prosecution under the anti-trust laws in no sense relieves the Commission of its duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy. “In short, the Commission must estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed  consolidation and consider them along with the advantages of improved service, safer operation, lower costs, etc., to determine whether the consolidation will assist in effectuating the over-all transportation policy. Resolving these considerations is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the transportation industry. Congress left that task to the Commission .... ‘The wisdom and experience of that commission/ not of the courts, must determine whether the proposed consolidation is ‘consistent with the public interest.’ [Citations omitted.] If the Commission did not exceed the statutory limits within which Congress confined its discretion and its findings are adequate and supported by evidence, it is not our function to upset its order.” Id., at 83-88. (Footnotes omitted.) Accord, Minneapolis & St. L. R. Co. v. United States, 361 U. S. 173, 186-188 (1959); Seaboard Air Line R. Co. v. United States, 382 U. S. 154, 156-157 (1965); see Florida East Coast R. Co. v. United States, 259 F. Supp. 993 (D. C. M. D. Fla. 1966), aff’d per curiam, 386 U. S. 544 (1967). The Department urges that the Commission failed to give sufficient weight to the diminution of competition between the Northern Lines — in short, that it failed to strike the correct balance between antitrust objectives and the overall transportation needs that concern Congress. This contention tends to isolate individual factors that are to enter into the Commission’s decision and view them as the controlling considerations. “Competition is merely one consideration here,” Penn-Central Merger and N&W Inclusion Cases, 389 U. S. 486, 500 (1968). And, we might add, it is a consideration that is implied and is in addition to the four specifically men  tioned in § 5 (2) (c) of the statute. In our view the Commission, in both reports, exhibited a concern and sensitivity to the difficult task of accommodating the regulatory policy based on competition with the long-range policy of achieving carrier consolidations. Indeed, this led the Commission to disapprove the merger by a margin of one vote in 1966 after five years of study because of specified infirmities in the plan. The Commission reached a different conclusion by a decisive vote in 1967 on a supplemental record which reflected substantial changes in the merger plan. Our review, like that of the District Court, reveals substantial record evidence to support the Commission’s determination that the conditions agreed to by the applicants, the attrition agreements with the employees, the enhanced savings found in the Second Report, and the service improvements to shippers and the public found in both the First and Second Reports outweighed the loss of competition between the Northern Lines. Striking the balance is for the Commission and we cannot say that it did so improperly. The benefits to the public from this merger are important and deserve elaboration. The Commission found that substantial service benefits would flow from the merger. Shippers will benefit from improved car supply, wider routing, better loading and unloading privileges, and improved tracing and claims service. New Company will be able to use the shortest and most efficient routes while eliminating yard interchange delays, thus providing shippers with faster service. The Commission found that the economies New Company will realize as a result of consolidating yards, repair facilities, and management, eliminating duplicate train services and pooling of cars and trains will result in lower rates to shippers and receivers. In addition, the opening of strategic gateways to the Milwaukee will remove artificial barriers to  the development of new markets, sources of supply, and services. The Milwaukee objections prior to the First Report were based on the adverse impact of the merger on its competitive position and, in turn, on shippers and the public. Following the First Report the Northern Lines accepted conditions urged by the Milwaukee. Under the new conditions the posture of. the Milwaukee, lying largely between the two Northerns and handicapped by limitations at both eastern and western terminals, will be greatly improved. Absent the protective conditions it would continue to be virtually strangled by the unified system; with them the Milwaukee gives prospect of affording substantial competition to the merged lines and will be placed in the position that at its inception it hoped to achieve. Its past failure to become a meaningful competitor came in large part because its lines did not reach into Portland, Oregon, or into the southwest terminal of the Northern Lines in California. In a strictly competitive situation it is understandable that neither of the Northern Lines would interchange traffic with the Milwaukee except on its own terms and this destined that the Milwaukee would fail to become a true transcontinental line even though its western terminus lay within a few miles of Portland with the latter’s access to the sea. The Milwaukee north-south traffic on the West Coast was limited to the short run from Seattle to Longview, barely half the distance from the Canadian border to Washington’s southern border. Moreover, westbound traffic destined for points on one of the Northern Lines was taken over by one of them at St. Paul or Minneapolis notwithstanding Milwaukee’s line from there deep into Washington. In the proceedings prior to 1966 many objecting shippers joined the Milwaukee in pointing out that rates and limitations on Milwaukee’s service  precluded full use of the Milwaukee to the disadvantage of both shippers and the carrier. The conditions imposed by the Commission’s Second Report will alter that situation and substantially enlarge the Milwaukee’s competitive potential between St. Paul and Minneapolis and the West Coast due to enlargement of its long-haul capability. Shippers will be afforded more flexible service. Another condition attached to the Commission’s approval will permit the Milwaukee to run lines from its present western terminus into Portland, giving it a link with the Southern Pacific. All this will enable the Milwaukee to compete with the Northern Lines for east-west traffic and some north-south traffic as well as linkage with-Canadian carriers to the north, which was previously the exclusive domain of one or both of the Northerns. Other conditions of lesser consequence will buttress the newly designed competitive posture of the Milwaukee. The contention that the Commission failed to project an analysis of the relative position of the Milwaukee visa-vis the merged Northerns discounts the difficulty of precise forecasts and tends to overstate the need for such projections. The Commission can deal only in the probabilities that will arise from the Milwaukee’s improved posture as a genuine competitor for traffic over a wide area, something it had never been able to achieve. After the merger it will afford shippers a choice of routes and service negating the idea that all rail competition will disappear in the Pacific Northwest. (b) No. 38, The Northern Pacific Stockholders’ Protective Committee. — The Northern Pacific Stockholders’ Protective Committee 16 has appealed the District Court’s affirmance of the Commission’s approval of the pro  posed merger’s stock exchange provisions. To put each of the Committee’s contentions in perspective requires that we describe the source of the Committee’s concern and how the applicants dealt with it in reaching the present merger terms. The Committee’s continuing opposition to the merger relates to Northern Pacific’s land holdings. The Northern Pacific Railway Company holds more than two million acres in fee and has mineral rights in another six million acres. These lands are rich in natural resources, including coal, oil, and timber, and are important sources of income. The negotiations between the parties centered to a large extent on these lands. Northern Pacific’s financial adviser had suggested that although Great Northern had a better history of earning power and its stock had generally sold at a level above that of Northern Pacific’s, the large land holdings of the Northern Pacific with their vast resources were of sufficient worth to justify a share-for-share exchange ratio between the Great Northern and the Northern Pacific. The Great Northern, however, insisted on a 60-40 stock exchange ratio because of its traditional rail strength. After further negotiations the roads realized that the lands were a stumbling block to the merger and considered several modes of segregating them from Northern Pacific’s rail properties. One was to create two classes of New Company stock, one being issued to Northern Pacific shareholders and representing the natural resource properties, and another being issued to both Great Northern and Northern Pacific shareholders and representing Northern Pacific’s rail properties. The second solution considered was spinning off the natural resource lands into another corporation and using the proceeds from an issuance of its stock as a Northern Pacific contribution to the merger. Neither of these solutions was acceptable to the negotiators, the former because of the problems inherent in  administering a corporation for two classes of stockholders with divergent interests, and the latter because of potential litigation with bondholders and adverse tax consequences to Northern Pacific. The negotiators concluded that the merger plan must include the land holdings of Northern Pacific. Thereafter both roads made concessions, the Great Northern abandoning its claim for a permanently larger share for its stockholders and the Northern Pacific abandoning its claim for immediate equality. The result was an exchange ratio giving immediate recognition to Great Northern’s greater earning power and historically higher market price while giving Northern Pacific’s shareholders equal participation in the earnings of the enterprise on a long-term basis. The terms of the merger, as worked out by the negotiators over a five-year period, were approved by both roads’ financial advisors, their boards of directors and their stockholders. 17 Shortly thereafter the Northern Pacific Stockholders’ Protective Committee was formed. When the merger proposal was submitted to the Commission for approval the Stockholders’ Committee opposed the exchange ratio, pressing its claim that the natural resource lands were undervalued and that the Commission either should adjust the exchange ratio in accordance with the Committee’s estimates of the property’s worth or, preferably, should order the lands segregated and placed in a separate corporation, the stock of  which would be available to Northern Pacific shareholders. The Hearing Examiner’s report reviewed the extensive negotiations between the parties and the modes by which they reached a valuation of the contribution each road’s shareholders were making to New Company, concluding that there had been good-faith arm’s-length bargaining and that the result of this bargaining fairly reflected each group of stockholders’ contribution to New Company. The Examiner found the Committee’s contention on value to be unsupported by record evidence and its spinoff proposal to be unfair to Northern Pacific shareholders. He recommended approval of the terms of the exchange. The Commission’s First Report, which disapproved the merger, did not reach the issue of the exchange ratio. When in 1967 the Commission reconsidered its earlier decision, it refused the Committee’s request that it reopen the record for the taking of new evidence on the exchange ratio, but did hear oral argument on the matter. The Committee again pressed its contentions. The Commission’s Second Report rejected the Committee’s arguments upon basically the same grounds given by the Hearing Examiner in his 1964 Report. The Committee continued its attack on the stock exchange ratio in the District Court and urged that the Commission had abused its discretion in refusing to reopen the record to receive updated evidence on the exchange ratio. The District Court ruled that the Commission’s finding that thé terms were just and reasonable was supported by substantial evidence. It also held that the evidence the Committee proffered was not of sufficient importance to have affected the ultimate fairness of the Commission’s finding. The discretion exercised by the Commission in refusing to reopen the record was, therefore, found free from abuse. The Committee now contends that the record lacks substantial evidence to support the Commission’s determina  tion that the exchange ratios are just and reasonable; that the Commission failed to consider the whole record before it; that the Commission erred, abused its discretion, or denied appellant due process of law in not permitting the record to be updated respecting the 1967 worth of the contributions being made by each group of shareholders, especially respecting Northern Pacific’s natural resource properties; that the record does not contain substantial evidence to support the determination of the Commission that the proposed segregation of the natural resource lands is a proposal lacking merit and is unfair to Northern Pacific shareholders; and that the District Court erred in upholding the Commission’s action. Our review leads us to reject these contentions. Under § 5 (2) of the Interstate Commerce Act, the Commission is to approve only such merger terms as it finds to be just and reasonable. The Commission, as had the negotiators and the Hearing Examiner, fully considered the proposed segregation of the natural resource properties and concluded that it was neither feasible nor fair to Northern Pacific stockholders. That determination is supported by substantial record evidence. In passing we note that although the Commission in fulfilling its statutory responsibilities is to carefully review all of the terms of a merger proposal and determine whether they are just and reasonable, it is not for the agency, much less the courts, to dictate the terms of the merger agreement once this standard has been met. It can hardly be argued that the bargaining parties were not capable of protecting their own interests. The Commission’s unwillingness to reopen the record in 1967 for the taking of new evidence on the exchange ratio was not an abuse of discretion nor did it deny the appellant due process of law. What this Court said in  Interstate Commerce Commission v. Jersey City, 322 U. S. 503 (1944), is applicable here: “Administrative consideration of evidence — particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it — always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearing, as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.” Id., at 514-515. Moreover, as this Court noted in United States v. Pierce Auto Freight Lines, 327 U. S. 515 (1946), “it has been held consistently that rehearings before administrative bodies are addressed to their own discretion. . . . Only a showing of the clearest abuse of discretion could sustain an exception to that rule.” Id., at 535. We find nothing in the Committee’s arguments to persuade us that such an abuse occurred when the Commission refused to take further evidence on the question of each group of shareholders’ contribution to the merger. Schwabacher v. United States, 334 U. S. 182 (1948), relied upon by the Committee, is not to the contrary.  That decision requires that the value of a stockholder’s contribution to a merger be determined in accord with the “current worth” of his equity. That does not mean there must be a repeated updating of the evidence before the agency; in a complex merger such as this that would lead to interminable delay. A determination that the terms of a merger proposal fairly reflect the current worth of each shareholder’s contribution meets the standards of Schwabacher if the agency had before it evidence as to the worth of the shareholders’ contributions at the time of the submission of the proposal, and there is no showing that subsequent events have materially altered the worth of the various shareholders’ contributions to the merger. The evidence the appellant Committee presents to this Court, purporting to show that Northern Pacific’s stock is presently worth considerably more, vis-á-vis Great Northern’s, than was the case at the time of the initial hearings, does show fluctuations in the worth of the two companies’ stock. But we cannot say that those fluctuations, in the context of this merger proposal, are sufficient to show that the worth of the various shareholders’ contributions to the merger has been materially altered. We agree with the District Court that the Commission’s refusal to reopen the record for further evidence was not an abuse of discretion. (c) No. 48, City of Auburn. — The City of Auburn, Washington, opposes the merger for the reasons set out in the brief of the Department of Justice, and, in addition, contends that the Commission failed to adequately assess the impact of the merger upon affected communities and explain why the benefits of the merger convincingly outweigh its adverse effects on these communities. Auburn also objects to the refusal to open the 1967 hearings for further testimony concerning the impact of the merger upon Auburn. Auburn is a city of 19,000 inhabitants in western Washington, halfway between Seattle and Tacoma,  which serves as the western terminus for the Northern Pacific’s transcontinental trains. A substantial part of the city’s economy is dependent upon that road’s activity there. The record before the Commission indicated that if the merger were approved, the Auburn yard would be closed, and that the town of Everett, on the other side of Seattle, would become the western terminus for all of New Company’s transcontinental trains. Insofar as the city challenges the Commission’s action on the same grounds as the Department of Justice, our disposition of the appeal in No. 28 applies here. As for the 1967 hearings, the city failed to object to the scope of the Commission’s reopened hearings and made no attempt to present evidence at those hearings. Neither did it challenge the Commission’s findings concerning the impact of the merger upon Auburn. Only when it came before the District Court did it raise its contentions. This alone might preclude its attack on the merger. But we need not decide that issue because we find that the Commission did not abuse its discretion in refusing to take evidence in 1967 as to the impact of the merger on Auburn. In the record upon which the Second Report is based the Commission had evidence of the impact of the yard’s closing on the city. Thus, even assuming the closing, the Commission found that the long-run effect of the merger would be to benefit communities in the Northern Tier, such as Auburn, and that the brief and transitory dislocations the merger would occasion were not sufficient to outweigh the merger’s benefits. We find this to be a justifiable conclusion supported by substantial evidence on the record. We can hardly imagine any merger of substantial carriers that would not cause some dislocations to some shippers, some communities, and some employees. The plans for the Auburn yard now seem to be altered; the applicants stated before the District Court and again  before this Court that they now intend to maintain the Auburn yard. As a result, employment in Auburn will be largely unaffected by the merger. Since we conclude that the Commission properly determined that Auburn’s hardships and those of communities similarly situated, as posited on the record, did not warrant disapproval of the merger, it is difficult to imagine any basis upon which we might find the Commission to have abused its discretion in not taking further evidence on the merger’s impact on Auburn when the principal harm of which the city earlier complained has disappeared. (d) No. 44, Livingston Anti-Merger Committee. — Citizens of Montana, living in and about Livingston, Helena, and Glendive, who appear here as the Livingston Anti-Merger Committee, attack the merger on several grounds. As a prelude to discussing these contentions, the historical facts upon which the Committee’s attack is based should be stated. In 1864 Congress created the Northern Pacific Railroad Company (Railroad) and granted it authority to build a railroad from Lake Superior to Puget Sound. To subsidize this enterprise Congress granted Railroad a right-of-way and alternate sections of land along that right-of-way. According to the terms of Railroad’s charter it could not encumber its franchise or right-of-way without congressional approval, and was not authorized to merge with another road, except under limited conditions not relevant here. 18 In 1870 Congress passed a resolution allowing Railroad to issue bonds secured by its property and subject to foreclosure for default. Shortly thereafter a mortgage was pledged, only to be foreclosed in 1875. After the foreclosure proceedings the property was struck off to a committee of bondholders. Later, however, the property was returned to Railroad pursuant to a reorganization plan. Although Congress did not further author  ize mortgaging of the franchise or right-of-way, Railroad again encumbered its property by pledging several mortgages. In 1896, after these mortgages had been defaulted upon and foreclosure proceedings had been commenced, a negotiated settlement was made which resulted in the property of Railroad being sold to the Northern Pacific Railway Company (Railway), which has operated under Railroad’s franchise and upon its right-of-way ever since. Railway presently owns 97% of the stock of Railroad, which is no longer an operating company. On the basis of these facts Livingston contends that the Interstate Commerce Commission had no authority to approve the proposed merger because Railway does not own the franchise and right-of-way involved in this merger, and Railroad is not a party to the merger. Livingston argues that the 1896 foreclosure was a sham and it actually was a sale of Railroad property to Railway; because Congress never authorized that sale, it is void. In addition, Livingston contends that the mortgages that led to the 1896 foreclosure were not authorized by Congress; therefore, they could not constitute the basis for a valid foreclosure and liquidation. The claimed consequence is that the title to the franchise and right-of-way remains in Railroad. Livingston argues that even if it should be held that Railway does own the franchise and right-of-way, under the 1864 charter of Railroad, to which Railway succeeded, no merger involving these properties can take place without congressional approval, and such approval has not been procured. Finally, Livingston urges that the Commission and the District Court failed to properly deal with these contentions and make specific findings as to the Commission’s jurisdiction. The Commission was presented with these arguments and found them to be without merit. The District Court affirmed the Commission, ruling that it had not erred in refusing to disapprove the merger because of appel  lant’s claims and had not erred in refusing to litigate their merits. We affirm the District Court. Section 5 (2) (a) of the Interstate Commerce Act provides in pertinent part: “(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph— “(i) for two or more carriers to consolidate or merge their properties or franchises, or any part thereof, into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership . . . .” 49 U. S. C. §5 (2) (a). The premise of Livingston’s position is that under this statute before the Commission can assume jurisdiction over a merger application it must determine that the applicants have proper legal title to the rights and property which they seek to bring into the merger. This is an erroneous assumption. The Commission is not required to deal with the subtleties of “good title” before assuming jurisdiction over a § 5 matter. Cf. O. C. Wiley 6 Sons v. United States, 85 F. Supp. 542, 543-545 (D. C. W. D. Va.), aff’d per curiam, 338 U. S. 902 (1949); Walker v. United States, 208 F. Supp. 388, 396 (D. C. W. D. Tex. 1962); Interstate Investors, Inc. v. United States, 287 F. Supp. 374, 392 n. 32 (D. C. S. D. N. Y. 1968), aff’d per curiam, 393 U. S. 479 (1969). And because a Commission order under § 5 (2) “is permissive, not mandatory,” New York Central Securities Corp. v. United States, 287 U. S. 12, 26-27 (1932), the approval of a merger proposal does not amount to an adjudication on any such questions. These are matters for the courts, not for an agency that has responsibility in the realm of regulating transportation systems. In the instant case there were ample grounds for the Commission’s assumption of jurisdiction over the appli  cants. Although the validity of Railway’s claim that it is Railroad’s successor in interest and has good title to all of Railroad’s rights and properties has never been judicially determined, this Court has impliedly recognized it several times. In Northern Pacific R. Co. v. Boyd, 228 U. S. 482 (1913), we held that a creditor of Railroad had an assertable claim against the equity of Railroad’s shareholders represented by Railway’s assets because the foreclosure amounted to little more than a judicially approved reorganization in which the shareholders of the old company became the shareholders of the new. As against a bona fide creditor of Railroad, we found the judicial sale ineffective to bar his rights. However, we also stated that “[a]s between the parties and the public generally, the sale was valid. . . . [T]he Northern Pacific Railroad was divested of the legal title [to its properties] . . . .” Id., at 506. In United States v. Northern Pacific R. Co., 311 U. S. 317 (1940), we described some of the history of the appellee company as follows: “Pursuant to foreclosure proceedings the Northern Pacific Railway Company acquired title to the railroad, the land grant, and all other property of the original corporation and has since operated the road and obtained patents for millions of acres under the land grants.” Id., at 328. In addition, Attorney General Harmon in 1897 advised the Secretary of the Interior that Railway had a right, as successor in interest of Railroad, to patents on land grants made to Railroad. 21 Op. Atty. Gen. 486. The Secretary of the Interior thereafter treated Railway as Railroad’s legal successor and patented large amounts of land to Railway. When in 1905 the then Secretary of the Interior asked then Attorney General Moody, later an Associate Justice of this Court, about the right of  Railway to Railroad’s land grants, Mr. Moody, after investigating the matter, reaffirmed his predecessor’s conclusion that Railway was Railroad’s legitimate successor in interest. 25 Op. Atty. Gen. 401. In 1954 a committee of Railroad’s minority shareholders sued Railway seeking to have the 1896 foreclosure set aside and all titles,and franchises declared to be in Railroad and to obtain an accounting from Railway for all properties and profits received from 1896 through 1954. In an exhaustive opinion Judge Edward A. Tamm of the United States District Court for the District of Columbia held the action barred by laches and dismissed the complaint. Landell v. Northern Pacific R. Co., 122 F. Supp. 253 (D. C. D. C. 1954), aff’d, 96 U. S. App. D. C. 24, 223 F. 2d 316, cert. denied, 350 U. S. 844 (1955). In this context we think the Commission did not err in assuming jurisdiction over the applicants while refusing to adjudicate the merits of Railway’s title. As the District Court stated, “[f]or purposes of merger proceedings it could rely on the existing judicial records . . . supplemented by the opinions of two Attorneys General.” 19 We are then faced with the contention of Livingston that Railway is prohibited from participating in the merger and that the Commission is barred from approving it by the terms of Railroad’s charter. That charter does not authorize Railroad to merge with the applicant companies and prohibits the mortgaging of its property in the absence of congressional consent. If Railway is Railroad’s successor in interest, Livingston contends, it is bound by the provisions of Railroad’s charter, and those provisions would be violated by the proposed merger and issuance of securities incident thereto. Livingston argues that because the Act chartering Railroad is a law as much as it is a grant, see Oregon & California R. Co. v. United States, 238 U. S. 393, 427 (1915), it is bind  ing upon the Commission and makes the Commission’s approval of the merger unlawful. Livingston relies upon Union Pacific R. Co. v. Mason City & Fort Dodge R. Co., 199 U. S. 160 (1905), as standing for the proposition that statutory restrictions on a predecessor federal railroad company survive a foreclosure sale and apply to a successor private railroad company operating on the original company’s rights and franchise. We do not find the Mason City decision to be controlling, despite its somewhat similar legal and factual context. In 1862 Congress chartered the Union Pacific Railroad Company and authorized it to build a transcontinental railroad. In 1865 Railroad, pursuant to congressional authorization, pledged a mortgage secured by its right-of-way and franchise to gain monies necessary for construction. In 1871 Congress granted Railroad authority to issue bonds for the construction of a bridge over the Missouri River, that grant being conditioned upon the bridge’s being open for the use of all roads for a reasonable compensation, to be paid to the owner of the bridge. This condition was one generally inserted by Congress in statutes authorizing bridge construction. Sometime after the bridge was built the 1865 mortgage was foreclosed and the Union Pacific Railroad Company, a Utah corporation, purchased the assets of the federal corporation. It thereafter refused to allow any but its own trains to use the bridge, contending that as purchaser under the foreclosure of the 1865 mortgage, it was not bound by the 1871 statute’s conditions. This Court rejected that contention and concluded that the conditions applied to the Utah corporation, reasoning that the purpose of Congress in authorizing the construction of the bridge required that the conditions appended to that authorization attach to the bridge and bind its owner. The instant case is quite different. Here the provisions of the charter of Northern Pacific Railroad Company which are urged to bar this merger were directed only to  the operations of the federal corporation, not to the operation of the railroad. Thus, when the corporation’s property was sold to another, the conditions of which Livingston speaks did not follow that property into the hands of the successor corporation. It therefore follows that the statute creating the Northern Pacific Railroad Company did not bar the Interstate Commerce Commission from authorizing a merger involving the Northern Pacific Railway Company, a Wisconsin corporation. 20 We find that the Commission acted within its authority in assuming jurisdiction over the instant merger proposal and that Railway is not barred by the statute from participating in that merger. We have considered Livingston’s other contentions and find them to be without merit.",The Appeals Here
+762,8980924,2,1,"See also Tinker v. Des Moines School District, 393 U. S. 503, 510-511 (1969); Adderley v. Florida, 385 U. S. 39, 47 (1966); Carlson v. California, 310 U. S. 106, 112 (1940); Wirta v. Alameda-Contra Costa Transit District, 68 Cal. 2d 51, 434 P. 2d 982 (1967); Bynum v. Schiro, 219 F. Supp. 204 (ED La. 1963), aff’d, 375 U. S. 395 (1964); East Meadow Assn. v. Board of Education, 18 N. Y. 2d 129, 219 N. E. 2d 172 (1966); Matter of Madole v. Barnes, 20 N. Y. 2d 169, 229 N. E. 2d 20 (1967); United States v. Crowthers, 456 F. 2d 1074 (CA4 1972); and the litigation in Ellis v. Dixon, 349 U. S. 458 (1955). Cf. Flower v. United States, 407 U. S. 197 (1972). Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 29. Cf. Cox v. Louisiana, 379 U. S. 536, 556 n. 14, where the Court noted that the exemption for labor picketing in a statute otherwise barring on its face all street assemblies and parades, “points up the fact that the statute reaches beyond mere traffic regulation to restrictions on expression.” The city notes in its brief, pp. 28-30: “Although the civil rights movement has understandably endeavored to press into its service the constitutional precedents developed in labor relations litigation, there are important differences between labor picketing and picketing by civil rights groups. . . . Labor picketing is now usually token picketing. ... It seldom leads to disruption of the public peace, hardly ever to window smashing, arson. Labor picketing can be carried on without interrupting classes or even distracting the students. ... As we all know, student demonstrations at schools — and even such demonstrations by parents and 'concerned citizens’ — are utterly different. Mass picketing, sit-ins, smashed windows have been the order of the day. The very purpose of such demonstrations often is to bring the educational process to a halt.” In a variety of contexts we have said that “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U. S. 479, 488 (1960). This standard, of course, has been carefully applied when First Amendment interests are involved. E. g., Schneider v. State, 308 U. S. 147, 164 (1939); De Jonge v. Oregon, 299 U. S. 353, 364-365 (1937); Cantwell v. Connecticut, 310 U. S. 296, 307 (1940); NAACP v. Button, 371 U. S. 415, 438 (1963); Cox v. Louisiana, 379 U. S. 559, 562-564 (1965); United States v. O’Brien, 391 U. S. 367 (1968). Chicago argued below that the labor exemption in the ordinance was necessitated by federal pre-emption of the regulation of labor relations. The city now recognizes that the National Labor Relations Act specifically exempts States and subdivisions (and therefore cities and their public school boards) from the definition of “employer” within the Act. 29 U. S. C. § 152. Nevertheless, Chicago urges that the pre-emption argument still has “some merit.” It argues that “since observance by employees of private employers of picket lines of public employees can have repercussions in the federal sphere, the City was well advised to avoid this quagmire of labor law and labor relations by exempting labor picketing from the ordinance.” Reply Brief 12. This attenuated interest, at best a claim of small administrative convenience and perhaps merely a confession of legislative laziness, cannot justify the blanket permission given to labor picketing and the blanket prohibition applicable to others.","Meiklejohn, Political Freedom: The Constitutional Powers of The People 27 (1948)."
+763,8989086,1,1,"1. Luna Bar, depicted in Mississippi’s Exhibits 1 and 2, constituting, respectively, Appendix A and part of Appendix B to the Special Master’s report, and appended hereto and hereby made a part of this decree, came into existence by accretion to Carter Point and is, and was, a part of the State of Mississippi. 2. The boundary line between the State of Mississippi and the State of Arkansas in the areas between the upstream and the downstream ends of Tarpley Cut-off is as follows: In the abandoned bed of the Mississippi River between the upstream end of the Tarpley Cut-off and the downstream end of Tarpley Cut-off, as defined and identified in Mississippi’s said Exhibit 2. The courses and distances of the above-described line are set out in said Exhibit 2. 3. The cost of this suit, including the expenses of the Special Master and the printing of his report, have been paid out of the fund made up of equal contributions by the State of Mississippi and the State of Arkansas and said fund has been sufficient to defray all said expenses to the date of the issuance of the report. Any costs and expenses that may be incurred beyond the amount so contributed by the respective litigants shall be borne by the State of Arkansas.","DECREE It Is Ordered, Adjudged, and Decreed as Follows:"
+764,9011992,1,1,"
+The federal establishments named in Art. II, subdivision (D), paragraphs (2), (4), and (5) of the Decree entered March 9, 1964, in this case, such rights having been decreed in Art. II: Defined Area of Land Annual Diversions Net Priority (acre-feet) 1 Acres1 Date 1) Cocopah Indian Reservation 2,744 431 Sept. 27, 1917 2) Colorado River Indian Reservation 358,400 53,768 Mar. 3, 1865 252,016 37,808 Nov. 22, 1873 51,986 7,799 Nov. 16, 1874 3) Fort Mojave Indian Reservation 27,969 4,327 Sept. 18, 1890 68,447 10,589 Feb. 2, 1911
+(4) The Valley Division, Yuma Project in annual quantities not to exceed (i) 254,200 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of  43,562 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901. (5) The Yuma Auxiliary Project, Unit B in annual quantities not to exceed (i) 6,800 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,225 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905. (6) The North Gila Valley Unit, Yuma Mesa Division, Gila Project in annual quantities not to exceed (i) 24,500 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 4,030 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
+1. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed acre-feet of diversion from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed : Defined Area of Land Annual Diversions Priority (acre-feet) Date 7) 160 acres in Lots 21, 24, and 25, Sec. 29 and Lots 15, 16, 17 and 18, and the SW% of the SE^, Sec. 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (Powers) 2 960 1915 8) Lots 11, 12, 13, 19, 20, 22 and SVs of SW%, Sec. 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (United States) 3 1,140 1915 Footnotes to table items 7 through 25 are on p. 428.  Defined Area of Land Annual Diversions (acre-feet) Priority-Date 9) 60 acres within Lot 2, Sec. 15 and Lots 1 and 2, Sec. 22, T.10N., R.19W, G&SRBM. (Graham) 2 360 1910 10) 180 acres within the N% of the S% and the S% of the N% of See. 13 and the SW% of the NE14 of Sec. 14, T.18N., R.22W., G&SRBM. (Hulet)2 1,080 1902 11) 45 acres within the NE% of the SW1^, the SW% of the SW% and the SE% of the SW% of Sec. 11, T.18N., R.22W., G&SRBM. 80 acres within the N% of the SW% of Sec. 11, T.18N., R.22W., G&SRBM. 10 acres within the NW% of the NE% of the NE% of Sec. 15, T.18N., R.22W., G&SRBM. 40 acres within the SE% of the SE^4 of Sec. 15, T.18N., R.22W., G&SRBM. (Hursehler) 2 1,050 1902 12) 40 acres within Sec. 13, T.17N., R.22W., G&SRBM. (Mifier)2 240 1902 13) 120 acres within Sec. 27, T.18N., R.21W.,) G&SRBM. 15 acres within the NW14 of the NW%, Sec. 23, T.18N., R.22W., G&SRBM. (McKellips and Granite Reef Farms) 4 810 1902 14) 180 acres within the NW% of the NE^, the SW^ of the NE(4, the NE% of the SW%, the NW% of the SE%, the NE% of the SE%, and the SW of the SE%, and the SE% of the SE^, Sec. 31, T.18N., R.21W., G&SRBM. (Sherrill & Lafollette) 4 1,080 1902  Defined Area of Land Annual Diversions (acre-feet) Priority Date 16) 53.89 acres as follows: Beginning at a point 995.1 feet easterly of the NW comer of the NE% of Sec. 10, T.8S., R.22W., Gila and Salt River Base and Meridian; on the northerly boundary of the said NE%, which is the true point of beginning, then in a southerly direction to a point on the southerly boundary of the said NE% which is 991.2 feet E. of the SW comer of said NE% thence easterly along the S. line of the NE%, a distance of 807.3 feet to a point, thence N. 0°7' W., 768.8 feet to a point, thence E. 124.0 feet to a point, thence northerly 0°14' W., 1,067.6 feet to a point, thence E. 130 feet to a point, thence northerly 0°20' W., 405.2 feet to a point, thence northerly 63° 10' W., 506.0 feet to a point, thence northerly 90° 15' W., 562.9 feet to a point on the northerly boundary of the said NE^, thence easterly along the said northerly boundary of the said NE^, 116.6 feet to the true point of the beginning containing 53.89 acres. All as more particularly described and set forth in that survey executed by Thomas A. Yowell, Land Surveyor on June 24, 1969. (Molina) 4 318 1928 16) 60 acres within the NW1/^ of the NW% and the north half of the SW% of the NW^A of Sec. 14, T.8S., R.22W., G&SRBM. 70 acres within the S% of the SW^A of the ’ SW^, and the W% of the SW%, Sec. 14, T.8S., R.22W., G&SRBM. (Sturges) 4 780 1925 17) 120 acres within the N% NE^, NE% NW%, Section 23, T.18N., R.22W., G&SRBM. (Zozaya) 4 720 1912  Defined Area of Laud Annual Diversions Priority (acre-feet) Date 18) 40 acres in the W% of the NE% of Section 30, and 60 acres in the W% of the SE% of Section 30, and 60 acres in the E% of the NW% of Section 31, comprising a total of 160 acres all in Township 18 North, Range 21 West of the G&SRBM. (Swan) 4 960 1902 19) 7 acres in the East 300 feet of the W% of Lot 1 (Lot 1, being the SE1^ SE1^, 40 acres mofe or less), Section 28, Township 16 South, Range 22 East, San Bernardino Meridian, lying North of U. S. Bureau of Reclamation levee right of way. EXCEPT that portion conveyed to the United States of America by instrument recorded in Docket 417, page 150 EXCEPTING any portion of the East 300 feet of W% of Lot 1 within the natural bed of the Colorado River below the line of ordinary high water and also EXCEPTING any artificial accretions water-ward of said line of ordinary high water, all of which comprises approximately seven (7) acres. (Milton and Jean Phillips) 4 42 1900 2. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is. less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed: Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date 20) City of Parker2 t-i CD O Ox O O O CO CD 21) City of Yuma2 f — i QO CD ÜO OO tCO CO CO <N",arizona
+765,9011992,1,2,"
+The federal establishments named in Art. II, subdivision (D), paragraphs (1), (3), (4), and (5) of the Decree entered March 9, 1964, in this case such rights having been decreed by Art. II: Annual Diversions Net Priority Defined Area of Land _ (acre-feet) 5 Acres5 Date 1,900 Feb. 2,1907 22) Chemehuevi Indian Reservation 11,340 7,743 Jam. 9,1884 23) Yuma Indian Reservation 51,616 Nov. 22,1873 Nov. 16,1874 May 15,1876 24) Colorado River Indian Reservation 10,745 40,241 3,760 Qi 1 — i Ox W0 'Oi Q CO H lil Nl W 2119 Sept. 18,1890 25) Fort Mojave Indian Reservation 13,698
+26) The Palo Verde Irrigation District in annual quantities not to exceed (i) 219,780 acre-feet of diversions from the  mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 33,604 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1877. 27) The Imperial Irrigation District in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901. 28) The Reservation Division, Yuma Project, California (non-Indian portion) in annual quantities not to exceed (i) 38,270 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 6,294 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
+1. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of diversions from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed: ■ Annual Diversions Priority Defined Area of Land (acre-feet) Date 29) 130 acres within Lots 1, 2, and 3, SE(4 of 780 1856 NE of Section 27, T.16S., R.22E., S.B.B. & M. (Wavers)6 Footnotes to table items 29 through 80 are on p. 435.  Annual Diversions Defined Area of Land (acre-feet) Priority Date 30) 40 acres within W%, W% of E% of Section 1, 240 T.9N., R.22E., S.B.B. & M. (Stephenson) 8 1923 31) 20 acres within Lots 1 and 2, Sec. 19, T.13S., 120 R.23E., and Lots 2, 3, and 4 of Sec. 24, T.13S., R.22E., S.B.B. & M. (Mendivil)6 1893 32) 30 acres within NW% of SE%, S% of SE^, 180 Sec. 24, and NW% of NE%, Sec. 25, all in T.9S., R.21E., S.B.B. & M. (Grannis)6 1928 33) 25 acres within Lot 6, Sec. 5; and Lots 1 and 2, 150 SW% of NEÜ, and NE% of SE% of Sec. 8, and Lots 1 & 2 of Sec. 9, all in T.13S., R.22E., S.B.B. & M. (Morgan)6 1913 34) 18 acres within E% of NW% and W% of 108 NE% of Sec. 14, T.10S., R.21E., S.B.B. & M. (Milpitas) 6 1918 35) 10 acres within of NE%, SE% of NE%, 60 and NE% of SE, Sec. 30, T.9N., R.23E., S.B.B. & M. (Simons) 6 1889 36) 16 acres within E% of NW% and N% of 96 SW14, See. 12, T.9N., R.22E., S.B.B. & M. (Colo. R. Sportsmen’s League) 8 1921 37) 11.5 acres within E% of NW1^, Sec. 1, T.10S., 69 R.21E., S.B.B. & M. (Milpitas) 8 1914 38) 11 acres within S% of SW%, Sec. 12, T.9N., 66 R.22E., S.B.B. & M. (Andrade) 8 1921 39) 6 acres within Lots 2, 3, and 7 and NE% of 36 SW%, Sec. 19, T.9N., R.23E., S.B.B. & M. (Reynolds)8 1904  Defined Area of Land Annual Diversions Priority (acre-feet) Date 40) 10 acres within N% of NE%, SE% of NE^ 60 1905 and NE% of SE%, Sec. 24, T.9N., R.22E., S.B.B. & M. (Cooper)6 41) 20 acres within SW% of SW% (Lot 8), Sec. 19, 120 1925 T.9N., R.23E., S.B.B. & M. (Chagnon) 7 42) 20 acres within NE& of SW%, NV2 of SE%, 120 1915 SWA of SE&, Sec. 14, T.9S., R.21E., S.B.B. & M. (Lawrence) 7 2. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed: Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date 43) City of Needles 6 1,500 950 1885 44) Portions of: Secs. 5, 6, 7 & 8, T.7N., 1,260 273 1896 R.24E.; Sec. 1, T.7N., R.23E.; Secs. 4, 5, 9, 10, 15, 22, 23, 25, 26, 35, & 36, T.8N., R.23E.; Secs. 19, 29, 30, 32 & 33, T.9N., R.23E., S.B.B. & M. (Atchison, Topeka and Santa Fe Railway Co.) 6 45) Lots 1, 2, 3, 4, 5, & SW% NW±4 of 1.0 0.6 1921 Sec. 5, T.13S., R.22E., S.B.B. & M. (Conger)7  Annual Annual Consumptive Diversions Use Defined Area of Land (acre-feet) (acre-feet) Priority Date 46) Lots 1, 2, 3, 4 of Sec. 32, T.11S., R.22E., 1.0 S.B.B. & M. (G. Draper) 7 0.6 1923 47) Lots 1, 2, 3, 4, and SE% SW% of Sec. 1.0 20, T.11S., R.22E., S.B.B. & M. (McDonough) 7 0.6 1919 48) SW of See. 25, T.8S., R.22E., S.B.B. 1.0 & M. (Faubion) 7 0.6 1925 49) Wy2 NW% of Sec. 12, T.9N., R.22E., 1.0 S.B.B. & M. (Dudley) 7 0.6 1922 50) N% SEy, and Lots 1 and 2 of Sec. 13, 1.0 T.8S., R.22E., S.B.B. & M. (Douglas) 7 0.6 1916 51) N% SWÁ, NW% SE%, Lots 6 and 7, 1.0 Sec. 5, T.9S., R.22E., S.B.B. & M. (Beauchamp) 7 0.6 1924 52) NE SE%, SE% NE%, and Lot 1, 1.0 Sec. 26, T.8S., R.22E., S.B.B. & M. (Clark) 7 0.6 1916 53) N% SW%, NW% SEyé, SW% NE%, 1.0 Sec. 13, T.9S., R.21E., S.B.B. & M. (Lawrence) 7 0.6 1915 54) N% NE%, W/z NWVi, Sec. 13, T.9S., 1.0 R.21E., S.B.B. & M. (J. Graham) 7 0.6 1914 55) SE%, Sec. 1, T.9S., R.21E., S.B.B. & M. 1.0 (Geiger)7 0.6 1910  Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority-Date 56) Fractional of SW% (Lot 6) Sec. 1.0 6, T.9S., R.22E., S.B.B. & M. (Schneider) 7 0.6 1917 57) Lot 1, See. 15; Lots 1 & 2, Sec. 14; 1.0 Lots 1 & 2, Sec. 23; all in T.13S., R.22E., S.B.B. & M. (Martinez) 7 0.6 1895 58) NE14, Sec. 22, T.9S., R.21E, S.B.B. & 1.0 M. (Earle) 7 0.6 1925 59) NE& SE%, Sec. 22, T.9S., R.21E., 1.0 S.B.B. & M. (Diehl)7 0.6 1928 60) N% NW%, Ni/2 NE%, Sec. 23, T.9S., 1.0 R.21E., S.B.B. & M. (Reid)7 0.6 1912 61) Wy2 SW%, Sec. 23, T.9S., R.‘2lE., 1.0 S.B.B. & M. (Graham)7 0.6 1916 62) Sy2 NW%, NE% SW%, SW% NE%, 1.0 Sec. 23, T.9S., R.21E., S.B.B. & M. (Cate)7 0.6 1919 63) SE% NE%, Ny2 SE%, SE% SEPA, 1.0 Sec. 23, T.9S., R.21E., S.B.B. & M. (McGee)7 0.6 1924 64) SW% SEPA, SE% SW%, Sec. 23, NE% 1.0 NW%, NW% NE%, Sec. 26; afi in T.9S., R.21E., S.B.B. & M. (Stafiard) 7 0.6 1924 65) W2 SEPA, SE% SE%, Sec. 26, T.9S., 1.0 R.21E., S.B.B. & M. (Randolph)7 0.6 1926  Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority Date 66) E% NE%, SW% NE%, SE% NW%, 1-0 Sec. 26, T.9S., R.21E., S.B.B. & M. (Stallard)7 0.6 1928 67) S% SWJ4, See. 13, N% NW%, Sec. 1.0 24; all in T.9S., R.21E., S.B.B. & M. (Keefe)7 0.6 1926 68) SE14 NW%, NW% SE%, Lots 2, 3 & 1.0 4, Sec. 25, T.13S., R.23E., S.B.B. & M. (C. Ferguson)7 0.6 1903 69) Lots 4 & 7, Sec. 6; Lots 1 & 2, Sec. 7; 1.0 all in T.14S., R.24E., S.B.B. & M. (W. Ferguson)7 0.6 1903 70) SW(4 SE}4, Lots 2, 3, and 4, Sec. 24, 1.0 T.12S., R.21E., Lot 2, Sec. 19, T.12S., R.22E., S.B.B. & M. (Vaulin)7 0.6 1920 71) Lots 1, 2, 3 and 4, Sec. 25, T.12S., 1.0 R.21E., S.B.B. & M. (Salisbury)7 0.6 1920 72) Lots 2, 3, SE% SE%, Sec. 15, NE% 1.0 NE%, Sec. 22; all in T.13S., R.22E., 5.B.B. & M. (Hadlock)7 0.6 1924 73) SW% NE%, SE(4 NW)4, and Lots 7 1.0 & 8, Sec. 6, T.9S., R.22E., S.B.B. & M. (Streeter) 7 0.6 1903 74) Lot 4, Sec. 5; Lots 1 & 2, Sec. 7; Lots 1.0 1 & 2, Sec. 8; Lot 1, Sec. 18; all in T.12S., R.22E., S.B.B. & M. (J. Draper) 7 0.6 1903  Defined Area of Land Annual Annual Consumptive Diversions Use (acre-feet) (acre-feet) Priority-Date 75) SW% NW%, Sec. 5; SE% NE% and 1.0 Lot 9, Sec. 6; all in T.9S., R.22E., S.B.B. & M. (Fitz) ^ 0.6 1912 76) NW% NE%, Sec. 26; Lots 2 & 3, 1.0 W/2 SE%, Sec. 23; all in T.8S., R.22E., S.B.B. & M. (Williams)7 0.6 1909 77) Lots 1, 2, 3, 4, & 5, Sec. 25, T.8S., 1.0 R.22E., S.B.B. & M. (Estrada)7 0.6 1928 78) S% NW%, Lot 1, frac. NE% SW%, 1.0 Sec. 25, T.9S., R.21E., S.B.B. & M. (Whittle)7 0.6 1925 79) W/z NW%, See. 25; S% SW%, Sec. 1.0 24; all in T.9S., R.21E., S.B.B. & M. (Corington)7 0.6 1928 80) Sy2 NW%, N% SW%, See. 24, T.9S., 1.0 R.21E., S.B.B. & M. (Tolliver) 7 0.6 1928",428ii california
+766,9011992,1,3,"
+The federal establishments named in Art. II, subdivision (D), paragraphs (5) and (6) of the Decree entered on  March 9, 1964, in this case, such rights having been decreed by Art. II: Annual Diversions Net Priority-Defined Area of Land (acre-feet) Acres Date 81) 12,534 8 1,939 s Sept. 18,1890 Fort Mojave Indian Reservation 300 9 May 3, 1929 10 82) Lake Mead National Recreation 500 Area (The Overton Area of Lake Mead N.R.A. provided in Executive Order 5105) It is ordered that Judge Elbert P. Tuttle be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate. The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and borne by the parties in such proportion as the Court may hereafter direct. It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The  Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. It is further ordered that the motion of Fort Mojave Indian Tribe et al. for leave to intervene, insofar as it seeks intervention to oppose entry of the supplemental decree, is denied. In all other respects, this motion and the motion of Colorado River Indian Tribes et al. for leave to intervene are referred to the Special Master. Mb. Justice Marshall took no part in the consideration or decision of this case.",nevada
+767,9027586,1,1,Justice O’Connor took no part in the consideration or decision of this case.,"Ill , 1st Dist., dismissed for want of substantial federal question."
+768,9047786,1,4,"Judgment is awarded against the State of Colorado in favor of the State of Kansas for violations of the Arkansas River Compact resulting from postcompact well pumping in Colorado. Judgment is awarded in the amount of $34,615,146.00 for damages and prejudgment interest, including the required adjustment for inflation, arising from depletions of usable streamflow of the Arkansas River at the Colorado-Kansas Stateline in the amount of 428,005 acre-feet of water during the period 1950-1996. The damages were paid in full on April 29, 2005. Costs through January 31, 2006, including reallocation of Kansas’ share of the Special Master’s fees and expenses, are awarded to Kansas in the amount of $1,109,946.73. These costs were paid in full on  June 29, 2006. By Stipulation, $100,000.00 of the Special Master’s fees and expenses are reallocated from the United States to Kansas. Kansas’ claims regarding the Winter Water Storage Program and the operation of Trinidad Reservoir and all Colorado Counterclaims are hereby dismissed.",judgment
+769,9047786,1,7,The States shall work together informally to the maximum extent possible to resolve any disagreements regarding implementation of this Decree. Disagreements that cannot be so resolved shall be submitted to the stipulated Dispute Resolution Procedure contained in Appendix H.,Dispute Resolution
+770,9047786,1,8,"Appendices A-J may be modified only: (a) by agreement of the States or (b) pursuant to the Dispute Resolution Procedure, provided that the Colorado Measurement Rules and Colorado Use Rules may be amended by Colorado to the extent that Colorado can demonstrate that any such amendments will adequately protect Kansas’ rights under the Compact, and further provided that Appendix E shall not be modified except that it shall be subject to later determinations of Replacement credits to be applied toward Colorado's Compact obligations by the Colorado Division 2 Water Court and any appeals therefrom, and farther subject to the right of Kansas to seek relief from such Colorado Water Court determinations under the Court’s original jurisdiction. Disputes arising under this Section III shall be subject to the Dispute Resolution Procedure.",Modification of Appendices to the Decree
+771,9047786,1,10,"Whenever used in this Judgment and Decree, including Appendices, terms defined in the Compact shall have the meaning ascribed to them in the Compact; in addition, the following terms shall mean:  Acre-foot: The volume of water required to cover one acre of land to a depth of one foot, which is equal to 825,851 gallons; Annual Calculations: The calculation for each year of depletions and accretions to Usable Stateline Flow using the H-I Model, as described in Appendix B; Appendix: One of the Appendices listed in Section VI of this Decree and included in Volumes II and III of the Special Master's Fifth and Final Report in this case; Acceptable Sources of Water: As defined in Appendix G; ARCA: The Arkansas River Compact Administration created by Article VIII of the Compact; Colorado Measurement Rules: Amended Rules Governing the Measurement of Tributary Ground Water Diversions Located in the Arkansas River Basin, revised November 30, 2005, contained in Appendix 1.1, as they may be amended from time to time in accordance with Article III of this Decree; Colorado Use Rules: Amended Rules and Regulations Governing the Diversion and Use of Tributary Ground Water in the Arkansas River Basin, Colorado, Kan. Exh. 1123, contained in Appendix J.l, as they may be amended from time to time in accordance with Article III of this Decree; Compact: The Arkansas River Compact, 63 Stat. 145 (1949); Kan. Stat. Ann. §82a-520; Colo. Rev. Stat. §37-69-101; Dispute Resolution Procedure: As set out in Appendix H; Groundwater Pumping: Pumping of water from wells (other than the Wiley/Sapp Wells) in excess of 50 gallons per minute, from the alluvial and surficial aquifers along the mainstem of the Arkansas River between Pueblo, Colorado, and the Stateline within the domain of the H-I Model described in Appendix C.l; H-I Model: The Hydrologic-Institutional Model as described and documented in Appendix C.l;  John Martin Reservoir: The reservoir constructed and operated by the United States Army Corps of Engineers on the mainstem of the Arkansas River approximately 58 miles upstream from the Stateline, as referred to in the Compact; Offset Account: The storage account established in John Martin Reservoir and operated in accordance with the ARCA Resolution Concerning an Offset Account in John Martin Reservoir for Colorado Pumping, dated March 17, 1997, as amended twice on March 30, 1998, and contained in Appendix L, as the same may be further amended by the ARCA; Replacement: Delivery of water from Acceptable Sources of Water to prevent depletions caused by Groundwater Pumping; Shortfall: A net depletion to Usable Stateline Flow based on the results of the H-I Model over a ten-year period using the Compact Compliance Accounting Procedures described in Appendix A; Usable Stateline Flow: Stateline flow as simulated by the H-I Model and determined to be usable pursuant to the Durbin usable flow method with the Larson coefficients, as set out in Appendix C.2; and Wiley/Sapp Wells: Wells decreed as alternate points of diversion for precompact surface water rights in Colorado by the District Court, Water Div. 2, State of Colorado, Case Nos. 82CW115 (W-4496), 82CW125 (W-4497), and 89CW82; see App. to Third Report of the Special Master 59-61. Chief Justice Roberts, with whom Justice Souter joins, concurring. I join the opinion of the Court in full. I do so only, however, because the opinion expressly and carefully makes clear that it in no way infringes this Court’s authority to decide on its own, in original cases, whether there should be witness fees and what they should be.  Our appellate jurisdiction is, under the Constitution, subject to “such Exceptions, and . . . such Regulations as the Congress shall make.” Art. Ill, §2. Our original jurisdiction is not. The Framers presumably “act[ed] intentionally and purposely in the disparate inclusion or exclusion” of these terms. INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987) (internal quotation marks omitted). It is accordingly our responsibility to determine matters related to our original jurisdiction, including the availability and amount of witness fees. For the reasons given by the Court, I agree that $40 is a reasonable choice for the fees at issue here. But the choice is ours.",Definitions
+772,106483,2,1,"Under the final judgments entered by the court, a distributor would be free to offer films in a package initially, without stating individual prices. If, however, he delayed at all in producing individual prices upon request, he would subject himself to a possible contempt sanction. The Government's first request would prevent this first bite possibility, forcing the offer of the films on an individual basis at the outset (but, as we view it, not precluding a simultaneous package offer, United States v. Paramount Pictures, Inc., supra, 334 U. S., at 159). This is a necessary addition to the decrees, in view of the evidence appearing in the record. Television stations which asked for the individual prices of some of the better pictures couldn't get any sort of a firm kind of an answer, according to one station official. He stated that they received a certain form of equivocation, like the price for the better pictures that we wanted was so high that it wouldn't be worth our while to discuss the matter, . . . the implication being that it wouldn't happen. A Screen Gems intracompany memorandum about a Baton Rouge station's price request stated that I told him that I would be happy to talk to him about it, figuring we could start the old round robin that worked so well in Houston & San Antonio. Without the proposed amendment to the decree, distributors might surreptitiously violate it by allowing or directing their salesmen to be reluctant to produce the individual price list on request. This subtler form of sales pressure, though not accompanied by any observable delay over time, might well result in some television stations buying the block rather than trying to talk the seller into negotiating on an individual basis. Requiring the production of the individual list on first approach will obviate this danger.","Initial Offer of Individual Films, Individually Priced."
+773,106483,2,3,"The Government's third request is, like the first, designed to prevent distributors from subjecting prospective purchasers to a run-around on the purchase of individual films. No doubt temporary refusal to sell in broken lots to one customer while negotiating to sell the entire block to another is a proper business practice, viewed in vacuo, but we think that if permitted here it may tend to force some stations into buying pre-set packages to forestall a competitor's getting the entire group. In recognition of this the Government seeks a blanket prohibition against all temporary refusals to deal. We agree in the main, except that the modification proposed by the Government fails to give full recognition to that part of this Court's holding in Paramount Pictures which said, We do not suggest that films may not be sold in blocks or groups, when there is no requirement, express or implied, for the purchase of more than one film. All we hold to be illegal is a refusal to license one or more copyrights unless another copyright is accepted. 334 U. S., at 159. We therefore grant the Government's request, but modify it only to the limited degree necessary to permit a seller briefly to defer licensing or selling to a customer pending the expeditious conclusion of bona fide negotiations already being conducted with a competing station on a proposal wherein the distributor has simultaneously offered to license or sell films either individually or in a package. The modifications we have specified will bring about a greater precision in the operation of the decrees. We have concluded that they will properly protect the interest of the Government in guarding against violations and the interest of the defendants in seeking in good faith to comply. The judgments are vacated and the causes are remanded to the District Court for further proceedings in conformity with this opinion. Vacated and remanded.",Prohibition of Temporary Refusals to Deal.
+774,108329,2,1,"McGautha and his codefendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967. [2] In accordance with California procedure in capital cases, the trial was in two stages, a guilt stage and a punishment stage. [3] At the guilt trial the evidence tended to show that the defendants, armed with pistols, entered the market of Mrs. Pon Lock early in the afternoon of the murder. While Wilkinson kept a customer under guard, McGautha trained his gun on Mrs. Lock and took almost $300. Roughly three hours later, McGautha and Wilkinson held up another store, this one owned by Mrs. Benjamin Smetana and operated by her with her husband's assistance. While one defendant forcibly restrained a customer, the other struck Mrs. Smetana on the head. A shot was fired, fatally wounding Mr. Smetana. Wilkinson's former girl friend testified that shortly after the robbery McGautha told her he had shot a man and showed her an empty cartridge in the cylinder of his gun. Other evidence at the guilt stage was inconclusive on the issue as to who fired the fatal shot. The jury found both defendants guilty of two counts of armed robbery and one count of first-degree murder as charged.",McGautha's Guilt Trial
+775,108329,2,2,"At the penalty trial, which took place on the following day but before the same jury, the State waived its opening, presented evidence of McGautha's prior felony convictions and sentences, see n. 2, supra, and then rested. Wilkinson testified in his own behalf, relating his unhappy childhood in Mississippi as the son of a white father and a Negro mother, his honorable discharge from the Army on the score of his low intelligence, his regular attendance at church, and his good record for holding jobs and supporting his mother and siblings up to the time he was shot in the back in an unprovoked assault by a street gang. Thereafter, he testified, he had difficulty obtaining or holding employment. About a year later he fell in with McGautha and his companions, and when they found themselves short of funds, one of the group suggested that they knock over somebody. This was the first time, Wilkinson said, that he had ever had any thoughts of committing a robbery. He admitted participating in the two robberies but said he had not known that the stores were to be held up until McGautha drew his gun. He testified that it had been McGautha who struck Mrs. Smetana and shot Mr. Smetana. Wilkinson called several witnesses in his behalf. An undercover narcotics agent testified that he had seen the murder weapon in McGautha's possession and had seen McGautha demonstrating his quick draw. A minister with whom Wilkinson had boarded testified to Wilkinson's church attendance and good reputation. He also stated that before trial Wilkinson had expressed his horror at what had happened and requested the minister's prayers on his behalf. A former fellow employee testified that Wilkinson had a good reputation and was honest and peaceable. McGautha also testified in his own behalf at the penalty hearing. He admitted that the murder weapon was his, but testified that he and Wilkinson had traded guns, and that it was Wilkinson who had struck Mrs. Smetana and killed her husband. McGautha testified that he came from a broken home and that he had been wounded during World War II. He related his employment record, medical condition, and remorse. He admitted his criminal record, see n. 2, supra, but testified that he had been a mere accomplice in two of those robberies and that his prior conviction for murder had resulted from a slaying in self-defense. McGautha also admitted to a 1964 guilty plea to a charge of carrying a concealed weapon. He called no witnesses in his behalf. The jury was instructed in the following language: in this part of the trial the law does not forbid you from being influenced by pity for the defendants and you may be governed by mere sentiment and sympathy for the defendants in arriving at a proper penalty in this case; however, the law does forbid you from being governed by mere conjecture, prejudice, public opinion or public feeling. The defendants in this case have been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed on each defendant for that offense. Now, in arriving at this determination you should consider all of the evidence received here in court presented by the People and defendants throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of each defendant's background and history, and of the facts in aggravation or mitigation of the penalty which have been received here in court. However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other hand. ..... . . . Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, and absolute discretion. That verdict must express the individual opinion of each juror. Now, beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed. App. 221-223. [4] Deliberations began in the early afternoon of August 24, 1967. In response to jury requests the testimony of Mrs. Smetana and of three other witnesses was reread. Late in the afternoon of August 25 the jury returned verdicts fixing Wilkinson's punishment at life imprisonment and McGautha's punishment at death. The trial judge ordered a probation report on McGautha. Having received it, he overruled McGautha's motions for a new trial or for a modification of the penalty verdict, and pronounced the death sentence. [5] McGautha's conviction was unanimously affirmed by the California Supreme Court. 70 Cal. 2d 770, 452 P. 2d 650 (1969). His contention that standardless jury sentencing is unconstitutional was rejected on the authority of an earlier case, In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968), in which that court had divided narrowly on the issue.",McGautha's Penalty Trial
+776,108329,2,3,"Petitioner Crampton was indicted for the murder of his wife, Wilma Jean, purposely and with premeditated malice. He pleaded not guilty and not guilty by reason of insanity. [6] In accordance with the Ohio practice which he challenges, his guilt and punishment were determined in a single unitary proceeding. At trial the State's case was as follows. The Cramptons had been married about four months at the time of the murder. Two months before the slaying Crampton was allowed to leave the state mental hospital, where he was undergoing observation and treatment for alcoholism and drug addiction, to attend the funeral of his wife's father. On this occasion he stole a knife from the house of his late father-in-law and ran away. He called the house several times and talked to his wife, greatly upsetting her. When she pleaded with him to return to the hospital and stated that she would have to call the police, he threatened to kill her if she did. Wilma and her brother nevertheless did notify the authorities, who picked Crampton up later the same evening. There was testimony of other threats Crampton had made on his wife's life, and it was revealed that about 10 days before the murder Mrs. Crampton's fear of her husband had caused her to request and receive police protection. The State's main witness to the facts surrounding the murder was one William Collins, a convicted felon who had first met Crampton when they, along with Crampton's brother Jack, were in the State Prison in Michigan. On January 14, 1967, three days before the murder, Collins and Crampton met at Jack Crampton's house in Pontiac, Michigan. During those three days Collins and Crampton roamed the upper Midwest, committing a series of petty thefts and obtaining amphetamines, to which both were addicted, by theft and forged prescriptions. About nine o'clock on the evening of January 16, Crampton called his wife from St. Joseph, Michigan; after the call he told Collins that he had to get back to Toledo, where his wife was, as fast as possible. They arrived in the early morning hours of January 17. After Crampton had stopped by his wife's home and sent Collins to the door with a purported message for her, the two went to the home of Crampton's mother-in-law, which Crampton knew to be empty, to obtain some guns. They broke in and stole a rifle, ammunition, and some handguns, including the .45 automatic which was later identified as the murder weapon. Crampton kept this gun with him. He indicated to Collins that he believed his wife was having an affair. He fired the .45 in the air, with a remark to the effect that a slug of that type would do quite a bit of damage, and said that if he found his wife with the man he suspected he would kill them both. That evening Crampton called his wife's home and learned that she was present. He quickly drove out to the house, and told Collins, Leave me off right here in front of the house and you take the car and go back to the parking lot and if I'm not there by six o'clock in the morning you're on your own. About 11:20 that evening Crampton was arrested for driving a stolen car. The murder weapon was found between the seats of the car. Mrs. Crampton's body was found the next morning. She had been shot in the face at close range while she was using the toilet. A .45-caliber shell casing was near the body. A jacket which Crampton had stolen a few days earlier was found in the living room. The coroner, who examined the body at 11:30 p. m. on January 18, testified that in his opinion death had occurred 24 hours earlier, plus or minus four hours. The defense called Crampton's mother as a witness. She testified about Crampton's background, including a serious concussion received at age nine, his good grades in junior high school, his stepfather's jealousy of him, his leaving home at age 14 to live with various relatives, his enlistment in the Navy at age 17, his marriage to a girl named Sandra, the birth of a son, a divorce, then a remarriage to Sandra and another divorce shortly after, and finally his marriage to Wilma. Mrs. Crampton also testified to Crampton's drug addiction, to his brushes with the law as a youth and as an adult, and to his undesirable discharge from the Navy. Crampton's attorney also introduced into evidence a series of hospital reports which contained further information on Crampton's background, including his criminal record, which was substantial, his court-martial conviction and undesirable discharge from the Navy, and the absence of any significant employment record. They also contained his claim that the shooting was accidental; that he had been gathering up guns around the house and had just removed the clip from an automatic when his wife asked to see it; that as he handed it to her it went off accidentally and killed her. All the reports concluded that Crampton was sane in both the legal and the medical senses. He was diagnosed as having a sociopathic personality disorder, along with alcohol and drug addiction. Crampton himself did not testify. The jury was instructed that: If you find the defendant guilty of murder in the first degree, the punishment is death, unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life. App. 70. The jury was given no other instructions specifically addressed to the decision whether to recommend mercy, but was told in connection with its verdict generally: You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict. Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy, or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried. App. 71-72. The jury deliberated for over four hours and returned a verdict of guilty, with no recommendation for mercy. Sentence was imposed about two weeks later. As Ohio law requires, Ohio Rev. Code Ann. § 2947.05 (1954), Crampton was informed of the verdict and asked whether he had anything to say as to why judgment should not be pronounced against him. He replied: Please the Court, I don't believe I received a fair and impartial trial because the jury was prejudiced by my past record and the fact I had been a drug addict, and I just believe I didn't receive a fair and impartial trial. That's all I have to say. This statement was found insufficient to justify not pronouncing sentence upon him, and the court imposed the death sentence. [7] Crampton's appeals through the Ohio courts were unavailing. 18 Ohio St. 2d 182, 248 N. E. 2d 614 (1969).",Crampton's Trial
+777,118365,3,1,"(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or (B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; or (2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; shall be fined under this title, imprisoned not more than 10 years, or both. (b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. (c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business. Liability for the acts prohibited by subsection (a) is predicated upon a showing that the defrauded organization receive[d], in any one period, benefits in excess of $10,000 under a Federal program. § 666(b). Those benefits can be in the form of a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. Ibid. All agree Medicare is a federal assistance program, see 42 CFR § 400.200 (1999), and that WVHA, as the organization defrauded by petitioner's actions, received in excess of $10,000 in payments under the program. The sole point in contention is whether those payments constituted benefits within the meaning of subsection (b). Petitioner argues that the Medicare program provides benefits to the elderly and disabled but not to the health care organizations. Provider organizations, in petitioner's view, do no more than render services in exchange for compensation. Under petitioner's submission the Medicare program envisions a single beneficiary, the qualifying patient. The Government, in opposition, urges that a determination whether an organization receives benefits within the meaning of § 666(b) turns on whether the Federal Government was the source of the payment. Funds received under a federal assistance program, the Government asserts, can be traced from federal coffers, often through an intermediary or carrier, to the health care provider. Under its view, the federal-program source of the funds satisfies the benefits definition. Brief for United States 11. We reject petitioner's reading of the statute but without endorsing the Government's broader position. We conclude Medicare payments are benefits, as the term is used in its ordinary sense and as it is intended in the statute. The noun benefit means something that guards, aids, or promotes well-being: advantage, good; useful aid; payment, gift [such as] financial help in time of sickness, old age, or unemployment; or a cash payment or service provided for under an annuity, pension plan, or insurance policy. Webster's Third New International Dictionary 204 (1971). These definitions support petitioner's assertion that qualifying patients receive benefits under the Medicare program. It is commonplace for individuals to refer to their retirement or health plans as benefits. So it ought not to be disputed that the elderly and disabled rank as the primary beneficiaries of the Medicare program. See 42 U. S. C. §§ 1395c, 1395j; 42 CFR § 400.202 (1999) (defining beneficiary as the person who is entitled to Medicare benefits); Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 91 (1995) (Under the Medicare reimbursement scheme . . . participating hospitals furnish services to program beneficiaries and are reimbursed by the Secretary through fiscal intermediaries); Good Samaritan Hospital, 508 U. S., at 404 (same). That one beneficiary of an assistance program can be identified does not foreclose the existence of others, however. In this respect petitioner's construction would give incomplete meaning to the term benefits. Medicare operates with a purpose and design above and beyond point-of-sale patient care, and it follows that the benefits of the program extend in a broader manner as well. The argument limiting the term benefits to the program's targeted or primary beneficiaries would exclude, for example, a Medicare intermediary (such as Blue Cross and Blue Shield), a result both parties disavow. For present purposes it cannot be disputed the providers themselves derive significant advantage by satisfying the participation standards imposed by the Government. These advantages constitute benefits within the meaning of the federal bribery statute, a statute we have described as expansive, both as to the [conduct] forbidden and the entities covered. Salinas v. United States, 522 U. S. 52, 56 (1997). Subsection (b) identifies several sources as providing benefits under a federal program—a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance. 18 U. S. C. § 666(b). This language indicates that Congress viewed many federal assistance programs as providing benefits to participating organizations. Coupled with the broad substantive prohibitions of subsection (a), the language of subsection (b) reveals Congress' expansive, unambiguous intent to ensure the integrity of organizations participating in federal assistance programs. Subsection (c) of the statute bears on the analysis. The provision removes from the statute's coverage any bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business. § 666(c). Petitioner argues that the subsection operates to exclude the payments in question because they are either compensation or expenses paid or reimbursed, or some combination of the two, and that the payments are made in the usual course of business. We disagree. The subsection provides that the specified sorts of payments are not ones to which the section applies. One inference from this formulation is that the described payments would have been benefits but for the subsection (c) exemption. We need not go so far. Even assuming the examples of subsection (c) bear upon the definition of benefits, statutory examples of nonapplicability do not necessarily give rise to the inference that absent the enumeration the statute would otherwise apply. To define all subsection (c) payments as exempted benefits would go well beyond the ordinary meaning of the word. On the other hand, the statute is not written to say: The term `benefits' does not include bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business. We must construe the term benefits, then, in a manner consistent with Congress' intent not to reach the enumerated class of transactions. See S. Rep. No. 98-225, p. 370 (1984) ([N]ot every Federal contract or disbursement of funds would be covered [under § 666]. For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime). We do not accept the view that the Medicare payments here in question are for the limited purposes of compensating providers or reimbursing them for ordinary course expenditures. The payments are made for significant and substantial reasons in addition to compensation or reimbursement, so that neither these terms nor the usual course of business conditions set forth in subsection (c) are met here. The payments in question have attributes and purposes well beyond those described in subsection (c). These attributes and purposes are consistent with the definition of benefit. While the payments might have similarities to payments an insurer would remit to a hospital quite without regard to the Medicare program, the Government does not make the payment unless the hospital complies with its intricate regulatory scheme. The payments are made not simply to reimburse for treatment of qualifying patients but to assist the hospital in making available and maintaining a certain level and quality of medical care, all in the interest of both the hospital and the greater community. Here, as we have explained, the provider itself is the object of substantial Government regulation. Medicare is designed to the end that the Government receives not only reciprocal value from isolated transactions but also long-term advantages from the existence of a sound and effective health care system for the elderly and disabled. The Government enacted specific statutes and regulations to secure its own interests in promoting the well being and advantage of the health care provider, in addition to the patient who receives care. The health care provider is receiving a benefit in the conventional sense of the term, unlike the case of a contractor whom the Government does not regulate or assist for long-term objectives or for significant purposes beyond performance of an immediate transaction. Adequate payment and assistance to the health care provider is itself one of the objectives of the program. These purposes and effects suffice to make the payment a benefit within the meaning of the statute. The structure and operation of the Medicare program reveal a comprehensive federal assistance enterprise aimed at ensuring the availability of quality health care for the broader community. Participating health care organizations, as our above discussion shows, must satisfy a series of qualification and accreditation requirements, standards aimed in part at ensuring the provision of a certain quality of care. See 42 CFR pt. 482 (1999). By reimbursing participating providers for a wide range of costs and expenses, including medical treatment costs, overhead costs, and education costs, Medicare's reimbursement system furthers this objective. This scheme is structured to ensure that providers possess the capacity to render, on an ongoing basis, medical care to the program's qualifying patients. The structure, moreover, proves untenable petitioner's assertion that Congress has no interest in the financial stability of providers once services are rendered to patients. Payments are made in a manner calculated to maintain provider stability. § 413.5(b); Good Samaritan Hospital, 508 U. S., at 406. Incentives are given for long-term improvements, such as capital costs and education. §§ 413.85, 413.134(e), 413.153(b)(2)(iii). Subsidies, defined as special treatment, are awarded to certain providers. Id., pt. 412G. In short, provider organizations play a vital role and maintain a high level of responsibility in carrying out the program's purposes. Medicare funds, in turn, provide benefits extending beyond isolated, point-of-sale treatment transactions. The funds health care organizations receive for participating in the Medicare program constitute benefits within the meaning of 18 U. S. C. § 666(b). Our discussion should not be taken to suggest that federal funds disbursed under an assistance program will result in coverage of all recipient fraud under § 666(b). Any receipt of federal funds can, at some level of generality, be characterized as a benefit. The statute does not employ this broad, almost limitless use of the term. Doing so would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance. To determine whether an organization participating in a federal assistance program receives benefits, an examination must be undertaken of the program's structure, operation, and purpose. The inquiry should examine the conditions under which the organization receives the federal payments. The answer could depend, as it does here, on whether the recipient's own operations are one of the reasons for maintaining the program. Health care organizations participating in the Medicare program satisfy this standard. The Government has a legitimate and significant interest in prohibiting financial fraud or acts of bribery being perpetrated upon Medicare providers. Fraudulent acts threaten the program's integrity. They raise the risk participating organizations will lack the resources requisite to provide the level and quality of care envisioned by the program. Cf. Salinas, 522 U. S., at 61 (stating that acceptance of bribes by an official of a jail housing federal prisoners pursuant to an agreement with the Government was a threat to the integrity and proper operation of the federal program). Other cases may present questions requiring further examination and elaboration of the term benefits. Here it suffices to hold that health care providers such as the one defrauded by petitioner receive benefits within the meaning of the statute. The judgment of the Court of Appeals is affirmed. It is so ordered.","is valued at $5,000 or more, and"
+778,104229,1,2,"The fountainhead of the commission's authority was General MacArthur's directive by which General Styer was ordered to and pursuant to which he did proceed with constituting the commission. [8] The directive was accompanied by elaborate and detailed rules and regulations prescribing the procedure and rules of evidence to be followed, of which for present purposes ง 16, set forth below, [9] is crucial. Section 16, as will be noted, permits reception of documents, reports, affidavits, depositions, diaries, letters, copies of documents or other secondary evidence of their contents, hearsay, opinion evidence and conclusions, in fact of anything which in the commission's opinion would be of assistance in proving or disproving the charge, without any of the usual modes of authentication. A more complete abrogation of customary safeguards relating to the proof, whether in the usual rules of evidence or any reasonable substitute and whether for use in the trial of crime in the civil courts or military tribunals, hardly could have been made. So far as the admissibility and probative value of evidence was concerned, the directive made the commission a law unto itself. It acted accordingly. As against insistent and persistent objection to the reception of all kinds of evidence, oral, documentary and photographic, for nearly every kind of defect under any of the usual prevailing standards for admissibility and probative value, the commission not only consistently ruled against the defense, but repeatedly stated it was bound by the directive to receive the kinds of evidence it specified, [10] reprimanded counsel for continuing to make objection, declined to hear further objections, and in more than one instance during the course of the proceedings reversed its rulings favorable to the defense, where initially it had declined to receive what the prosecution offered. Every conceivable kind of statement, rumor, report, at first, second, third or further hand, written, printed or oral, and one propaganda film were allowed to come in, most of this relating to atrocities committed by troops under petitioner's command throughout the several thousand islands of the Philippine Archipelago during the period of active hostilities covered by the American forces' return to and recapture of the Philippines. [11] The findings reflect the character of the proof and the charge. The statement quoted above [12] gives only a numerical idea of the instances in which ordinary safeguards in reception of written evidence were ignored. In addition to these 423 exhibits, the findings state the commission has heard 286 persons during the course of this trial, most of whom have given eye-witness accounts of what they endured or what they saw. But there is not a suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents, with the exception of the wholly inferential suggestion noted below. Nor is there any express finding that he knew of any one of the incidents in particular or of all taken together. The only inferential findings that he had knowledge, or that the commission so found, are in the statement that the crimes alleged to have been permitted by the Accused in violation of the laws of war may be grouped into three categories set out below, [13] in the further statement that the Prosecution presented evidence to show that the crimes were so extensive and widespread, both as to time and area, [14] that they must either have been wilfully permitted by the Accused, or secretly ordered by him; and in the conclusion of guilt and the sentence. [15] (Emphasis added.) Indeed the commission's ultimate findings [16] draw no express conclusion of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes; (2) that petitioner failed to provide effective control . . . as was required by the circumstances. This vagueness, if not vacuity, in the findings runs throughout the proceedings, from the charge itself through the proof and the findings, to the conclusion. It affects the very gist of the offense, whether that was wilful, informed and intentional omission to restrain and control troops known by petitioner to be committing crimes or was only a negligent failure on his part to discover this and take whatever measures he then could to stop the conduct. Although it is impossible to determine from what is before us whether petitioner in fact has been convicted of one or the other or of both these things, [17] the case has been presented on the former basis and, unless as is noted below there is fatal duplicity, it must be taken that the crime charged and sought to be proved was only the failure, with knowledge, to perform the commander's function of control, although the Court's opinion nowhere expressly declares that knowledge was essential to guilt or necessary to be set forth in the charge. It is in respect to this feature especially, quite apart from the reception of unverified rumor, report, etc., that perhaps the greatest prejudice arose from the admission of untrustworthy, unverified, unauthenticated evidence which could not be probed by cross-examination or other means of testing credibility, probative value or authenticity. Counsel for the defense have informed us in the brief and at the argument that the sole proof of knowledge introduced at the trial was in the form of ex parte affidavits and depositions. Apart from what has been excerpted from the record in the applications and the briefs, and such portions of the record as I have been able to examine, it has been impossible for me fully to verify counsel's statement in this respect. But the Government has not disputed it; and it has maintained that we have no right to examine the record upon any question of evidence. Accordingly, without concession to that view, the statement of counsel is taken for the fact. And in that state of things petitioner has been convicted of a crime in which knowledge is an essential element, with no proof of knowledge other than what would be inadmissible in any other capital case or proceeding under our system, civil or military, and which furthermore Congress has expressly commanded shall not be received in such cases tried by military commissions and other military tribunals. [18] Moreover counsel assert in the brief, and this also is not denied, that the sole proof made of certain of the specifications in the bills of particulars was by ex parte affidavits. It was in relation to this also vital phase of the proof that there occurred one of the commission's reversals of its earlier rulings in favor of the defense, [19] a fact in itself conclusive demonstration of the necessity to the prosecution's case of the prohibited type of evidence and of its prejudicial effects upon the defense. These two basic elements in the proof, namely, proof of knowledge of the crimes and proof of the specifications in the bills, that is, of the atrocities themselves, constitute the most important instances perhaps, if not the most flagrant, [20] of departure not only from the express command of Congress against receiving such proof but from the whole British-American tradition of the common law and the Constitution. Many others occurred, which there is neither time nor space to mention. [21] Petitioner asserts, and there can be no reason to doubt, that by the use of all this forbidden evidence he was deprived of the right of cross-examination and other means to establish the credibility of the deponents or affiants, not to speak of the authors of reports, letters, documents and newspaper articles; of opportunity to determine whether the multitudinous crimes specified in the bills were committed in fact by troops under his command or by naval or air force troops not under his command at the time alleged; to ascertain whether the crimes attested were isolated acts of individual soldiers or were military acts committed by troop units acting under supervision of officers; and, finally, whether in short, there was such a `pattern' of conduct as the prosecution alleged and its whole theory of the crime and the evidence required to be made out. He points out in this connection that the commission based its decision on a finding as to the extent and number of the atrocities and that this of itself establishes the prejudicial effect of the affidavits, etc., and of the denial resulting from their reception of any means of probing the evidence they contained, including all opportunity for cross-examination. Yet it is said there is no sufficient showing of prejudice. The effect could not have been other than highly prejudicial. The matter is not one merely of rules of evidence. It goes, as will appear more fully later, to the basic right of defense, including some fair opportunity to test probative value. Insufficient as this recital is to give a fair impression of what was done, it is enough to show that this was no trial in the traditions of the common law and the Constitution. If the tribunal itself was not strange to them otherwise, it was in its forms and modes of procedure, in the character and substance of the evidence it received, in the denial of all means to the accused and his counsel for testing the evidence, in the brevity and ambiguity of its findings made upon such a mass of material and, as will appear, in the denial of any reasonable opportunity for preparation of the defense. Because this last deprivation not only is important in itself, but is closely related to the departures from all limitations upon the character of and modes of making the proof, it will be considered before turning to the important legal questions relating to whether all these violations of our traditions can be brushed aside as not forbidden by the valid Acts of Congress, treaties and the Constitution, in that order. If all these traditions can be so put away, then indeed will we have entered upon a new but foreboding era of law.",Invalidity of the Commission's Constitution.
+779,104229,1,3,"Petitioner surrendered September 3, 1945, and was interned as a prisoner of war in conformity with Article 9 of the Geneva Convention of July 27, 1929. [22] He was served with the charge on September 25 and put in confinement as an accused war criminal. On October 8 he was arraigned and pleaded not guilty. On October 29 the trial began and it continued until December 7, when sentence was pronounced, exactly four years almost to the hour from the attack on Pearl Harbor. On the day of arraignment, October 8, three weeks before the trial began, petitioner was served with a bill of particulars specifying 64 items setting forth a vast number of atrocities and crimes allegedly committed by troops under his command. [23] The six officers appointed as defense counsel thus had three weeks, it is true at the prosecution's suggestion a week longer than they sought at first, to investigate and prepare to meet all these items and the large number of incidents they embodied, many of which had occurred in distant islands of the archipelago. There is some question whether they then anticipated the full scope and character of the charge or the evidence they would have to meet. But, as will appear, they worked night and day at the task. Even so it would have been impossible to do thoroughly, had nothing more occurred. But there was more. On the first day of the trial, October 29, the prosecution filed a supplemental bill of particulars, containing 59 more specifications of the same general character, involving perhaps as many incidents occurring over an equally wide area. [24] A copy had been given the defense three days earlier. One item, No. 89, charged that American soldiers, prisoners of war, had been tried and executed without notice having been given to the protecting power of the United States in accordance with the requirements of the Geneva Convention, which it is now argued, strangely, the United States was not required to observe as to petitioner's trial. [25] But what is more important is that defense counsel, as they felt was their duty, at once moved for a continuance. [26] The application was denied. However the commission indicated that if, at the end of the prosecution's presentation concerning the original bill, counsel should believe they require additional time . . ., the Commission will consider such a motion at that time, before taking up the items of the supplemental bill. Counsel again indicated, without other result, that time was desired at once as much, if not more to prepare for cross-examination as the Prosecution's case goes in as to prepare affirmative defense. On the next day, October 30, the commission interrupted the prosecutor to say it would not then listen to testimony or discussion upon the supplemental bill. After colloquy it adhered to its prior ruling and, in response to inquiry from the prosecution, the defense indicated it would require two weeks before it could proceed on the supplemental bill. On November 1 the commission ruled it would not receive affidavits without corroboration by witnesses on any specification, a ruling reversed four days later. On November 2, after the commission had received an affirmative answer to its inquiry whether the defense was prepared to proceed with an item in the supplemental bill which the prosecution proposed to prove, it announced: Hereafter, then, unless there is no [sic] objection by the Defense, the Commission will assume that you are prepared to proceed with any items in the Supplemental Bill. On November 8, the question arose again upon the prosecution's inquiry as to when the defense would be ready to proceed on the supplemental bill, the prosecutor adding: Frankly, sir, it took the War Crimes Commission some three months to investigate these matters and I cannot conceive of the Defense undertaking a similar investigation with any less period of time. Stating it realized the tremendous task which we placed upon the Defense and its determination to give them the time they require, the commission again adhered to its ruling of October 29. Four days later the commission announced it would grant a continuance only for the most urgent and unavoidable reasons. [27] On November 20, when the prosecution rested, senior defense counsel moved for a reasonable continuance, recalling the commission's indication that it would then consider such a motion and stating that since October 29 the defense had been working day and night, with no time whatsoever to prepare any affirmative defense, since counsel had been fully occupied trying to keep up with that new Bill of Particulars. The commission thereupon retired for deliberation and, on resuming its sessions shortly, denied the motion. Counsel then asked for a short recess of a day. The commission suggested a recess until 1:30 in the afternoon. Counsel responded this would not suffice. The commission stated it felt that the Defense should be prepared at least on its opening statement, to which senior counsel answered: We haven't had time to do that, sir. The commission then recessed until 8:30 the following morning. Further comment is hardly required. Obviously the burden placed upon the defense, in the short time allowed for preparation on the original bill, was not only tremendous. In view of all the facts, it was an impossible one, even though the time allowed was a week longer than asked. But the grosser vice was later when the burden was more than doubled by service of the supplemental bill on the eve of trial, a procedure which, taken in connection with the consistent denials of continuance and the commission's later reversal of its rulings favorable to the defense, was wholly arbitrary, cutting off the last vestige of adequate chance to prepare defense and imposing a burden the most able counsel could not bear. This sort of thing has no place in our system of justice, civil or military. Without more, this wide departure from the most elementary principles of fairness vitiated the proceeding. When added to the other denials of fundamental right sketched above, it deprived the proceeding of any semblance of trial as we know that institution.",Denial of Opportunity to Prepare Defense.
+780,104229,1,4,"The Court's opinion puts the proceeding and the petitioner, in so far as any rights relating to his trial and conviction are concerned, wholly outside the Articles of War. In view of what has taken place, I think the decision's necessary effect is also to place them entirely beyond limitation and protection, respectively, by the Constitution. I disagree as to both conclusions or effects. The Court rules that Congress has not made Articles 25 and 38 applicable to this proceeding. I think it has made them applicable to this and all other military commissions or tribunals. If so, the commission not only lost all power to punish petitioner by what occurred in the proceedings. It never acquired jurisdiction to try him. For the directive by which it was constituted, in the provisions of ง 16, [28] was squarely in conflict with Articles 25 and 38 of the Articles of War [29] and therefore was void. Article 25 allows reading of depositions in evidence, under prescribed conditions, in the plainest terms before any military court or commission in any case not capital,  providing, however, that testimony by deposition may be adduced for the defense in capital cases.  (Emphasis added.) This language clearly and broadly covers every kind of military tribunal, whether court or commission. It covers all capital cases. It makes no exception or distinction for any accused. Article 38 authorizes the President by regulations to prescribe procedure, including modes of proof, even more all-inclusively if possible, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals. Language could not be more broadly inclusive. No exceptions are mentioned or suggested, whether of tribunals or of accused persons. Every kind of military body for performing the function of trial is covered. That is clear from the face of the Article. Article 38 moreover limits the President's power. He is so far as practicable to prescribe the rules of evidence generally recognized in the trial of criminal cases in the district courts of the United States, a clear mandate that Congress intended all military trials to conform as closely as possible to our customary procedural and evidentiary protections, constitutional and statutory, for accused persons. But there are also two unqualified limitations, one that nothing contrary to or inconsistent with these articles [specifically here Article 25] shall be so prescribed; the other that all rules made in pursuance of this article shall be laid before the Congress annually. Notwithstanding these broad terms the Court, resting chiefly on Article 2, concludes the petitioner was not among the persons there declared to be subject to the Articles of War and therefore the commission which tries him is not subject to them. That Article does not cover prisoners of war or war criminals. Neither does it cover civilians in occupied territories, theatres of military operations or other places under military jurisdiction within or without the United States or territory subject to its sovereignty, whether they be neutrals or enemy aliens, even citizens of the United States, unless they are connected in the manner Article 2 prescribes with our armed forces, exclusive of the Navy. The logic which excludes petitioner on the basis that prisoners of war are not mentioned in Article 2 would exclude all these. I strongly doubt the Court would go so far, if presented with a trial like this in such instances. Nor does it follow necessarily that, because some persons may not be mentioned in Article 2, they can be tried without regard to any of the limitations placed by any of the other Articles upon military tribunals. Article 2 in defining persons subject to the articles of war was, I think, specifying those to whom the Articles in general were applicable. And there is no dispute that most of the Articles are not applicable to the petitioner. It does not follow, however, and Article 2 does not provide, that there may not be in the Articles specific provisions covering persons other than those specified in Article 2. Had it so provided, Article 2 would have been contradictory not only of Articles 25 and 38 but also of Article 15 among others. In 1916, when the last general revision of the Articles of War took place, [30] for the first time certain of the Articles were specifically made applicable to military commissions. Until then they had applied only to courts-martial. There were two purposes, the first to give statutory recognition to the military commission without loss of prior jurisdiction and the second to give those tried before military commissions some of the more important protections afforded persons tried by courts-martial. In order to effectuate the first purpose, the Army proposed Article 15. [31] To effectuate the second purpose, Articles 25 and 38 and several others were proposed. [32] But as the Court now construes the Articles of War, they have no application to military commissions before which alleged offenders against the laws of war are tried. What the Court holds in effect is that there are two types of military commission, one to try offenses which might be cognizable by a court-martial, the other to try war crimes, and that Congress intended the Articles of War referring in terms to military commissions without exception to be applicable only to the first type. This misconceives both the history of military commissions and the legislative history of the Articles of War. There is only one kind of military commission. It is true, as the history noted shows, that what is now called the military commission arose from two separate military courts instituted during the Mexican War. The first military court, called by General Scott a military commission, was given jurisdiction in Mexico over criminal offenses of the class cognizable by civil courts in time of peace. The other military court, called a council of war, was given jurisdiction over offenses against the laws of war. Winthrop, Military Law and Precedents (2d ed., reprinted 1920) []1298-1299. During the Civil War the two jurisdictions of the earlier commission and council respectively . . . [were] united in the . . . war-court, for which the general designation of `military commission' was retained as the preferable one. Winthrop, supra, at []1299. Since that time there has been only one type of military tribunal called the military commission, though it may exercise different kinds of jurisdiction, [33] according to the circumstances under which and purposes for which it is convened. The testimony of General Crowder is perhaps the most authoritative evidence of what was intended by the legislation, for he was its most active official sponsor, spending years in securing its adoption and revision. Articles 15, 25 and 38 particularly are traceable to his efforts. His concern to secure statutory recognition for military commissions was equalled by his concern that the statutory provisions giving this should not restrict their preexisting jurisdiction. He did not wish by securing additional jurisdiction, overlapping partially that of the court-martial, to surrender other. Hence Article 15. That Article had one purpose and one only. It was to make sure that the acquisition of partially concurrent jurisdiction with courts-martial should not cause loss of any other. And it was jurisdiction, not procedure, which was covered by other Articles, with which he and Congress were concerned in that Article. It discloses no purpose to deal in any way with procedure or to qualify Articles 25 and 38. And it is clear that General Crowder at all times regarded all military commissions as being governed by the identical procedure. In fact, so far as Articles 25 and 38 are concerned, this seems obvious for all types of military tribunals. The same would appear to be true of other Articles also, e.g., 24 (prohibiting compulsory self-incrimination), 26, 27, 32 (contempts), all except the last dealing with procedural matters. Article 12 is especially significant. It empowers general courts-martial to try two classes of offenders: (1) any person subject to military law,  under the definition of Article 2, for any offense made punishable by these articles; (2) and any other person who by the law of war is subject to trial by military tribunals,  not covered by the terms of Article 2. (Emphasis added.) Article 12 thus, in conformity with Article 15, gives the general court-martial concurrent jurisdiction of war crimes and war criminals with military commissions. Neither it nor any other Article states or indicates there are to be two kinds of general courts-martial for trying war crimes; yet this is the necessary result of the Court's decision, unless in the alternative that would be to imply that in exercising such jurisdiction there is only one kind of general court-martial, but there are two or more kinds of military commission, with wholly different procedures and with the result that the commander in the field will not be free to determine whether general court-martial or military commission shall be used as the circumstances may dictate, but must govern his choice by the kind of procedure he wishes to have employed. The only reasonable and, I think, possible conclusion to draw from the Articles is that the Articles which are in terms applicable to military commissions are so uniformly and those applicable to both such commissions and to courts-martial when exercising jurisdiction over offenders against the laws of war likewise are uniformly applicable, and not diversely according to the person or offense being tried. Not only the face of the Articles, but specific statements in General Crowder's testimony support this view. Thus in the portion quoted above [34] from his 1916 statement, after stating expressly the purpose of Article 15 to preserve unimpaired the military commission's jurisdiction, and to make it concurrent with that of courts-martial in so far as the two would overlap, so that the military commander in the field in time of war will be at liberty to employ either form of court that happens to be convenient, he went on to say: Both classes of courts have the same procedure, a statement so unequivocal as to leave no room for question. And his quotation from Winthrop supports his statement, namely: Its [i.e., the military commission's] composition, constitution and procedure follow the analogy of courts-martial. At no point in the testimony is there suggestion that there are two types of military commission, one bound by the procedural provisions of the Articles, the other wholly free from their restraints or, as the Court strangely puts the matter, that there is only one kind of commission, but that it is bound or not bound by the Articles applicable in terms, depending upon who is being tried and for what offense; for that very difference makes the difference between one and two. The history and the discussion show conclusively that General Crowder wished to secure and Congress intended to give statutory recognition to all forms of military tribunals; to enable commanding officers in the field to use either court-martial or military commission as convenience might dictate, thus broadening to this extent the latter's jurisdiction and utility; but at the same time to preserve its full preexisting jurisdiction; and also to lay down identical provisions for governing or providing for the government of the procedure and rules of evidence of every type of military tribunal, wherever and however constituted. [35] Finally, unless Congress was legislating with regard to all military commissions, Article 38, which gives the President the power to prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals, takes on a rather senseless meaning; for the President would have such power only with respect to those military commissions exercising concurrent jurisdiction with courts-martial. All this seems so obvious, upon a mere reading of the Articles themselves and the legislative history, as not to require demonstration. And all this Congress knew, as that history shows. In the face of that showing I cannot accept the Court's highly strained construction, first, because I think it is in plain contradiction of the facts disclosed by the history of Articles 15, 25 and 38 as well as their language; and also because that construction defeats at least two of the ends General Crowder had in mind, namely, to secure statutory recognition for every form of military tribunal and to provide for them a basic uniform mode of procedure or method of providing for their procedure. Accordingly, I think Articles 25 and 38 are applicable to this proceeding; that the provisions of the governing directive in ง 16 are in direct conflict with those Articles; and for that reason the commission was invalidly constituted, was without jurisdiction, and its sentence is therefore void.",Applicability of the Articles of War.
+781,104229,1,5,"If the provisions of Articles 25 and 38 were not applicable to the proceeding by their own force as Acts of Congress, I think they would still be made applicable by virtue of the terms of the Geneva Convention of 1929, in particular Article 63. And in other respects, in my opinion, the petitioner's trial was not in accord with that treaty, namely, with Article 60. The Court does not hold that the Geneva Convention is not binding upon the United States and no such contention has been made in this case. [36] It relies on other arguments to show that Article 60, which provides that the protecting power shall be notified in advance of a judicial proceeding directed against a prisoner of war, and Article 63, which provides that a prisoner of war may be tried only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power, are not properly invoked by the petitioner. Before considering the Court's view that these Articles are not applicable to this proceeding by their terms, it may be noted that on his surrender petitioner was interned in conformity with Article 9 of this Convention. The chief argument is that Articles 60 and 63 have reference only to offenses committed by a prisoner of war while a prisoner of war and not to violations of the laws of war committed while a combatant. This conclusion is derived from the setting in which these Articles are placed. I do not agree that the context gives any support to this argument. The argument is in essence of the same type as the argument the Court employs to nullify the application of Articles 25 and 38 of the Articles of War by restricting their own broader coverage by reference to Article 2. For reasons set forth in the margin, [37] I think it equally invalid here. Neither Article 60 nor Article 63 contains such a restriction of meaning as the Court reads into them. [38] In the absence of any such limitation, it would seem that they were intended to cover all judicial proceedings, whether instituted for crimes allegedly committed before capture or later. Policy supports this view. For such a construction is required for the security of our own soldiers, taken prisoner, as much as for that of prisoners we take. And the opposite one leaves prisoners of war open to any form of trial and punishment for offenses against the laws of war their captors may wish to use, while safeguarding them, to the extent of the treaty limitations, in cases of disciplinary offense. This, in many instances, would be to make the treaty strain at a gnat and swallow the camel. The United States has complied with neither of these Articles. It did not notify the protecting power of Japan in advance of trial as Article 60 requires it to do, although the supplemental bill charges the same failure to petitioner in Item 89. [39] It is said that, although this may be true, the proceeding is not thereby invalidated. The argument is that our noncompliance merely gives Japan a right of indemnity against us and that Article 60 was not intended to give Yamashita any personal rights. I cannot agree. The treaties made by the United States are by the Constitution made the supreme law of the land. In the absence of something in the treaty indicating that its provisions were not intended to be enforced, upon breach, by more than subsequent indemnification, it is, as I conceive it, the duty of the courts of this country to insure the nation's compliance with such treaties, except in the case of political questions. This is especially true where the treaty has provisions โ€” such as Article 60 โ€” for the protection of a man being tried for an offense the punishment for which is death; for to say that it was intended to provide for enforcement of such provisions solely by claim, after breach, of indemnity would be in many instances, especially those involving trial of nationals of a defeated nation by a conquering one, to deprive the Articles of all force. Executed men are not much aided by postwar claims for indemnity. I do not think the adhering powers' purpose was to provide only for such ineffective relief. Finally, the Government has argued that Article 60 has no application after the actual cessation of hostilities, as there is no longer any need for an intervening power between the two belligerents. The premise is that Japan no longer needs Switzerland to intervene with the United States to protect the rights of Japanese nationals, since Japan is now in direct communication with this Government. This of course is in contradiction of the Government's theory, in other connections, that the war is not over and military necessity still requires use of all the power necessary for actual combat. Furthermore the premise overlooks all the realities of the situation. Japan is a defeated power, having surrendered, if not unconditionally then under the most severe conditions. Her territory is occupied by American military forces. She is scarcely in a position to bargain with us or to assert her rights. Nor can her nationals. She no longer holds American prisoners of war. [40] Certainly, if there was the need of an independent neutral to protect her nationals during the war, there is more now. In my opinion the failure to give the notice required by Article 60 is only another instance of the commission's failure to observe the obligations of our law. What is more important, there was no compliance with Article 63 of the same Convention. Yamashita was not tried according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power. Had one of our soldiers or officers been tried for alleged war crimes, he would have been entitled to the benefits of the Articles of War. I think that Yamashita was equally entitled to the same protection. In any event, he was entitled to their benefits under the provisions of Article 63 of the Geneva Convention. Those benefits he did not receive. Accordingly, his trial was in violation of the Convention.",The Geneva Convention of 1929.
+782,104229,1,6,"Wholly apart from the violation of the Articles of War and of the Geneva Convention, I am completely unable to accept or to understand the Court's ruling concerning the applicability of the due process clause of the Fifth Amendment to this case. Not heretofore has it been held that any human being is beyond its universally protecting spread in the guaranty of a fair trial in the most fundamental sense. That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider for others, perhaps ultimately for all. The Court does not declare expressly that petitioner as an enemy belligerent has no constitutional rights, a ruling I could understand but not accept. Neither does it affirm that he has some, if but little, constitutional protection. Nor does the Court defend what was done. I think the effect of what it does is in substance to deny him all such safeguards. And this is the great issue in the cause. For it is exactly here we enter wholly untrodden ground. The safe signposts to the rear are not in the sum of protections surrounding jury trials or any other proceeding known to our law. Nor is the essence of the Fifth Amendment's elementary protection comprehended in any single one of our time-honored specific constitutional safeguards in trial, though there are some without which the words fair trial and all they connote become a mockery. Apart from a tribunal concerned that the law as applied shall be an instrument of justice, albeit stern in measure to the guilt established, the heart of the security lies in two things. One is that conviction shall not rest in any essential part upon unchecked rumor, report, or the results of the prosecution's ex parte investigations, but shall stand on proven fact; the other, correlative, lies in a fair chance to defend. This embraces at the least the rights to know with reasonable clarity in advance of the trial the exact nature of the offense with which one is to be charged; to have reasonable time for preparing to meet the charge and to have the aid of counsel in doing so, as also in the trial itself; and if, during its course, one is taken by surprise, through the injection of new charges or reversal of rulings which brings forth new masses of evidence, then to have further reasonable time for meeting the unexpected shift. So far as I know, it has not yet been held that any tribunal in our system, of whatever character, is free to receive such evidence as in its opinion would be of assistance in proving or disproving the charge, or, again as in its opinion, would have probative value in the mind of a reasonable man; and, having received what in its unlimited discretion it regards as sufficient, is also free to determine what weight may be given to the evidence received without restraint. [41] When to this fatal defect in the directive, however innocently made, are added the broad departures from the fundamentals of fair play in the proof and in the right to defend which occurred throughout the proceeding, there can be no accommodation with the due process of law which the Fifth Amendment demands. All this the Court puts to one side with the short assertion that no question of due process under the Fifth Amendment or jurisdiction reviewable here is presented. I do not think this meets the issue, standing alone or in conjunction with the suggestion which follows that the Court gives no intimation one way or the other concerning what Fifth Amendment due process might require in other situations. It may be appropriate to add here that, although without doubt the directive was drawn in good faith in the belief that it would expedite the trial and that enemy belligerents in petitioner's position were not entitled to more, that state of mind and purpose cannot cure the nullification of basic constitutional standards which has taken place. It is not necessary to recapitulate. The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply. I cannot accept the view that anywhere in our system resides or lurks a power so unrestrained to deal with any human being through any process of trial. What military agencies or authorities may do with our enemies in battle or invasion, apart from proceedings in the nature of trial and some semblance of judicial action, is beside the point. Nor has any human being heretofore been held to be wholly beyond elementary procedural protection by the Fifth Amendment. I cannot consent to even implied departure from that great absolute. It was a great patriot who said: He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself. [42] MR. JUSTICE MURPHY joins in this opinion.",The Fifth Amendment.
+783,145679,1,3,Reversed. JUSTICE ALITO took no part in the consideration or decision of this case.,The judgment of the Ninth Circuit is accordingly
+784,84709,1,1,"The objection is not sufficient to quash the writ of error. The teste may be amended by our own record of the duration of the last term; and it is, of course, amendable. II. Ingersoll objected, that the writ of error was not directed to any Circuit Court; for, its address was To the Judges of the Circuit Court, holden in and for the district aforesaid: whereas no district was previously named. Dallas, in reply, observed, that the district of Georgia, was indorsed on the writ, that the attestation of the record was in Georgia, and that the record returned was from the Circuit Court of the Georgia district. By the COURT: The omission is merely clerical. We wish, indeed, that more attention were paid to the transcribing of records; but there is enough, in the present case, to amend by; and, therefore, let the omission be supplied. III. Ingersoll objected, that the value of the matter in dispute does not appear upon the record, to be sufficient to sustain a writ of error. The land, which is the immediate subject of the supplemental bill, was sold for 128l. 19s. 4d. and that is the only criterion of its value exhibited to the Court. Dallas. The value of the property in dispute, must be its actual value, for the purposes of jurisdiction. The price at a forced sale, for taxes, many years ago, cannot rationally be taken for the actual value of the land, with its meliorations. The Court will, therefore, permit the plaintiff in error to ascertain the fact by affidavits, on notice to the opposite party. It was so done in Williamson v. Kincaid. By the COURT: Let the rule be entered on the same terms, as in the case of Williamson v. Kincaid. These preliminary objections to the writ being obviated, and the depositions being returned, to prove the value of the land (which was sufficient to sustain the writ of error), Dallas argued for a reversal of the decree of the Circuit Court on two grounds: [(3)] 1st. On the merits; and, 2d. On the want of a description of the parties, so as to give a federal jurisdiction. 1st. On the merits. The hearing on the bill and answer, operates as a tacit admission of the facts stated in the answer; which is not contradicted in any respect; and which establishes Daniel Course's purchase of the land in question, as a fair and valid transaction. Hind. Pr. Ch. 416, 7. 289. 441. The widow Course was not a party to the original bill; and cannot, therefore, be bound by the decree in that case. The defendants to the original bill are not parties to the supplemental bill; for, process is only prayed and issued against the widow. Yet, the decrees in the original suit are referred to as exhibits, though not filed, in the supplemental suit; and in the supplemental suit a decree is pronounced against the defendants in the original suit as well as against the widow, who is the sole defendant. Besides, the question is emphatically a question of assets to pay a debt, for which partnership property was first responsible; and the personal estates of the debtors before their real estates. Yet, no account is given of the partnership fund; and neither the minor heirs, nor other legal representatives of Daniel Course, are made parties to the suit, though their interest is expressly stated in the answer. Hind. Pr. Ch. 2. 8. 10. 420. 283, 4. Mitf. 89. 145. 2d. On the want of description. The only descriptive addition to the name of Elizabeth Course, throughout the record, is that she is the widow of Daniel Course, deceased; not stating that either he, or she, was a citizen of the state of Georgia. 3 Dall. 382. Bingham v. Cabot. 4 Dall. Mossman v. Higginson. Turner v. The Bank of North America. Turner v. Enrille. It would be extravagant to infer citizenship from mere residence, nor can it be successfully urged, that because the parties to the original bill (which, by the by, is not attached to the writ of error) were well described, this Court has jurisdiction on the supplemental bill, against a new party, not described, not pledged by any joint contract, and not connected in privity, or interest, with the defendants to the original bill. Mitf. 31. Ingersoll, for the defendant in error, answered: 1st. On the merits. The decree of the Circuit Court was not pronounced simply on the supplemental bill and answer; but on the decrees in the original suit, which liquidated and fixed the quantum of the debt; the conveyance to Daniel Course; and the tax laws of the state of Georgia. The conveyance was charged to be a fraudulent, pretended, deed, which was a matter of fact; 3 Dall. 321. and it was ascertained (not merely by the inadequate consideration, but) by reference to the tax laws, which did not authorise the sale at the time, when it took place, nor, at any time, if there were personal assets; and, consequently, the Court was bound to regard it as a nullity. [(4)] The objection, on the score of parties, cannot prevail, against the decree, that virtually finds the conveyance to be fraudulent; and, therefore, that no one claiming under it could derive a title, or interest, in the land. Besides, the widow Course is the tenant in possession of the premises, and the natural object of the supplemental bill; she must be presumed to have given notice to all proper persons; and, after all, if the objection has weight, it is sufficient to answer, that no one will be bound by the decree, to whom, on principles of law and equity, it does not extend. 2d. On the want of description. It is not necessary to describe the parties in the supplemental suit, which is merely an incident of the original bill, and must be brought in the same Court. The citizenship, however, of the plaintiff in error, does sufficiently appear, by reasonable presumption and necessary implication. It has never been decided, that the very term citizens and aliens, must be used in the description; but, if the description fairly imports, that one party to the suit is an alien, and the other party a citizen; or that the parties are citizens of different states; the Court will assert its jurisdiction. Then, the purchase and possession of real estate announce the character of citizen; since aliens cannot purchase and hold real estate in Georgia; and the long residence of Daniel Course, the purchaser, and his family, in the state, is a circumstance strongly corroborative. If the widow is sufficiently described, to show that she was a citizen of Georgia; there can be no doubt that the complainants are sufficiently described as aliens. By the COURT: Having examined the record in the case of Bingham v. Cabot, we are satisfied, that the decision there, must govern upon the present occasion. It is, therefore, unnecessary to form, or to deliver any opinion upon the merits of the cause. Let the decree of the Circuit Court be reversed.","Ingersoll, for the defendants in error. By the COURT:"
+785,86540,1,1,"The state of Maryland could lay no tax on imported goods, even after the importation was consummated, and the goods removed to the importer's warehouse for sale, but still unsold. Brown v. Maryland , 12 Wheat., 419. A fortiori , not on effects deposited in the hands of an executor, trustee or agent, to be exported or remitted to the owner abroad. Shifting the tax from the material of the export to the person of the exporter, does not alter its essence. Brown v. Maryland , 12 Wheat., 449.",The tax in question is essentially a tax on exports.
+786,110661,3,1,"The Court of Appeals objected that designed . . . for use is ambiguous with respect to whether items must be inherently suited only for drug use; whether the retailer's intent or manner of display is relevant; and whether the intent of a third party, the manufacturer, is critical, since the manufacturer is the designer. 639 F. 2d, at 380-381. For the reasons that follow, we conclude that this language is not unconstitutionally vague on its face. The Court of Appeals' speculation about the meaning of design is largely unfounded. The guidelines refer to paper of colorful design and to other specific items as conclusively designed or not designed for illegal use. [18] A principal meaning of design is [t]o fashion according to a plan. Webster's New International Dictionary of the English Language 707 (2d ed. 1957). Cf. Lanzetta v. New Jersey, 306 U. S. 451, 454, n. 3 (1939). It is therefore plain that the standard encompasses at least an item that is principally used with illegal drugs by virtue of its objective features, i. e., features designed by the manufacturer. A business person of ordinary intelligence would understand that this term refers to the design of the manufacturer, not the intent of the retailer or customer. It is also sufficiently clear that items which are principally used for nondrug purposes, such as ordinary pipes, are not designed for use with illegal drugs. Moreover, no issue of fair warning is present in this case, since Flipside concedes that the phrase refers to structural characteristics of an item. [19] The ordinance and guidelines do contain ambiguities. Nevertheless, the designed for use standard is sufficiently clear to cover at least some of the items that Flipside sold. The ordinance, through the guidelines, explicitly regulates roach clips. Flipside's co-operator admitted that the store sold such items, see Tr. 26, 30, and the village Chief of Police testified that he had never seen a roach clip used for any purpose other than to smoke cannabis. App. 52. The Chief also testified that a specially designed pipe that Flipside marketed is typically used to smoke marihuana. Ibid. Whether further guidelines, administrative rules, or enforcement policy will clarify the more ambiguous scope of the standard in other respects is of no concern in this facial challenge.",Designed for use
+787,110661,3,2,"Whatever ambiguities the designed . . . for use standard may engender, the alternative marketed for use standard is transparently clear: it describes a retailer's intentional display and marketing of merchandise. The guidelines refer to the display of paraphernalia, and to the proximity of covered items to otherwise uncovered items. A retail store therefore must obtain a license if it deliberately displays its wares in a manner that appeals to or encourages illegal drug use. The standard requires scienter, since a retailer could scarcely market items for a particular use without intending that use. Under this test, Flipside had ample warning that its marketing activities required a license. Flipside displayed the magazine High Times and books entitled Marijuana Grower's Guide, Children's Garden of Grass, and The Pleasures of Cocaine, physically close to pipes and colored rolling papers, in clear violation of the guidelines. As noted above, Flipside's co-operator admitted that his store sold roach clips, which are principally used for illegal purposes. Finally, in the same section of the store, Flipside had posted the sign, You must be 18 or older to purchase any head supplies. [20] Tr. 30.",Marketed for use
+788,110985,2,1,"Both Houses of Congress [4] contend that we are without jurisdiction under 28 U. S. C. § 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides: Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party. Parker v. Levy, 417 U. S. 733, 742, n. 10 (1974), makes clear that a court of appeals is a court of the United States for purposes of § 1252. It is likewise clear that the proceeding below was a civil action, suit, or proceeding, that the INS is an agency of the United States and was a party to the proceeding below, and that that proceeding held an Act of Congress — namely, the one-House veto provision in § 244(c)(2) — unconstitutional. The express requisites for an appeal under § 1252, therefore, have been met. In motions to dismiss the INS appeal, the congressional parties [5] direct attention, however, to our statement that [a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it. Deposit Guaranty National Bank v. Roper, 445 U. S. 326, 333 (1980). Here, the INS sought the invalidation of § 244(c)(2), and the Court of Appeals granted that relief. Both Houses contend that the INS has already received what it sought from the Court of Appeals, is not an aggrieved party, and therefore cannot appeal from the decision of the Court of Appeals. We cannot agree. The INS was ordered by one House of Congress to deport Chadha. As we have set out more fully, supra, at 928, the INS concluded that it had no power to rule on the constitutionality of that order and accordingly proceeded to implement it. Chadha's appeal challenged that decision and the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals. But the INS brief to the Court of Appeals did not alter the agency's decision to comply with the House action ordering deportation of Chadha. The Court of Appeals set aside the deportation proceedings and ordered the Attorney General to cease and desist from taking any steps to deport Chadha; steps that the Attorney General would have taken were it not for that decision. At least for purposes of deciding whether the INS is any party within the grant of appellate jurisdiction in § 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. It is apparent that Congress intended that this Court take notice of cases that meet the technical prerequisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available only by writ of certiorari. When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal under § 1252. The agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. The appeal in No. 80-1832 is therefore properly before us. [6]",Appellate Jurisdiction
+789,110985,2,4,"It is contended that the Court should decline to decide the constitutional question presented by these cases because Chadha may have other statutory relief available to him. It is argued that since Chadha married a United States citizen on August 10, 1980, it is possible that other avenues of relief may be open under §§ 201(b), 204, and 245 of the Act, 8 U. S. C. §§ 1151(b), 1154, and 1255. It is true that Chadha may be eligible for classification as an immediate relative and, as such, could lawfully be accorded permanent residence. Moreover, in March 1980, just prior to the decision of the Court of Appeals in these cases, Congress enacted the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, under which the Attorney General is authorized to grant asylum, and then permanent residence, to any alien who is unable to return to his country of nationality because of a wellfounded fear of persecution on account of race. It is urged that these two intervening factors constitute a prudential bar to our consideration of the constitutional question presented in these cases. See Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring). If we could perceive merit in this contention we might well seek to avoid deciding the constitutional claim advanced. But at most these other avenues of relief are speculative. It is by no means certain, for example, that Chadha's classification as an immediate relative would result in the adjustment of Chadha's status from nonimmigrant to permanent resident. See Menezes v. INS, 601 F. 2d 1028 (CA9 1979). If Chadha is successful in his present challenge he will not be deported and will automatically become eligible to apply for citizenship. [10] A person threatened with deportation cannot be denied the right to challenge the constitutional validity of the process which led to his status merely on the basis of speculation over the availability of other forms of relief.",Alternative Relief
+790,110985,2,6,"It is also contended that this is not a genuine controversy but a friendly, non-adversary, proceeding, Ashwander v. TVA, 297 U. S., at 346 (Brandeis, J., concurring), upon which the Court should not pass. This argument rests on the fact that Chadha and the INS take the same position on the constitutionality of the one-House veto. But it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual. A case or controversy is presented by these cases. First, from the time of Congress' formal intervention, see n. 5, supra, the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under 28 U. S. C. § 1254(1). Second, prior to Congress' intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. We have already held that the INS's agreement with the Court of Appeals' decision that § 244(c)(2) is unconstitutional does not affect that agency's aggrieved status for purposes of appealing that decision under 28 U. S. C. § 1252, see supra, at 929-931. For similar reasons, the INS's agreement with Chadha's position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals' judgment. We agree with the Court of Appeals that Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2), the INS will execute its order and deport him. 634 F. 2d, at 419. [12] Of course, there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of these cases in the absence of any participant supporting the validity of § 244(c)(2). The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress. We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, 392 U. S., at 210, n. 9; United States v. Lovett, 328 U. S. 303 (1946).",Case or Controversy
+791,110985,2,7,"It is also argued that these cases present a nonjusticiable political question because Chadha is merely challenging Congress' authority under the Naturalization Clause, U. S. Const., Art. I, § 8, cl. 4, and the Necessary and Proper Clause, U. S. Const., Art. I, § 8, cl. 18. It is argued that Congress' Art. I power To establish an uniform Rule of Naturalization, combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens. The plenary authority of Congress over aliens under Art. I, § 8, cl. 4, is not open to question, but what is challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power. As we made clear in Buckley v. Valeo, 424 U. S. 1 (1976): Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. Id., at 132. A brief review of those factors which may indicate the presence of a nonjusticiable political question satisfies us that our assertion of jurisdiction over these cases does no violence to the political question doctrine. As identified in Baker v. Carr, 369 U. S. 186, 217 (1962), a political question may arise when any one of the following circumstances is present: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Congress apparently directs its assertion of nonjusticiability to the first of the Baker factors by asserting that Chadha's claim is an assault on the legislative authority to enact Section 244(c)(2). Brief for Petitioner in No. 80-2170, p. 48. But if this turns the question into a political question virtually every challenge to the constitutionality of a statute would be a political question. Chadha indeed argues that one House of Congress cannot constitutionally veto the Attorney General's decision to allow him to remain in this country. No policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts. [13] Other Baker factors are likewise inapplicable to this case. As we discuss more fully below, Art. I provides the judicially discoverable and manageable standards of Baker for resolving the question presented by these cases. Those standards forestall reliance by this Court on nonjudicial policy determinations or any showing of disrespect for a coordinate branch. Similarly, if Chadha's arguments are accepted, § 244(c)(2) cannot stand, and, since the constitutionality of that statute is for this Court to resolve, there is no possibility of multifarious pronouncements on this question. It is correct that this controversy may, in a sense, be termed political. But the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress. Marbury v. Madison, 1 Cranch 137 (1803), was also a political case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered. But courts cannot reject as `no law suit' a bona fide controversy as to whether some action denominated `political' exceeds constitutional authority. Baker v. Carr, supra, at 217. In Field v. Clark, 143 U. S. 649 (1892), this Court addressed and resolved the question whether a bill signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress. . . . . . . We recognize, on one hand, the duty of this court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the consequences that must result if this court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been . . . deposited in the public archives, as an act of Congress, . . . did not become a law. Id., at 669-670 (emphasis in original).",Political Question
+792,104757,1,1,"The court below has sustained the complaint for the principal reason that a lease to Big Horn would breach the lease to plaintiff and that plaintiff has a property right to have the lands involved withheld from lease. It is only on this basis of its property rights, created by contract, that plaintiff has been held to have standing to sue; for, if it has such rights, the court below truly said, The prevention of a breach of a restrictive provision in a contract is one of equity's most usual functions. Credited with the status of one claiming a property right by contract, threatened with invasion, the plaintiff has been termed by the Court of Appeals possessor of a valuable right, created by contract in the presence of valid and binding restrictive regulations. Of course, no express covenant of plaintiff's lease restricts the Secretary from leasing other lands to other applicants. The restrictive covenant is sought to be supplied by implication. The lease, it is reasoned, was expressly made subject to the Mineral Lands Leasing Act, 41 Stat. 437, as amended, 30 U. S. C. §§ 181 et seq.; the lease constructively includes the statute; the regulation which was not referred to in the lease nevertheless had the force and sanction of statute; hence, the restrictive regulation was a covenant of the lease. It is said the threatened lease would violate the regulation. For the purpose of testing the contract-right theory, we shall assume that it does so. What is the contract property right assumed? It is a right to nondevelopment of coal reserves in an indeterminate but substantial part of the public domain for benefit of its own lease. It is not a right necessary to the fullest physical development and enjoyment of all the lands plaintiff acquired for itself, and is one not normally appurtenant to real estate. The assumed covenant is purely negative in character and its whole burden is upon other premises owned by the United States in which the plaintiff has no other interest. They are premises, moreover, in which it is doubtful whether plaintiff could lawfully acquire any other interest in view of the limited areas which the statute allows to one lessee. By the assumed covenant, alienation and utilization of public lands in the manner authorized by Congress is restricted. This is for an unstated and indeterminable period. And it is accomplished not by a covenant expressed in the lease itself, but by one read into it from the regulations. A competent grantor by appropriate covenants could, of course, convey the right claimed here, and equity would enforce it. But when a right consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have done, it is an easement, sometimes called a negative easement, or an amenity. Trustees v. Lynch, 70 N. Y. 440, 447. An equitable restriction, which prevents development of property by building on it, has been said to be an easement, or servitude in the nature of an easement, a right in the nature of an easement, and an interest in a contractual stipulation which is made for their common benefit. Such equitable restrictions are real estate, part and parcel of the land to which they are attached and pass by conveyance. Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 246, 117 N. E. 244, 245. A contractual restriction which limits the use one may make of his own lands in favor of another and his lands is sometimes called a negative easement, which is the right in the owner of the dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property. It is an interest in lands which can pass only by deed and is in every legal sense an incumbrance. Uihlein v. Matthews, 172 N. Y. 154, 158, 64 N. E. 792, 793. But whatever we might determine to be the technical nature of the collateral property right claimed to result from Sheridan's lease, to any extent that it added a property right to the plaintiff's lands it created an incumbrance or subtraction from the aggregate of rights in the United States. Courts would not lightly imply against any land owner a covenant which would restrict alienation or enjoyment of his estate. There are even stronger reasons against implied covenants imposing easements, servitudes, amenities or restrictions upon the public lands. The Mineral Lands Leasing Acts confer broad powers on the Secretary as leasing agent for the Government. We find nothing that expressly prevents him from taking into consideration whether a public interest will be served or injured by opening a particular mine. But we find no grant of authority to create a private contract right that would override his continuing duty to be governed by the public interest in deciding to lease or withhold leases. The leasing Acts strictly limit the area which any one lessee may acquire, either directly or indirectly. 30 U. S. C. § 184. But if, in taking up a permitted allotment of public lands, one may acquire a right that other areas far more extensive must lie fallow and unused for the benefit of his lands, he is acquiring an interest in prohibited lands and an interest that may be worth many times that interest which the statute allows him. And it is acquired without additional purchase price, rental, or royalty. Moreover, it is not denied that the effect of sustaining plaintiff's suit would be to create a monopoly. Of course, it is a little one, limited to low-grade coal and to an advantageous shipping zone. Big Horn, if it gets no lease, must eventually go out of business, leaving its customers to Sheridan. And the United States could not for some period—we do not know how long—admit any other competitor to the field, unless it can be shown that Sheridan's supply is not equal to the market. It may, however, continue to acquire additional reserves as its own approach exhaustion. The whole claim of damage here is that competition from Big Horn will impair this snug little monopoly of the market to which plaintiff thinks it has acquired a property right. But the policy of the leasing statute looks the other way. Besides limiting the leasehold of any one lessee, it prevents mineral rights, on pain of forfeiture, from passing into the hands of any unlawful trust or becoming the subject of any contract or conspiracy in restraint of trade. 30 U. S. C. § 184. Its whole policy seems to contemplate the opening of the public domain to competitive exploitation. It nowhere authorizes anyone to grant or to obtain exclusive rights of access to these coal resources. What lessees can acquire from the Government is a supply of coal, not an exclusive market. We do not say that the Secretary may not withhold, or by regulation provide for withholding, lands from lease because the public interest would be injured, through impairing private business, from excess production capacity. But we find no authority to freeze this public interest into an irrevocable private property right. The allegations of the amended complaint therefore do not show a cause of action to enforce a restrictive covenant or property right against leasing other public lands as authorized by statute.",contract rights.
+793,104757,1,2,"Since the District Court was overruled by the Court of Appeals only because of the latter's property rights theory and since the complaint without these allegations had earlier been held insufficient, it may be questioned whether other grounds to sustain the judgment below can be availed of. But even if the allegations fail to show a property right that equity will protect, they might be sufficient to show a special injury or interest, such as would enable plaintiff to raise the question of violation of law or regulation in the proposed leasing. To end a litigation already pending too long, we assume, without deciding, that plaintiff may raise this issue which we now consider. The only claim of law violation is that the Secretary is proposing to violate his own regulation, promulgated pursuant to the Act and hence having the force of law. That it binds him as well as others while it is in effect is not doubted. The regulation on literal reading does not purport to prohibit the Secretary from any leasing unless need for new mines be shown. It does direct the General Land Office (now the Bureau of Land Management) to find need for additional capacity before recommending new leasing. Its recommendation, however, is only advisory and can be overruled or disregarded. On its face, therefore, the regulation would seem to be directed primarily to a procedural matter within the Department of the Interior. However, it is claimed that the letters of Secretary Ickes at the time it was adopted and the uniform practice since, show it to have been a regulation fixing a controlling policy. We proceed on that assumption. In the case before us the Secretary neither repudiates the regulation nor stands upon any right to depart from it. He says that, properly construed, it does not apply to the proposed Big Horn lease. It only prevents a lease which will introduce a new competitor to the field and not, he says, a lease which would only enable an existing mine and an established business to continue. Sheridan argues that this reasoning sanctions an evasion of the regulation in that Big Horn opened its mine on partially depleted state lands knowing it must get federal lands also or quit. The implication is that state lands were used as a sort of portal in which to stand while prying a federal lease out from under the regulation. Plaintiff insists that the Secretary is required to act in the light of conditions when Big Horn first applied, and not as of now when it has built up a going business on the inadequate state leases, aided by war conditions. But the action is one in equity, and equity will administer such relief as the exigencies of the case demand at the close of the trial. Bloomquist v. Farson, 222 N. Y. 375, 380, 118 N. E. 855, 856; Lightfoot v. Davis, 198 N. Y. 261, 273, 91 N. E. 582, 586. The question on injunction is whether the action threatened will be a violation if it now takes place in light of conditions shown by the proposed amended complaint. That pleads findings of the Department which show what has happened since the Big Horn application was filed. Without recourse to federal lands, it has established a mine and a business in the face of Sheridan competition. If time has improved Big Horn's position in this respect, it must be noted that the delay in acting on its application has been largely due to plaintiff's protests and litigations. We think a court of equity cannot term unreasonable the view of the Secretary that Big Horn's lease is not for an additional coal mine, need for which must be proved. It does not use federal reserves to add a new competitor to the market. It uses them to keep one there. We think the distinction is substantial and the Secretary's interpretation of the regulation is permissible, even if not inevitable. The declining market following the war and the growing use of oil may present difficult problems of survival for government lessees and of fair dealing for the Secretary. But courts can intervene only where legal rights are invaded or the law violated. We think the District Court rightly concluded that the amended complaint fails to state a legal case for the relief asked. Accordingly, the judgment below is Reversed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.",violation of law or regulation.
+794,109669,1,2,"There are, of course, two primary types of federal abstention. The first, usually referred to as Pullman abstention, involves an inquiry focused on the possibility that the state courts may interpret a challenged state statute so as to eliminate, or at least to alter materially, the constitutional question presented. Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941). See Bellotti v. Baird, 428 U. S. 132 (1976). The second type is Younger abstention, in which the court is primarily concerned, in an equitable setting, with considerations of comity and federalism, both as they relate to the State's interest in pursuing an ongoing state proceeding, and as they involve the ability of the state courts to consider federal constitutional claims in that context. Younger v. Harris, 401 U. S. 37 (1971). See Huffman v. Pursue, Ltd., 420 U. S. 592 (1975); Juidice v. Vail, 430 U. S. 327 (1977); Trainor v. Hernandez, ante, at 448 (concurring opinion). A. In the present case, appellants, who in effect are the State of Ohio, argued before the District Court that appellee was free to pursue his pending administrative appeal and have his constitutional claim adjudicated in the Court of Common Pleas, and that principles of comity therefore required abstention. [6] Although appellants in their written submission to that court cited Pullman, the argument was clearly to the effect that Younger abstention should apply. [7] The District Court held that abstention was unwarranted. It first asserted that in Gibson v. Berryhill, 411 U. S. 564 (1973), this Court stated specifically that administrative remedies need not be exhausted where the federal court plaintiff states a good cause of action under 42 U. S. C. § 1983. 408 F. Supp., at 1019. [8] The court then stated that § 4141.29 (D) (1) (a), on its face, would appear to except the plaintiff from unemployment benefits for the period he was laid off due to coal miners' strike, and that the Employment Bureau has denied benefits to plaintiff . . . solely on the basis of the challenged labor dispute disqualification. 408 F. Supp., at 1019. The court held that exhaustion of administrative remedies would be futile because the administrative appeal process would not permit a challenge to the constitutionality of the statute, and the Ohio courts had held the statute to be constitutional. Id., at 1019, and n. 1. Although the court observed that Huffman v. Pursue, Ltd., supra , broadened the Younger doctrine to include a prohibition against federal court interference with certain ongoing civil proceedings in the state courts, 408 F. Supp., at 1019-1020, the court held that Huffman was limited to the enjoining of ongoing state-initiated judicial proceedings, 408 F. Supp., at 1020 (emphasis in original), and did not apply to a challenge to administrative actions. Finally, the court held that abstention, along the Pullman line, would not be proper in this case because the challenged statute is not an ambiguous one involving unsettled questions of state law which could be rendered constitutionally inoffensive by a limiting construction in the state courts. 408 F. Supp., at 1020. The court concluded that it would be improper to require the appellee to undertake three administrative appeals [9] before he could challenge the statute in state court where, moreover, the issue as to the constitutionality of the labor dispute disqualification has apparently been settled. Ibid. In this Court, as has been noted, appellants have not argued that Younger requires a remand with directions to the District Court to abstain, and at oral argument they resisted the suggestion of such a remand. Tr. of Oral Arg. 9-10. Instead, it is amicus Republic Steel that has made the suggestion. Younger v. Harris reflects a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. 401 U. S., at 44. See Huffman v. Pursue, Ltd., 420 U. S., at 604; Juidice v. Vail, 430 U. S., at 334; Trainor v. Hernandez, ante, at 441-443, 445-446, and id., at 448 (concurring opinion). Younger and these cited cases express equitable principles of comity and federalism. They are designed to allow the State an opportunity to set its own house in order when the federal issue is already before a state tribunal. It may not be argued, however, that a federal court is compelled to abstain in every such situation. If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system. In the present case, Ohio either believes that the District Court was correct in its analysis of abstention or, faced with the prospect of lengthy administrative appeals followed by equally protracted state judicial proceedings, now has concluded to submit the constitutional issue to this Court for immediate resolution. In either event, under these circumstances Younger principles of equity and comity do not require this Court to refuse Ohio the immediate adjudication it seeks. [10] B. Amicus AFL-CIO argues that Pullman abstention is proper here. [11] The basis for the claimed applicability of Pullman is found in the facts that there were other steelworkers, at other Ohio facilities, laid off at the same time as appellee and assertedly for the same reason, and yet they were awarded unemployment compensation by the Bureau. See Brief for Appellants 3. Benefits were granted on the ground that the company-owned coal mines did not supply a sufficient amount of fuel to the plants there involved to effect a plant shutdown. [12] Amicus argues that if appellee were to pursue his administrative appeal, he might be granted benefits on the same ground. The problems with this approach, however, are several. First, appellee did not press any such claim before the Bureau or on administrative appeal, Tr. of Oral Arg. 9, and there is no indication that a claimant may be awarded benefits on the basis of a claim not made to the Bureau or Board of Review. Second, there is no indication that the plant at which appellee worked is situated similarly to the plants as to which benefits were granted. The Bureau apparently applied a test under which the closing of a plant was held not to be due to the labor dispute if the plant received less than 50% of its coal from the employer's struck mines. Id., at 7-8. There has been no claim or showing that the 50% test is unreasonable or improper and there has been no claim that appellee's plant was not dependent on the struck mines for more than 50% of its coal. What amicus suggests is that the court abstain on the basis of speculation that the unchallenged facts may not be as the Bureau obviously saw them, or that the Board might overturn an unchallenged standard of causation, or that the Board might even come up with a hitherto unknown and unclaimed reason for awarding benefits to appellee, such as a theory that because the coal strike was nationwide it was not  `at the employers' mines.'  See Brief for AFL-CIO as Amicus Curiae 8. None of these suggestions is based on fact or solid legal precedent. As has been noted, Pullman abstention is an equitable doctrine that comes into play when it appears that abstention may eliminate or materially alter the constitutional issue presented. There is a point, however, at which the possible benefits of abstention become too speculative to justify or require avoidance of the question presented. That point has been reached and surpassed here. We conclude that Pullman abstention is not appropriate.",Abstention
+795,109669,1,4,"We come, then, to the question whether the Ohio labor dispute disqualification provision is constitutional. The statute does not involve any discernible fundamental interest or affect with particularity any protected class. Appellee concedes that the test of constitutionality, therefore, is whether the statute has a rational relation to a legitimate state interest. Brief for Appellee 29. See New Orleans v. Dukes, 427 U. S. 297 (1976). Our statement last Term in Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976), explains the analysis: We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, [397 U. S. 471,] 485 [(1970)]. Such action by a legislature is presumed to be valid. Id., at 314. Appellee challenges the statute only in its application to persons in his situation. We find it difficult, however, to discern the precise nature of the situation that appellee claims may not be the subject of disqualification. His discussion focuses to a great extent on his claim that he is involuntarily unemployed, but he cannot be arguing that no person involuntarily unemployed may be disqualified, for he approves the draft bills' labor dispute provision. Brief for Appellee 53. That provision, as discussed above, would disqualify an involuntarily unemployed nonunion worker who opposed a strike but whose grade or class of workers nevertheless went out on strike. Appellee's claim of irrationality appears to be based, rather, on his view of the statute's broad sweep, in that it disqualifies an individual regardless of the geographical remoteness of the location of the dispute, and regardless of any arguable actual, or imputable, participation or direct interest in the dispute on the part of the disqualified person. [18] Id., at 34. Appellee thus focuses on the interests of the recipient of unemployment compensation. The unemployment compensation statute, however, touches upon more than just the recipient. It provides for the creation of a fund produced by contributions from private employers. The rate of an employer's contribution to the fund varies according to benefits paid to that employer's eligible employees. Ohio Rev. Code Ann. § 4141.25 (1973). Any action with regard to disbursements from the unemployment compensation fund thus will affect both the employer and the fiscal integrity of the fund. Appellee in effect urges that the Court consider only the needs of the employee seeking compensation. The decision of the weight to be given the various effects of the statute, however, is a legislative decision, and appellee's position is contrary to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy. Dandridge v. Williams, 397 U. S. 471, 486 (1970). In considering the constitutionality of the statute, therefore, the Court must view its consequences, not only for the recipient of benefits, but also for the contributors to the fund and for the fiscal integrity of the fund. Looking only at the face of the statute, an acceptable rationale immediately appears. The disqualification is triggered by a labor dispute other than a lockout. In other words, if a union goes on strike, the employer's contributions are not increased, but if the employer locks employees out, all his employees thus put out of work are compensated and the employer's contributions accordingly are increased. Although one might say that this system provides only rough justice, its treatment of the employer is far from irrational. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. Dandridge v. Williams, 397 U. S. at 485. The rationality of this treatment is, of course, independent of any innocence of the workers collecting compensation. Appellants assert three additional rationales for the disqualification provision. First, they argue that granting benefits to workers laid off due to a strike at a parent company's subsidiary plant in effect would be subsidizing the union members. Brief for Appellants 12. The District Court correctly rejected this rationale, as applied to appellee and his class, because payments to appellee would in no way directly subsidize the striking coal miners, and the fact that appellee happened to be a member of a union (other than the striking union) is not a legitimate reason, standing alone, to deny him benefits. 408 F. Supp., at 1022. The court continued: Moreover, close scrutiny of the reasons for the State's classification reveals that what the state is actually intending to prevent is not the `subsidizing' of unemployed union members per se, but the subsidizing of union-initiated work stoppages (emphasis in original). Ibid. This statement of the State's purpose reflects its second proffered justification, namely, that the granting of benefits would place the employer at an unfair disadvantage in negotiations with the unions. The District Court rejected this justification on the grounds that payments of funds to the steelworkers could hardly be deemed to put the coal miners in a position to refuse to negotiate with the steel companies until the companies reached a financial crisis, thereby causing the companies to yield to the unreasonable and economically unsound demands of the coal miners to prevent bankruptcy. Ibid. Although the District Court was reacting to appellants' own hyperbole in speaking of financial crises and bankruptcy, it must be recognized that effects less than pushing the employer to bankruptcy may be rationally viewed as undesirable. The employer's costs go up with every laid-off worker who is qualified to collect unemployment. The only way for the employer to stop these rising costs is to settle the strike so as to return the employees to work. Qualification for unemployment compensation thus acts as a lever increasing the pressures on an employer to settle a strike. The State has chosen to leave this lever in existence for situations in which the employer has locked out his employees, but to eliminate it if the union has made the strike move. Regardless of our views of the wisdom or lack of wisdom of this form of state neutrality in labor disputes, we cannot say that the approach taken by Ohio is irrational. The third rationale offered by the State is its interest in protecting the fiscal integrity of its compensation fund. This has been a continuing concern of Congress and the States with regard to unemployment compensation systems. See Report of the Committee on Economic Security, cited supra, at 482; Hearing on H. R. 6900 before the Senate Committee on Finance, 94th Cong., 1st Sess. (1975). It is clear that protection of the fiscal integrity of the fund is a legitimate concern of the State. We need not consider whether it would be rational for the State to protect the fund through a random means, such as elimination from coverage of all persons with an odd number of letters in their surnames. Here, the limitation of liability tracks the reasons found rational above, and the need for such limitation unquestionably provides the legitimate state interest required by the equal protection equation. The District Court's opinion contains a paragraph declaring that, in addition to violating the Equal Protection Clause, the disqualification denied appellee due process. 408 F. Supp., at 1022. There is, however, no claim of denial of procedural due process, cf. Mathews v. Eldridge, 424 U. S. 319 (1976), and we are unable to discern the basis for a claim that appellee has been denied substantive due process. The judgment of the District Court is reversed. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.",Constitutionality
+796,105306,1,1,"It is quite true, as the majority observes, that this issue was not dealt with by either of the courts below. The District Court and the Court of Appeals did not have to reach the problem because of their conclusion that Emspak's claim of privilege was inadequate. And for some reason the Government has not pressed the point. This, however, does not foreclose this Court from considering it. See Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289 (1917). And perhaps it is due that I should explain why I think we should deal with it. My reason is twofold: first, because to hold, as the Court does, that the questions involved in Counts 1 to 58 of the indictment were of an incriminatory character seems to me to verge on an abandonment of the rule that a valid claim of privilege exists only as to incriminatory questions; and second, because the more recent decisions of this Court appear to me to leave the standard for determining whether a question is incriminatory in great confusion. For example, the Court of Appeals for the Third Circuit had occasion not so long ago to manifest its bewilderment as to where this aspect of the privilege against self-incrimination now stands in light of recent decisions of this Court. See United States v. Coffey, 198 F. 2d 438 (1952). In short, I think the standard for judging the character of a question against which the Fifth Amendment privilege is asserted needs both rehabilitation and restatement. (1) The standard. The concept of an incriminating answer includes not only those answers which constitute an admission of guilt, but also those which may furnish evidence of guilt or merely supply a lead to obtaining such evidence. Counselman v. Hitchcock, 142 U. S. 547 (1892). The answer to almost any question a witness is asked could be regarded as being useful as evidence, or as furnishing a lead to evidence, in support of some conceivable criminal charge against the person to whom the question is addressed. But unlike a defendant in a criminal case, a witness in a grand jury or other judicial or legislative proceeding has never been allowed, by claiming his privilege, to refuse to answer any questions at all. That would completely subordinate the public interest in the conduct of such proceedings. Accordingly, lest claims of the Fifth Amendment privilege be used as a cover for a person refusing to perform his duty to co-operate in such proceedings, reasonable bounds have been put upon the exercise of the privilege. Those bounds were stated as long ago as 1861 by the English Court of Queen's Bench in The Queen v. Boyes, 1 B. & S. 311, 330-331, in language which this Court has adopted as the basis for the rule in this country. See Brown v. Walker, 161 U. S. 591, 599-600 (1896); Mason v. United States, 244 U. S. 362, 365-366 (1917). In the Boyes case, Cockburn, C. J., said: Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things—not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice. Throughout the course of its decisions this Court has consistently stated that the real danger v. imaginary possibility test is the proper standard to be applied in deciding whether particular questions are subject to a valid Fifth Amendment claim. See Brown v. Walker, supra ; Heike v. United States, 227 U. S. 131, 144 (1913); Mason v. United States, supra ; Rogers v. United States, 340 U. S. 367 (1951); Blau v. United States, 340 U. S. 159, 161 (1950); Hoffman v. United States, 341 U. S. 479, 486 (1951). But in recent per curiam reversals of contempt convictions this Court seems to have indicated a tendency to stray from the application of this traditional standard. [2] And I shall presently show that it has departed from that standard in this case. (2) Application of the standard to questions innocent on their face. The next question requiring consideration is: How should this standard be applied in a case where the questions appear on their face to call only for innocent answers? In United States v. Weisman, 111 F. 2d 260 (1940), the Court of Appeals for the Second Circuit had before it a claim of the Fifth Amendment privilege to a question in substantially the following form: Did you know anyone who visited or lived in Shanghai between 1934 and 1939? On the surface of things—had nothing more appeared—the possible answers to this question— Yes, No or I don't know—would all appear innocent. A situation could be imagined in which one of these answers would have tended to incriminate, but this possibility by itself would not be enough to justify the claim of privilege. Additional facts appeared, however, which showed the question to be part of an incriminatory pattern: the witness was a New York night club proprietor, unlikely to be acquainted with Shanghai residents or visitors, and he had engaged in transactions looking suspiciously like importations of narcotics from China. Because of these and other facts, a real danger of incrimination from answering the question was held to exist by the court, through Judge Learned Hand. It may be argued that the admission sought was not sufficiently implicating to justify the invocation of the privilege, see Wigmore, Evidence, §§ 2260-2261; but for present purposes we may assume that the result is a correct one. Of course, in some cases the background facts making an apparently innocent question dangerous may not be known to the court. Then the choice must be made between requiring the court to accept the witness' word that facts exist which would make his answer incriminating, and requiring the witness to explain the circumstances which justify his claim of privilege. To be sure, the second alternative involves the danger that the witness will have to reveal some incriminatory evidence in order to show why he should not be required to answer. Nevertheless, traditionally the witness has not been allowed to be sole judge of the character of the questions objected to; he is required to open the door wide enough for the court to see that there is substance to his claim. United States v. Weisman, supra . If the background facts are known or suspected to exist, this problem disappears, for all the witness has to do is point to such facts or suspicions. (3) Application of the standard to dangerous questions. It seems to me that the real danger v. imaginary possibility standard ought to be applied in the same fashion to dangerous questions. Such questions include those which call for an admission of a crime or a necessary element of a crime, or a fact which, while innocent on its face, is dangerous in the light of other facts already developed. In all such cases other facts may appear which serve to cast an innocent aspect upon the question. Suppose two men are suspected of having conspired to steal cash from a bank one day during business hours. Each is asked whether he saw the other on the day of the theft, and each pleads his privilege. But facts already developed in the investigation show that both men are tellers in this bank and have worked in the same cage for ten years. Certainly, in these circumstances, the fact of each having seen the other cannot rationally be said to have any tendency to establish their guilt, or, in any realistic sense, to aid the prosecution in discovering evidence against them, since the prosecution already would be expected to have independent evidence of their presence in the bank on that day. In other words, if background facts can make an innocent question dangerous, they can also make a dangerous question innocent. And in deciding whether the privilege is available, we must take into account all the facts—not just those tending to make the question dangerous. I do not suggest that in a trial for contempt a Fifth Amendment defense should be set at naught whenever the prosecution is able to offer an exculpatory explanation for an otherwise incriminating answer. What I do submit is that the privilege should not be available when the facts have been sufficiently developed at the time the claim of privilege is made so that it is plain that no possible answer to the question put to the witness could rationally tend to prove his guilt or supply the prosecution with leads to evidence against him. In such circumstances there is no real danger of harm to the witness to be apprehended from his answering the question. (4) Application of the standard to this case. I come finally to the issue as to how the real danger v. imaginary possibility standard should be applied to the questions involved in the first 58 counts of the indictment. [3] Typical of these questions were the following: Are you acquainted with Joseph Persily?; Is Max Helford at the present time a field organizer for the UE? On their face, and without more, these questions were certainly innocent enough. And therefore the first issue confronting us is whether other existing background facts and circumstances made the questions incriminatory. We start from these premises: From the announced purposes of the Subcommittee and the pattern of its questioning of witnesses, it is a fair inference that one of the Subcommittee's objectives was to show that communists held positions of responsibility in this Union. This in turn might be the starting point for prosecutions for filing false noncommunist affidavits under the Taft-Hartley Act [4] or for violations of the Smith Act. [5] The conclusion also seems justified that most, if not all, of the persons referred to in the 58 questions put to Emspak, and Emspak himself, were suspected of being communists or of having communist affiliations. Indeed, the Government on the oral argument conceded as much. Had Emspak admitted knowing any of these people, this might tend to show association with communists. While the decisions of this Court do not establish that these factors would have sufficed to make those questions incriminatory, lower courts have gone far in this direction. See Kasinowitz v. United States, 181 F. 2d 632 (1950); United States v. Raley, 96 F. Supp. 495 (1951); see also Falknor, Self-Crimination Privilege: Links in the Chain, 5 Vand. L. Rev. 479, 485-489 (1952). But there were also other background facts and circumstances. Emspak had told the Subcommittee that he was Secretary of the Union. He was asked if other named individuals held positions in the same Union, and with respect to some of them, whether he knew them personally. These things being so, it is difficult to see how the fact that Emspak knew some of these people or what position each held in the Union can rationally be said to support even an inference that he knew of their alleged communist affiliations, much less tend to prove that he himself had taken part in a conspiracy to advocate the forcible overthrow of the Government or had falsely sworn that he was not a communist. Nor could the answers to the questions have been of material assistance in providing leads to evidence to be used against him. Investigators presumably would already know that the Secretary of the Union knew other Union officials. Thus, in light of Emspak's admitted position, the questions appear proper. This conclusion is not affected by the additional possibility that Emspak's answers might have been admissible against him in a later criminal trial. If the answers were admissible, this fact should not of itself make the questions incriminatory, even though the answers might have been utilized by the prosecutor to show Emspak's acquaintance with these other persons as a first step in proving conspiracy, and the prosecutor would thus have been spared the necessity of proving this acquaintance by independent evidence. But in fact Emspak's answers would not have been admissible against him in such a trial. For at the time Emspak testified before the Sub-committee, a federal statute prevented the use of any of his testimony before that body as evidence against him in any later criminal proceedings, except a prosecution for perjury in the giving of the testimony. [6] Thus, to the extent that the incriminatory character of these questions depends solely upon the admissibility of Emspak's answers in evidence against him in a later criminal trial, there could hardly be a valid objection to them on this score. In the last analysis, the Court's holding seems to rest on the premise that the questions put to Emspak became automatically incriminatory once it was shown that he and those about whom he was interrogated were under suspicion of communism. This is painting with too broad a brush. It is true that under the rule as it exists a witness may sometimes have to walk a tightrope between waiver of his privilege, if he answers a question later held to be incriminatory, and contempt, if he refuses to answer a question later held to be nonincriminatory. And it may be that in some circumstances the privilege should be held to extend to questions which are not in themselves incriminatory, but which seem likely to lead to other questions which are. But in my view any such doctrine should be regarded as an exception to the general rule and should be confined to cases where special circumstances exist which make it unfair to apply the ordinary rule, such as where the witness is without counsel, is ignorant or confused, and the like. Some of the decisions of lower courts seem to suggest that in proceedings obviously designed to develop a case against a particular witness, the witness may be allowed to invoke the privilege as to all questions, as may a defendant in a criminal case. See Marcello v. United States, 196 F. 2d 437 (1952); Maffie v. United States, 209 F. 2d 225 (1954). I think, however, that such a view is too sweeping, and also that where there is room for the application of an exception to the ordinary rule, it should be done openly, and not under the guise of holding nonincriminatory questions incriminatory. No circumstances are shown here which would call for the application of any such exception. Emspak was represented by counsel and was obviously an intelligent and shrewd witness. The inference most readily drawn from the record is that Emspak did not want to stool pigeon against his associates. While such a motive would not, in my opinion, vitiate an otherwise valid claim of the privilege, it certainly furnished no legal excuse for refusing to answer nonincriminatory questions.",as to the incriminatory character of the 58 questions.
+797,106310,1,1,"Intelligent understanding of the document production questions presented requires a brief statement of their basis. They arose in connection with the testimony of Government witnesses Sullivan and Ondrejka. On direct examination, Sullivan testified that he joined the Communist Party in 1948 at the request of the Federal Bureau of Investigation, and in October 1949 transferred his membership from Cincinnati, Ohio, to Madison, Wisconsin, where, by secret means, he made contact with local leaders of the Communist Party and became active in its affairs. In those activities, he met petitioner in December 1949. Petitioner was then the section organizer for the Party in Madison. Thereafter, Sullivan attended a number of secret Communist Party group meetings in Madison in 1949 and 1950 at which petitioner was present and acted as the spokesman and leader. Sullivan testified that he gave written reports to the F. B. I. respecting Party meetings and activities soon after they occurred. At the close of Sullivan's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F. B. I. relating to his direct testimony. The narrative statements were produced to the judge, in camera, who, after excising the parts that did not relate to the witness' direct testimony, handed them to petitioner's counsel. On cross-examination, Sullivan testified that he was paid stipulated monthly amounts for his services, and was reimbursed for his expenses incurred in Communist Party activities, by the F. B. I., and that when he received the money he signed a receipt for it. His connection with the F. B. I. terminated in 1952. After completing the cross-examination of the witness, petitioner again moved for production of all statements made by the witness to the F. B. I., without excision. The Government objected to the motion on the grounds that it had produced all of the witness' statements that related to his direct testimony, and that there was no showing that the witness had given any other statements to the Government that related to his direct testimony. Thereupon, the court denied petitioner's motion. Petitioner then moved to strike the testimony of the witness, and that motion, too, was denied. On direct examination, Ondrejka testified that he joined the Communist Party at the request of the F. B. I. in October 1949 and remained a member of the Party until November 1953. He met petitioner at a Communist Party meeting in Milwaukee, Wisconsin, in January 1951, and thereafter attended many secret Communist Party meetings in Milwaukee where petitioner was present and active, and also participated with petitioner in numerous Party activities, until August 1953, and knew petitioner to be a member of the Communist Party throughout that period. Ondrejka testified that he gave written reports to the F. B. I. respecting Party meetings and activities soon after they occurred. At the conclusion of Ondrejka's direct testimony, petitioner moved for production, for use in cross-examination, of all statements given by the witness to the F. B. I. The court ordered the Government to produce to the judge. in camera, all statements that in any way affect the direct examination of the witness. Accordingly, all of the narrative statements given by the witness to the Government relating to his direct testimony were produced to the judge, who, after excising such parts as did not relate to the witness' direct testimony, delivered them to petitioner's counsel. Petitioner then moved for production of all statements relating to the testimony of the witness, without excision. That motion was denied. On cross-examination, Ondrejka testified that he was paid stipulated monthly amounts in cash for his services by the F. B. I., and, in addition, was reimbursed by the F. B. I. for his expenses, such as Communist Party dues, literature, contributions and travel, which he orally reported to an F. B. I. agent, who made notes thereof and later reimbursed him in cash. The court sustained the Government's objection to a question asking whether Ondrejka signed receipts for the moneys paid to him in reimbursement for his expenses. Petitioner then moved for production of all statements given by the witness to the F. B. I., whether written by the witness or by an F. B. I. agent as the result of interviews with the witness, which related to the witness' testimony on cross-examination, including particularly reports by the witness of his reimbursable expenses and the receipts which he signed evidencing reimbursement for those expenses. The Government opposed production of the documents on the ground that they did not relate to the direct testimony of the witness. It further objected to producing Ondrejka's reports of expenses, and the receipts he had signed when reimbursed for those expenses, on the grounds that they were administrative records of the F. B. I. and were immaterial and irrelevant, but the Government offered to produce a list showing the dates and amounts of the payments and whether they were for services or expenses. Petitioner refused to receive that proffered list. Thereupon, the court denied the motion. Petitioner then moved to strike all of Ondrejka's testimony, and that motion, too, was denied. Petitioner contends that his general demands for all statements, as well as his specific demand for the reports and receipts made by Ondrejka, encompassed, and the trial court erred to his prejudice in denying his motion to require the Government to produce, (1) the notes made by the F. B. I. agents covering Ondrejka's oral reports of expenses and (2) the receipts signed by Sullivan and Ondrejka for moneys paid to them in reimbursement for expenses. He supports these contentions with an elaborate argument which we need not delineate because the Solicitor General now concedes that the F. B. I. notes of Ondrejka's oral reports may have been statements within the meaning of 18 U. S. C. § 3500 (e) (2), [3] and he flatly concedes that the receipts signed by Sullivan and Ondrejka were statements within the meaning of § 3500. However, the Solicitor General contends that on the actual facts—many of which are not incorporated in the record before us—petitioner is not entitled to, and that we should not on this incomplete and imperfect record order, a new trial, because the true facts are that the F. B. I. agents' notes covering Ondrejka's oral reports of expenses were not in existence at the time of the trial, and the receipts signed by Sullivan and Ondrejka do not relate to their direct testimony as required by § 3500, or, if it may be said that any of them do relate to their direct testimony, that the same information, in much greater detail, was given to petitioner in the witnesses' narrative statements that were produced and delivered to his counsel at the trial, and hence if there was any error it was harmless. More specifically, the Solicitor General tells us in his brief that, although the nature of the Government's objections in the courts below implied that the agents' notes were in existence, his interrogation of the F. B. I. agents has disclosed that, after they incorporated the data contained in their notes of Ondrejka's oral reports into the receipts to be signed by him, the agents destroyed the notes in accord with their normal practice, and hence those notes were not in existence at the time of either of petitioner's trials. Although the receipts are not contained in the record before us, the Solicitor General says that there are 124 of them and that a careful examination of them reveals that none of Sullivan's receipts contains any itemization whatever of the nature of the reimbursed expenses, and thus they do not relate to anything mentioned in his direct testimony. With respect to Ondrejka's receipts, the Solicitor General says that, although the Government inadvertently represented to the District Court and the Court of Appeals that the list, proffered to petitioner at the trial and showing the dates and amounts of payments made to Ondrejka, gave all of the information that was contained in the receipts, his examination has disclosed that nine of Ondrejka's receipts do contain some itemization of the nature of his reimbursed expenses, but that only two of the nine can be said to relate to anything mentioned by Ondrejka on his direct examination, and that the same information, in greater detail, was contained in Ondrejka's narrative statements that were produced and delivered to petitioner's counsel at the trial. For these reasons, the Solicitor General contends that, viewed upon the now known and readily available actual facts, no error, at least no prejudicial error, resulted from the nonproduction of the F. B. I. notes and the Sullivan and Ondrejka receipts at the trial. However, the Solicitor General recognizes that petitioner is not bound to accept his statement that the F. B. I. notes of Ondrejka's oral reports of expenses were destroyed in accord with normal practice long prior to the trial, and that petitioner is entitled to an opportunity to examine the F. B. I. agents and other responsible Government officials on these matters which, of course, can be done only in the District Court. He recognizes, too, that his contentions with respect to the receipts signed by Sullivan and Ondrejka necessarily involve a detailed examination and comparison of the lengthy direct testimony of Sullivan and Ondrejka, the 124 receipts, the list showing the dates and amounts of payments to Ondrejka that was proffered to petitioner by the Government at the trial, and the numerous narrative statements by Sullivan and Ondrejka that were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgment and remand the case to the District Court to hear these issues and to determine whether a new trial should be ordered or the judgment should be reinstated with the right in the petitioner, of course, to appeal from any such judgment to the Court of Appeals. In opposition, petitioner argues that the claimed destruction of the agents' notes admits the destruction of evidence that may have been helpful to him and deprives him of his rights under § 3500 and to due process of law, and therefore the judgment should be reversed. Alternatively, he argues that only he and his counsel could determine the uses that might have been made of the receipts had they been produced, and he concludes that it would not be possible for the District Court, on remand, to find that the failure to produce the receipts was nonprejudicial or harmless error, and that therefore he is entitled to a new trial. As to petitioner's contention that the claimed destruction of the agents' notes admits the destruction of evidence, deprives him of legal rights and requires reversal of the judgment, it seems appropriate to observe that almost everything is evidence of something, but that does not mean that nothing can ever safely be destroyed. If the agents' notes of Ondrejka's oral reports of expenses were made only for the purpose of transferring the data thereon to the receipts to be signed by Ondrejka, and if, after having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practice, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right. Those are the factual representations made by the Solicitor General. Whether they are true can be determined only upon a hearing in the District Court. It is entirely clear that petitioner would not be entitled to a new trial because of the nonproduction of the agents' notes if those notes were so destroyed and not in existence at the time of the trial. It is equally clear that, notwithstanding the fact that the Sullivan and Ondrejka receipts were statements within the meaning of § 3500 and were demanded under that section, petitioner would not be entitled to a new trial because of the nonproduction of those receipts if in truth they do not relate to the direct testimony of those witnesses inasmuch as § 3500 (c) requires the court [to] excise the portions of [the] statement which do not relate to the subject matter of the testimony of the witness. The Solicitor General represents that 115 of the 124 receipts signed by Sullivan and Ondrejka do not contain any itemization of the nature of the reimbursed expenses nor relate to the direct testimony of those witnesses. If those representations are true, petitioner would not be entitled to a new trial because of the nonproduction of those 115 receipts. Inasmuch as the receipts are not contained in the record before us, whether the Solicitor General's representations are true can be determined only upon a hearing in the District Court. But the Solicitor General finds that two of Ondrejka's receipts may be said to relate to Ondrejka's direct testimony. However, he says that the same information as they contain and much more on the same subjects was contained in Ondrejka's narrative statements that were produced and delivered to petitioner at the trial, and therefore petitioner could not have been prejudiced by the nonproduction of those two receipts and is not entitled to a new trial on that account. It is true, as petitioner argues, that only the defense is in position to determine the precise uses that may be made of demanded documents, Jencks v. United States, 353 U. S. 657, 668, but that is not to say that the harmless error rule is never applicable in respect to the nonproduction of demanded documents. Upon very similar facts, we recently approved a holding that nonproduction of demanded documents was harmless error. Rosenberg v. United States, 360 U. S. 367. We there said: Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness' admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter. 360 U. S., at 371. While, as we said in the Rosenberg case, supra, a court should not confidently guess what defendant's attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled . . . , when the very same information was possessed by defendant's counsel as would have been available were error not committed [a court properly can find that] it would offend common sense and the fair administration of justice to order a new trial. 360 U. S., at 371. If it is true, as the Solicitor General represents, that the information contained on the two Ondrejka receipts had already been given to petitioner in Ondrejka's narrative statements covering the same subjects, it is clear that the District Court properly could find that the error in failing to produce those two receipts was harmless. Accordingly, we vacate the judgment and remand the cause to the District Court for a hearing confined to the issues raised by the Solicitor General's representations as stated in this opinion. The District Court shall make findings of fact on those issues. If the District Court finds that the Solicitor General's representations are true in all material respects, it shall enter a new final judgment based upon the record as supplemented by its findings, thereby preserving to petitioner the right to appeal to the Court of Appeals. If, on the other hand, the District Court finds that the Solicitor General's representations are untrue in any material respect, it shall grant petitioner a new trial.",the document production questions.
+798,106310,1,2,"Whether the District Court, on remand, grants or denies a new trial, it is obvious that petitioner's contentions respecting the court's instructions to the jury will not be mooted [4] and it seems necessary to decide them. Because of the nature of some of petitioner's contentions respecting the instructions, it seems appropriate to make clear just what was the charge upon which petitioner was convicted. He was not charged with criminality for being a member of or affiliated with the Communist Party, nor for participation in any criminal activities of or for the Communist Party. He was not charged with advocating or teaching the overthrow of the Government as was the case in Yates v. United States, 354 U. S. 298, or with knowing membership in an organization advocating the overthrow of the Government by force and violence as in Scales v. United States, 367 U. S. 203, and Noto v. United States, 367 U. S. 290. The charge was that, to enable a labor union of which he was an officer to comply with § 9 (h) of the National Labor Relations Act and thus be permitted to use the processes of the Labor Board, petitioner, on December 11, 1952, knowingly made and caused to be transmitted to the Labor Board a false affidavit, saying he was not then a member of or affiliated with the Communist Party when in fact he was both a member of and affiliated with the Communist Party, and that those acts were made criminal and punishable by 18 U. S. C. § 1001. Nothing in § 9 (h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Assn. v. Douds, 339 U. S. 382, 402, but § 1001 provides that Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies . . . a material fact . . . or makes or uses any false writing or document knowing the same to contain any false . . . statement . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both. Petitioner was charged with and convicted for violating that statute—of knowingly making and transmitting to the Labor Board on December 11, 1952, an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party—not for being a member of or affiliated with the Communist Party, nor for participating in any activities, lawful or unlawful, of the Communist Party, although, of course, determination of whether the affidavit was true or false requires a determination of whether petitioner was a member of or affiliated with the Communist Party on December 11, 1952. Neither is there any question here about the fact that the evidence was sufficient to make a submissible case for the jury and to support its verdict—notwithstanding petitioner's tangential implications to the contrary. The questions here are simply whether the court's instructions to the jury properly defined membership in and affiliation with the Communist Party. Membership. Petitioner first contends that the instruction respecting membership [5] should have defined membership as, and required a finding of, a definite objective factual phenomenon or specific formal act of joining rather than, as was done, in the subjective terms of a state of mind. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count I of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence of a definite objective factual phenomenon [of joining] or of a specific formal act of joining. Indeed, the very nature of the case—claimed membership in an underground or secretly operating organization whose membership records, if any, are not available to the Government— precludes the possibility of such evidence, and, if the rule were as petitioner contends, false affidavits of non-Communist Party membership could be made and submitted to the Labor Board with impunity. Membership in such a secretly operating organization is, to all but the organization and its member or members, necessarily subjective, and, although it must be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically infer, the ultimate subjective fact of membership, it is, in the very nature of such a case, necessary that the court's instructions define membership in such an organization in subjective terms or not at all. A similar question arising under § 9 (h) was presented in Jencks v. United States, 353 U. S. 657, but the Court's opinion, turning on the document production question, did not reach it. However, Mr. Justice Burton's separate concurring opinion, joined by MR. JUSTICE HARLAN, 353 U. S., at 672, and, on the question here considered, also by MR. JUSTICE FRANKFURTER, 353 U. S., at 672, did reach the question. It found the membership defining instruction given in that case to be deficient because it failed to emphasize to the jury the essential element of membership in an organized group—the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member. 353 U. S., at 679. In the instant case, the District Court's instruction to the jury defined membership to the jury in almost precisely that language (see note 5, sixth paragraph). Similar instructions in cases arising under § 9 (h) have been held proper by every United States Court of Appeals that has passed upon the question. Fisher v. United States, 231 F. 2d 99, 107 (C. A. 9th Cir.); [6] Lohman v. United States, 251 F. 2d 951, 954 (C. A. 6th Cir.); [7] Lohman v. United States, 266 F. 2d 3 (C. A. 6th Cir.); [8] Travis v. United States, 269 F. 2d 928, 942-943 (C. A. 10th Cir.). [9] From these consistent holdings and upon principle, it seems clear that the instruction's definition of membership was not erroneous under Count I of the indictment. Petitioner next contends that the court's instruction failed to tell the jury precisely what objective circumstances would be sufficient to justify a finding of membership, and that the criteria which it told the jury they might consider in determining the question of membership were too indefinite to give the jury the necessary guidance. Although the ultimate fact of membership in such a case is almost necessarily a subjective one, it may be proved, as we have said, by objective facts and circumstances having a rational tendency to show, and from which the jury rationally and logically may find, the ultimate fact of membership. But, for the purpose of confining the jury's considerations to the relevant evidence, it was proper for the court to outline the objective acts, shown in the evidence, which they might consider in determining the ultimate subjective fact of membership. Here, the court's instruction, after telling the jury that intent is a state of mind and can only be determined by what an individual says and does, went on to say that in determining the issue as to whether the defendant was or was not a member of the Communist Party at the time alleged in the indictment the jury might take into consideration, as circumstances bearing on that question, the acts and statements of the defendant (see note 5, sixth paragraph), and in this connection they might take into consideration whether the defendant did the things set forth in the 12 numbered paragraphs that followed, which, it said, were some of the indicia of Communist Party membership (see note 5, eighth paragraph). While the criteria specified in the numbered paragraphs of the challenged instruction were in substance 12 of the 14 criteria specified by Congress in § 5 of the Communist Control Act of 1954 (50 U. S. C. § 844) to be considered by a jury in determining Communist Party membership under that Act, it is unnecessary for us to determine in this case whether that section applies, by force of law, to prosecutions under 18 U. S. C. § 1001 for making a false affidavit to the Labor Board in purported compliance with § 9 (h) of the National Labor Relations Act, for it is obvious that those 12 criteria rationally tend to show, and were sufficient to enable a jury rationally and logically to find, the ultimate fact of membership, though subjective, and hence it was proper, independently of and wholly apart from § 5 of the Communist Control Act of 1954, to tell the jury, as this instruction did, that they might consider those criteria in determining whether the defendant was or was not a member of the Communist Party on the date charged in the indictment. Similar criteria were contained in the membership instruction given in the Jencks case, supra, [10] and the opinion of Mr. Justice Burton did not find any error in that aspect of the instruction. Very similar instructions telling the jury that they might consider such or similar criteria in determining the ultimate subjective fact of membership within the meaning of § 9 (h) have been consistently and uniformly approved, Hupman v. United States, 219 F. 2d 243 (C. A. 6th Cir.); [11] Fisher v. United States, 231 F. 2d 99, 107 (C. A. 9th Cir.). [12] In Travis v. United States, 247 F. 2d 130, 135, the United States Court of Appeals for the Tenth Circuit reversed because the membership instruction failed to specify and require the jury to consider such criteria in determining the question of membership. On retrial, the jury was instructed to consider virtually the same criteria of membership as was the jury in the instant case. The defendants were again convicted, and, on appeal, the Court of Appeals specifically approved the instruction. Travis v. United States, 269 F. 2d 928, 942-943. We think there is no merit in petitioner's contention that the instruction failed adequately to state the objective circumstances that might be considered by the jury in determining membership or that the criteria submitted were too indefinite to give the jury the necessary guidance. Nor is there any merit in petitioner's contention that those criteria allowed a finding of membership on a date other than that charged in the indictment. That contention fails to consider the whole charge, particularly the vital fact that the court repeatedly emphasized to the jury that the issue for them to determine was whether petitioner was or was not a member of the Communist Party on the date that he executed and transmitted the affidavit. Petitioner, and the amici curiae, contend that § 5 of the Communist Control Act of 1954 (50 U. S. C. § 844) is constitutionally invalid in that it violates the First Amendment of the Constitution and denies due process because it permits a jury to base its finding of membership upon statements and acts that are protected by the First Amendment. They then argue that because the challenged instruction substantially adopted 12 of the 14 criteria mentioned in that section this instruction, too, was violative of the First Amendment and denied due process. We have no occasion here to consider the constitutionality of § 5 of the Communist Control Act of 1954 because, as we have said, the indicia which the challenged instruction told the jury to consider as circumstances bearing upon the issue of membership did rationally tend to show, and were sufficient, if believed, to enable the jury rationally and logically to find, the ultimate subjective fact of membership, wholly apart from and independently of § 5 of the Communist Control Act of 1954. To petitioner's argument that the submitted criteria permitted the jury to find membership from statements and acts that were wholly innocent in themselves or even protected by the First Amendment, it is enough to recall that nothing in § 9 (h) or elsewhere in the National Labor Relations Act makes or purports to make criminal either membership in or affiliation with the Communist Party, American Communications Assn. v. Douds, supra, 339 U. S., at 402, and that petitioner was not charged with criminality for being a member of or affiliated with the Communist Party, nor with participating in any criminal activities of or for the Communist Party, but only with having made and submitted to the Government an affidavit falsely swearing that he was not a member of or affiliated with the Communist Party in violation of 18 U. S. C. § 1001. It would be strange doctrine, indeed, to say that membership in the Communist Party—when, as here, a lawful status—cannot be proved by evidence of lawful acts and statements, but only by evidence of unlawful acts and statements. Affiliation. We think the court's instruction defining affiliation [13] was correct under Count II of the indictment and in accord with all the precedents. A far less complete and definitive instruction on affiliation was given by the trial court in Jencks v. United States, supra , and was challenged in this Court. That instruction merely quoted dictionary definitions and then stated that [a]ffiliation. . . means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both. See 353 U. S., at 679. The Court's opinion, turning on the document production problem, did not reach that question. However the opinion of Mr. Justice Burton did reach the question. It did not find the instruction erroneous insofar as it went, but found it to be deficient because It did not require a continuing course of conduct `on a fairly permanent basis' `that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith,'  and thus allowed the jury to convict petitioner on the basis of acts of intermittent cooperation. 353 U. S., at 679-680. The instruction given in this case contained not only the definition given in the Jencks case (see note 13, paragraph one) but went on to embody almost exactly the expanded definition prescribed by Mr. Justice Burton (see note 13, paragraph two). The opinions of the Courts of Appeals have uniformly approved that definition. In Bryson v. United States, 238 F. 2d 657, 664, the United States Court of Appeals for the Ninth Circuit found an identical instruction to be full and complete and said that it adequately informed the jury of the meaning of the term [affiliated with] and provided an adequate standard for evaluating the evidence. In Lohman v. United States, 251 F. 2d 951, 954, the United States Court of Appeals for the Sixth Circuit, speaking through Judge, now MR. JUSTICE, STEWART, specifically approved the definition of affiliated with prescribed by Mr. Justice Burton's opinion in the Jencks case; and in Travis v. United States, 247 F. 2d 130, 135, the United States Court of Appeals for the Tenth Circuit approved an almost identical instruction. [14] Petitioner contends that one may not be affiliated with the Communist Party, within the meaning of § 9 (h), by any direct relationship with the Party, but only by being a member of another organization that is affiliated with the Party, and that the instruction was erroneous for failure so to advise the jury. If petitioner is right in this contention it would follow, despite the fact the question is foreclosed against him here, that the evidence did not make a submissible case for the jury on Count II of the indictment and his motion for a directed verdict of acquittal on that count should have been granted, for there was no evidence that petitioner was affiliated with the Communist Party through membership in some other organization. It is true that one may be affiliated with the Communist Party through membership in an organization that is affiliated with the Communist Party, American Communications Assn. v. Douds, supra, 339 U. S., at 406, 421, 450, but that is not to say one may not do so directly, and every decision that has considered the meaning of affiliated with, as used in § 9 (h), has held that one may be directly affiliated with the Communist Party. See Mr. Justice Burton's separate concurring opinion in Jencks v. United States, supra, 353 U. S., at 672, 679; and Bryson v. United States, supra, 238 F. 2d, at 664; Lohman v. United States, supra, 251 F. 2d, at 954; Travis v. United States, supra, 269 F. 2d, at 942. In a manner similar to his attack upon the court's instruction defining membership, petitioner contends that the instruction in question erroneously defined the phrase affiliated with only in subjective terms and without objective criteria. However, just as with regard to membership, affiliation, in relation to Count II in this case, is necessarily subjective. But the ultimate fact of affiliation, though subjective, may be proved by evidence of objective facts and circumstances having a rational tendency to show, and from which the jury may rationally and logically find, the ultimate fact of affiliation. It cannot be disputed here that there was such evidence at the trial. The court's instruction told the jury that [w]hether or not the defendant was affiliated with the Communist party . . . is a question of fact which you are to determine from all the evidence in the case, and that their determination should be based on the statements made or acts done by the accused, and all other facts and circumstances in evidence . . . . We think that instruction was adequate. Petitioner argues that because the first paragraph of the instruction stated that affiliation means a relationship short of and less than membership in the Communist Party, but more than that of mere sympathy for the aims and objectives of the Communist Party, and the third paragraph of the instruction stated that affiliation . . . means a relationship which is equivalent or equal to that of membership in all but name, it was contradictory and confusing. We agree that the third paragraph appears inconsistent with the first. However, it is evident that the erroneous third paragraph could not have prejudiced petitioner for it, though inconsistent with the correct first paragraph, exacted a higher standard of proof of affiliation than the law required. Petitioner, quite understandably, would require instructions as specific as mathematical formulas. But such specificity often is impossible. The phrases member of and affiliated with, especially when applied to the relationship between persons and organizations that conceal their connection, cannot be defined in absolute terms. The most that is possible, and hence all that can be expected, is that the trial court shall give the jury a fair statement of the issues— i. e., whether petitioner was a member of or affiliated with the Communist Party on the date of his affidavit—give a reasonable definition of the terms and outline the various criteria, shown in the evidence, which the jury may consider in determining the ultimate issues. We believe that the instructions in this case, which are consistent with all the judicial precedents under § 9 (h), adequately met those tests. Accordingly, the judgment is vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.",the instructions to the jury.
+799,108266,1,2,"The companion cases decided today hold that a federal court should not interfere by injunction with an existing state criminal prosecution pending against the federal court plaintiff at the time the federal action is brought, except upon a showing that great, immediate, and irreparable injury is threatened. Such a showing may be, for example, in the form of bad-faith harassment of the federal court plaintiff by state law enforcement officials. These decisions adhere to the policy established by this Court that, in the absence of such showing, [i]t is generally to be assumed that state courts and prosecutors will observe [in the pending prosecution] constitutional limitations as expounded by this Court. Dombrowski v. Pfister, 380 U. S. 479, 484 (1965). While the three-judge court sustained the constitutionality of the state statute on its face (a holding not before us on this appeal), the court interfered with the pending state prosecution under the statute to the extent of ordering the return of the seized materials and suppressing their use as evidence in the prosecution, thus leaving the State free to proceed with the prosecution on the basis of other evidence. This interference was improper on this record. There is an utter absence of any evidence that the seizures and the arrest of appellee Ledesma, and the filing of the informations accusing Ledesma of violation of the state statute, were undertaken in bad faith to harass appellees, or for any purpose except the good-faith enforcement of the State's criminal laws. I have no occasion to consider, and intimate no view upon, the holding of the Federal District Court that, as to the seizures and the arrest of appellee Ledesma, the conclusion is irresistible in logic and in law that none of these may be constitutionally undertaken prior to an adversary judicial determination of obscenity. 304 F. Supp., at 667. [2] That appeal to federal constitutional protections was open to appellee Ledesma in the state prosecution by way of challenge, in any manner permitted by Louisiana criminal procedure, to the validity of the arrest, and objections to admission into evidence of, or motions to suppress use of, the materials. In Dombrowski, the Court expressly included controversies over the admissibility of evidence as controversies which, without more, involved no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a [state] criminal prosecution. 380 U. S., at 485. The Court said: It is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment. Id., at 485 n. 3. While there may be circumstances in which a federal court could properly adjudicate such a claim, this record discloses none which justified this three-judge court in doing so. I therefore join the Court in concluding that paragraphs 1 and 2 of the judgment should be reversed and set aside.",The Injunctions
+800,108266,1,3,"Threshold questions must be answered before the merits of the declaratory judgment which is paragraph 4 of the judgment of the three-judge court are reached. The first threshold question is whether the declaratory judgment is properly before us for review. Two opinions, both written by Judge Boyle who initiated the three-judge panel, were filed on July 14, 1969, one for the three-judge court and the other a separate opinion of Judge Boyle. Judge Boyle's opinion for the three judges explained: Although it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance, as distinguished from statutes of state-wide application, Moody v. Flowers, 387 U. S. 97 (1967), the court takes this opportunity to express its views on the constitutionality of the ordinance in the interest of judicial economy. The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith. 304 F. Supp., at 670 n. 31 (emphasis added). Judge Boyle's separate opinion was a brief statement: For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: 1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. 2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper. 304 F. Supp., at 671. The Court holds that we have no jurisdiction to review the declaratory judgment on the premise that the declaratory judgment against the local ordinance was not issued by the three-judge court but rather by Judge Boyle acting as a single judge. With all respect this is not the case. Both the Court and my Brothers DOUGLAS and STEWART insist that Judge Boyle's separate statement was in fact a judgment. I would suppose Judge Boyle himself is the best authority as to that and he expressly referred to the statement as his opinion. Appeals are, of course, taken from judgments and not from opinions. No judgment was entered by Judge Boyle pursuant to his separate opinion and therefore there existed no judgment pursuant to the order of the single judge to go to the Court of Appeals for review. The only judgment entered in the case was that entered by the three-judge court on August 14, 1969. Since the injunctions in paragraphs 1 and 2 rendered that judgment appealable directly to this Court, paragraph 4 of that judgment, the declaratory judgment, is necessarily before us. However, other considerations require that we decide whether the three-judge court properly rendered the declaratory judgment. Our per curiam affirmance in Milky Way Productions v. Leary, 305 F. Supp. 288 (SDNY 1969), aff'd, 397 U. S. 98 (1970), fully supports the action of the three-judge court in doing so. That case did not present attacks on a statute and ordinance but rather attacks on two different New York statutes. The first attack was on N. Y. Penal Law § 235.00 (1965), New York's general obscenity statute. The second attack was on N. Y. Code Crim. Proc. §§ 148-150 (Supp. 1970-1971). The District Court held that a three-judge court was required to deal with the attack on § 235.00 since the claim was that that section was facially unconstitutional. However, the attack on §§ 148-150 of the Code of Criminal Procedure was not that those sections were facially unconstitutional but only that those sections were unconstitutionally invoked before there had been an adversary judicial determination on the obscenity of the publications in question ( i. e., as applied). The District Court acknowledged that the attack on the Code provisions was thus probably not for determination by three judges, but as a simple claim of official lawlessness, cognizable by one judge. 305 F. Supp., at 295. Nevertheless, the District Court, invoking the principle that once three-judge court jurisdiction is established on one claim, the court may consider other issues that alone would not have called for three judges, held that, since there was three-judge jurisdiction of the claim of the facial unconstitutionality of § 235.00, jurisdiction existed also to determine the merits of the claim that the criminal procedure provisions were unconstitutionally applied. 305 F. Supp., at 295-296. Our affirmance sustained this holding. Plainly that affirmance governs this case and sustains the propriety of the action of the three-judge court in passing on the constitutionality of the ordinance. Appellants concede that Milky Way forecloses any challenge on their part to the action of the three-judge court. Indeed, they regard the action of the three-judge court as supported by the cases in this Court authorizing three-judge courts to consider attacks on statutes on nonconstitutional grounds when those courts are properly convened to hear constitutional challenges to the statutes. [3] The appellants argue, however, that no controversy requisite to relief under the Federal Declaratory Judgment Act existed after the nolle prosequi was entered. This argument presents the second threshold question. Appellants rely upon Golden v. Zwickler, 394 U. S. 103 (1969). In that case a New York criminal statute prohibited the distribution of anonymous handbills in election campaigns. A distributor of anonymous handbills opposing the re-election of a Congressman sought in federal court a judgment declaring the statute unconstitutional. The federal action was brought after reversal by the New York courts of the appellee's conviction for distributing handbills during an earlier campaign of the Congressman. See Zwickler v. Koota, 389 U. S. 241 (1967). Appellee desired to distribute handbills during a forthcoming campaign of that Congressman, but the Congressman had retired from Congress to become a justice of the New York Supreme Court. In those circumstances the Court held that no controversy requisite to declaratory relief existed, since Zwickler's only target was a particular Congressman and the prospect was neither real nor immediate of a campaign involving the Congressman. 394 U. S., at 109. The situation here is quite different, however. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). Appellees' complaint expressly alleges, and there was no evidence or finding to the contrary, that appellees desire to continue to keep for sale and to sell the publications and playing cards in question. Thus, unlike the situation in Golden, the question of the constitutionality of the ordinance is presented in the context of a specific live grievance. 394 U. S., at 110. This conclusion is buttressed by the finding of the three-judge court that [appellees] fear prosecution [under the ordinance] at some future date. 304 F. Supp., at 670. Indeed, in light of the appellants' aggressive prosecution of appellees, the inference is permissible that any attempts by appellees to continue to display the questioned publications for sale might well again be met with prosecutions under both the statute and ordinance. There is no question that there is a continuing controversy between the appellants and the State involving the sale of allegedly obscene publications. Appellants did not assert the contrary before the District Court, nor do they assert the contrary here. [4] I conclude that it cannot be said that the three-judge court erred in finding that there existed the controversy requisite under the Federal Declaratory Judgment Act. The third threshold question is whether the state prosecution under the ordinance was pending so as to make federal intervention inappropriate. The fact is, as I have already noted, that informations against appellee Ledesma for violation of the ordinance were outstanding when this federal suit was filed. However, the nolle prosequi of those informations was entered before the three-judge court convened and heard the case. That court therefore treated the case as one in which no prosecution under the ordinance was pending. This was not error. The availability of declaratory relief was correctly regarded to depend upon the situation at the time of the hearing and not upon the situation when the federal suit was initiated. See Golden v. Zwickler, 394 U. S., at 108. The principles of comity as they apply to federal court intervention, treated by the Court today in Nos. 2, 4, 7, 9, 41, and 83, see supra, at 93, present this issue. The key predicate to answering the question whether a federal court should stay its hand, is whether there is a pending state prosecution where the federal court plaintiff may have his constitutional defenses heard and determined. Ordinarily, that question may be answered merely by examining the dates upon which the federal and state actions were filed. If the state prosecution was first filed and if it provides an adequate forum for the adjudication of constitutional rights, the federal court should not ordinarily intervene. When, however, as here, at the time of the federal hearing there is no state prosecution to which the federal court plaintiff may be relegated for the assertion of his constitutional defenses, the primary reason for refusing intervention is absent. Here, there was no other forum for the adjudication of appellees' constitutional objections to the ordinance. There is, of course, some intrusion into a state administration of its criminal laws whenever a federal court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in Samuels v. Mackell, supra , that considerations of federalism ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the federal suit is filed. The Court says, [I]n cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well. Id., at 73. But considerations of federalism are not controlling when no state prosecution is pending and the only question is whether declaratory relief is appropriate. In such case, the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance. The controversy over the power of federal courts to declare state statutes unconstitutional and to enjoin their enforcement has roots that reach back at least to Chisholm v. Georgia, 2 Dall. 419 (1793), where in a contract action this Court held that a State could be sued by a citizen of another State. That decision . . . created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States. Hans v. Louisiana, 134 U. S. 1, 11 (1890) (Bradley, J.). The amendment was thought to have overruled Chisholm. Although the amendment might have been construed to give a broad immunity from federal suits to States and state officials acting pursuant to state policy, that construction was rejected in Osborn v. Bank of the United States, 9 Wheat. 738, 847-848 (1824). Osborn involved a confiscatory state tax on a federal instrumentality. In sustaining a federal court injunction against the state tax, Chief Justice Marshall analyzed the controversy over federal judicial power as testing the viability of our federal system: The eleventh amendment . . . has exempted a State from the suits of citizens of other States . . . ; and the very difficult question is to be decided, whether, in such a case, the Court may act upon the agents employed by the State, and on the property in their hands. Before we try this question by the constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail. A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts, that the agents of a State, alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law in the United States. 9 Wheat., at 847-848. Though recognizing the sensitivity of granting injunctions in this context, the Court held that neither the Eleventh Amendment nor any principles of federalism prevented the lower federal courts from giving such relief where necessary to vindicate paramount federal law in a case where a State was not itself a party of record. The broad reach of the reasoning in Osborn has since been qualified, see generally L. Jaffe, Judicial Control of Administrative Action 213-222 (1965), but the basic principle that in appropriate circumstances federal courts will exercise their equity power against state officials to protect rights secured and activities authorized by paramount federal law remains firmly embedded in our jurisprudence. Pennoyer v. McConnaughy, 140 U. S. 1, 9-18 (1891); Ex parte Young, 209 U. S. 123 (1908); Truax v. Raich, 239 U. S. 33, 37-38 (1915); Terrace v. Thompson, 263 U. S. 197, 214-215 (1923). See also Leiter Minerals v. United States, 352 U. S. 220, 225-226 (1957) (Frankfurter, J.). Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution. During the years between Osborn and Young, and particularly after the Civil War, Congress undertook to make the federal courts the primary guardians of constitutional rights. This history was reviewed in Zwickler v. Koota, 389 U. S., at 245-249. The principal foundations of the expanded federal jurisdiction in constitutional cases were the Civil Rights Act of 1871, 17 Stat. 13, which in § 1 empowered the federal courts to adjudicate the constitutionality of actions of any person taken under color of state statute, ordinance, regulation, custom, or usage, see 42 U. S. C. § 1983, 28 U. S. C. § 1343 (3), and the Judiciary Act of 1875, 18 Stat. 470, which gave lower federal courts general federal-question jurisdiction, see 28 U. S. C. § 1331. These two statutes, together, after 1908, with the decision in Ex parte Young, established the modern framework for federal protection of constitutional rights from state interference. That framework has been strengthened and expanded by subsequent acts of Congress and subsequent decisions of this Court. Ex parte Young involved a state regulatory statute with penal sanctions. At the suit of railroad stockholders, a federal circuit court temporarily enjoined the railroad from complying with the statute, and also temporarily enjoined Young, the state Attorney General, from instituting any proceedings to enforce the statute. Young nevertheless brought an enforcement proceeding in a state court, and was thereupon held in contempt by the circuit court. He brought habeas corpus in this Court, contending that the circuit court lacked jurisdiction to hold him in contempt. This Court held, first, that the original suit was properly within the general federal-question jurisdiction of the circuit court; second, that individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action, 209 U. S., at 155-156; and, third, that a federal court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: When [the state] proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. 209 U. S., at 161-162. The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia . Opposition focused principally on the power of lower federal courts, and of single judges of such courts, to issue preliminary injunctions, often ex parte, against the enforcement of state statutes, generally regulatory statutes carrying penalties. See generally Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154 (1963); H. Hart & H. Wechsler, The Federal Courts and the Federal System 848-849 (1953); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 5-7 (1964). The opinion in Ex parte Young anticipated the problem. The Court noted the objection that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions. 209 U. S., at 166. The same year the case was decided Congress considered a measure to disable the lower federal courts from enjoining enforcement of state statutes, but the proposal failed to attract sufficient support for passage. See 42 Cong. Rec. 4848-4849 (1908). Two years later, a similar measure passed the House, see 46 Cong. Rec. 313, 316 (1910), but the Senate would not accept it. See F. Frankfurter and J. Landis, The Business of the Supreme Court 143 (1927). However, the same year, Congress did respond to Ex parte Young. It did not attempt to overrule the case by constitutional amendment or by statute; it did not seek to contain it by expanding the statutory bar against federal injunctions of state proceedings, 28 U. S. C. § 2283, beyond stays of suits already instituted; it did not follow the precedent of the Eleventh Amendment by excluding a class of litigation from federal jurisdiction; nor did it anticipate the technique of the Norris-LaGuardia Act by forbidding the use of the injunction in a defined class of cases, see 47 Stat. 70, 29 U. S. C. §§ 101-115. Rather, Congress ratified the active role assigned to the federal courts by the post-Civil War legislation and accepted the basic holdings of Ex parte Young, but provided that a preliminary injunction against enforcement of a state statute could be issued only by a three-judge district court, see 36 Stat. 557, now 28 U. S. C. § 2281, [5] and that the decision of such a court granting or denying an injunction would be directly appealable to this Court. See 28 U. S. C. § 1253. Thus the Three-Judge Court Act confirmed Congress' acceptance of Ex parte Young and the course of federal adjudication of the constitutionality of state statutes which it represented, [6] and Congress has never departed from that acceptance on any of the several occasions when it has amended the Act. As Professor Wright has written, [T]he doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law. C. Wright, Handbook of the Law of Federal Courts 186 (2d ed. 1970). [7] During the period leading up to and following Ex parte Young the federal injunction suit became the classic method for testing the constitutionality of state statutes. [8] The injunctive remedy was strong medicine, and the Three-Judge Court Act did not eliminate the defects in and the widespread hostility to the injunction procedure. The procedure was unsatisfactory for both private plaintiffs and state defendants: a plaintiff had the burden of proving the traditional equity requirements for an injunction; and if the plaintiff prevailed in court, an injunction issued against the defendant state official, paralyzing enforcement of the state statute pending further review. Consequently, in 1934, without expanding or reducing the subject matter jurisdiction of the federal courts, or in any way diminishing the continuing vitality of Ex parte Young with respect to federal injunctions, Congress empowered the federal courts to grant a new remedy, the declaratory judgment. See Act of June 14, 1934, c. 512, 48 Stat. 955, now 28 U. S. C. § 2201. The express purpose of the Federal Declaratory Judgment Act was to provide a milder alternative to the injunction remedy. The House Committee Report stated, The principle involved in this form of procedure is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts. H. R. Rep. No. 1264, 73d Cong., 2d Sess., 2 (1934). Of particular significance on the question before us, the Senate report makes it even clearer that the declaratory judgment was designed to be available to test state criminal statutes in circumstances where an injunction would not be appropriate: The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice. . . . It has been employed in State courts . . . for the declaration of rights contested under a statute or municipal ordinance, where it was not possible or necessary to obtain an injunction. ..... The procedure has been especially useful in avoiding the necessity, now so often present, of having to act at one's peril or to act on one's own interpretation of his rights, or abandon one's rights because of a fear of incurring damages. So now it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity. Compare Shredded Wheat Co. v. City of Elgin (284 Ill. 389, 120 N. E. 248, 1918), where the parties were denied an injunction against the enforcement of a municipal ordinance carrying a penalty, and were advised to purport to violate the statute and then their rights could be determined, with Erwin Billiard Parlor v. Buckner (156 Tenn. 278, 300 S. W. 565, 1927), where a declaratory judgment under such circumstances was issued and settled the controversy. . . . The fact is that the declaratory judgment has often proved so necessary that it has been employed under other names for years, and that in many cases the injunction procedure is abused in order to render what is in effect a declaratory judgment. For example, in the case of Pierce v. Society of Sisters (268 U. S. 510, 525 . . . 1925), the court issued an injunction against the enforcement of an Oregon statute which was not to come into force until 2 years later; in rendering a judgment declaring the statute void, the court in effect issued a declaratory judgment by what was, in effect, apparently, an abuse of the injunction. See also Village of Euclid v. Ambler Realty Co. (272 U. S. 365 . . . 1926). Much of the hostility to the extensive use of the injunction power by the Federal courts will be obviated by enabling the courts to render declaratory judgments. ..... Finally, it may be said that the declaratory-judgment procedure has been molded and settled by thousands of precedents, so that the administration of the law has been definitely clarified. The Supreme Court mentioned one of its principal purposes in Terrace v. Thompson (263 U. S. 197, 216 . . . 1923), by Butler, J., when it said:  `They are not obliged to take the risk of prosecutions, fines, and imprisonment and loss of property in order to secure an adjudication of their rights.'  S. Rep. No. 1005, 73d Cong., 2d Sess., 2-3, 6 (1934). Both before and after the enactment of the Federal Declaratory Judgment Act, the practice of those States that provided a declaratory remedy was to make it available to test the validity of criminal legislation. See E. Borchard, Declaratory Judgments 1024 (2d ed. 1941). Professor Borchard, a leading proponent of the Act, testified: Most courts are unwilling to grant injunctions . . . on the ground that it is a criminal statute, but you can get a declaratory judgment in States that have it. Hearings on H. R. 5623 before a Subcommittee of the Senate Committee on the Judiciary, 70th Cong., 1st Sess., 19 (1928). He testified further that when Federal courts do get power to render declaratory judgments, instead of rendering an injunction, as is now done, that requires three judges, plaintiff will get a declaratory judgment. You would not be able to get an injunction, in such cases, from one judge, but you could get a declaratory judgment as to your rights. Id., at 39. Indeed, early in the history of the Act this Court applied it to test the constitutionality of a federal statute carrying criminal sanctions. See Currin v. Wallace, 306 U. S. 1 (1939). Professor Borchard also introduced a written statement in the hearings, which stated in part: [T]he declaratory judgment serves another useful purpose. It often happens that courts are unwilling to grant injunctions to restrain the enforcement of penal statutes or ordinances, and relegate the plaintiff to his option, either to violate the statute and take his chances in testing constitutionality on a criminal prosecution, or else to forego, in the fear of prosecution, the exercise of his claimed rights. Into this dilemma no civilized legal system operating under a constitution should force any person. The court, in effect, by refusing an injunction informs the prospective victim that the only way to determine whether the suspect is a mushroom or a toadstool, is to eat it. Assuming that the plaintiff has a vital interest in the enforcement of the challenged statute or ordinance, there is no reason why a declaratory judgment should not be issued, instead of compelling a violation of the statute as a condition precedent to challenging its constitutionality. Hearings on H. R. 5623, supra, at 75-76. The legislative history of the Federal Declaratory Judgment Act is overwhelming that declaratory judgments were to be fully available to test the constitutionality of state and federal criminal statutes. Much of the hostility to federal injunctions referred to in the Senate report was hostility to their use against state officials seeking to enforce state regulatory statutes carrying criminal sanctions; this was the strong feeling that produced the Three-Judge Court Act in 1910, the Johnson Act of 1934, 28 U. S. C. § 1342, and the Tax Injunction Act of 1937, 28 U. S. C. § 1341. The Federal Declaratory Judgment Act was intended to provide an alternative to injunctions against state officials, except where there was a federal policy against federal adjudication of the class of litigation altogether. See discussion, infra, at 126-128, of Great Lakes Co. v. Huffman, 319 U. S. 293 (1943). Moreover, the Senate report's clear implication that declaratory relief would have been appropriate in Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), both cases involving federal adjudication of the constitutionality of a state statute carrying criminal penalties, and the report's quotation from Terrace v. Thompson , which also involved anticipatory federal adjudication of the constitutionality of a state criminal statute, make it plain that Congress anticipated that the declaratory judgment procedure would be used by the federal courts to test the constitutionality of state criminal statutes. This history compels rejection of the Court's suggestion, ante, at 86 n. 2, that although no informations were pending at the time of the hearing, declaratory relief was inappropriate in the absence of a showing that appellees would suffer irreparable injury of the kind necessary to justify federal injunctive interference with the state criminal processes. Congress expressly rejected that limitation and to engraft it upon the availability of the congressionally provided declaratory remedy is simply judicial defiance of the congressional mandate. It is nothing short of judicial repeal of the statute. If the statute is to be repealed or rewritten, it must be done by Congress, not this Court. Ex parte Young makes clear that the most significant factor determining the propriety of federal intervention is whether a state proceeding exists that was initiated before the federal suit was filed. The Court there upheld a federal court's injunction against future state proceedings where the injunction was in aid of the federal court's jurisdiction, but the Court expressly excepted from its holding the case where a state proceeding exists which was pending at the time federal jurisdiction attached. Specifically, the Court stated, But the Federal court cannot, of course, interfere in a case where the proceedings were already pending in a state court. 209 U. S., at 162. The Court cited Harkrader v. Wadley, 172 U. S. 148 (1898), in support, thus making clear that the ruling was influenced by the statutory provision, first enacted in 1793, prohibiting federal injunctions against proceedings pending in any court of a State. The history of that provision, now 28 U. S. C. § 2283, was recently traced in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281 (1970). However, the statutory bar applies only to prosecutions begun before the federal suit is filed and does not preclude injunctions against the institution of future prosecutions. See generally Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 366-378 (1930). Thus, the general rules that follow from Ex parte Young are, first, that where there is no pending state proceeding when the federal suit is filed, a federal court can adjudicate constitutional claims against state officials and issue such orders as are necessary to preserve its jurisdiction; and, second, that where a state proceeding exists that was pending at the time suit was filed in federal court the federal court should ordinarily decline to render either declaratory or injunctive relief. [9] These rules were developed further in the light of additional considerations in Dombrowski v. Pfister, 380 U. S. 479 (1965). Dombrowski confirmed the well-established principle that constitutional defenses to a state criminal charge must be initially tested in state rather than in federal courts. See Douglas v. City of Jeannette, 319 U. S. 157 (1943); Cameron v. Johnson, 390 U. S. 611, 618 (1968); compare Stefanelli v. Minard, 342 U. S. 117 (1951), with Rea v. United States, 350 U. S. 214 (1956). However, Dombrowski also recognized that exceptional circumstances may justify federal intervention when the opportunity to raise constitutional defenses at the state criminal trial does not assure protection of the constitutional rights at stake. Dombrowski considered two situations in which exceptional circumstances can exist. First, if in order to discourage conduct protected by the First Amendment or by some other provision of the Constitution, [10] a State brings or threatens to bring a criminal prosecution in bad faith for the purpose of harassment, the bringing of the prosecution or the threat is itself a constitutional deprivation since it subjects a person to a burden of criminal defense which he should not have to bear, and there then exists a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights. [11] Dombrowski v. Pfister, supra, at 485; see Cameron v. Johnson, supra, at 621; cf. Achtenberg v. Mississippi, 393 F. 2d 468, 474-475 (CA5 1968). Accordingly, in this context a civil suit is an appropriate means to cut short the unconstitutional state prosecution. The civil suit for remedial relief may appropriately be brought in federal court since the federal courts are the primary guardians of constitutional rights. Zwickler v. Koota, supra . Second, where a criminal statute prohibits or seems to prohibit constitutionally protected conduct, and to that extent is unconstitutionally vague or overbroad (a contention not made as to the state statute in this case), the opportunity to raise constitutional defenses at a criminal trial is inadequate to protect the underlying constitutional rights, since in that situation a substantial number of people may well avoid the risk of criminal prosecution by abstaining from conduct thought to be proscribed by the statute. Even persons confident that their contemplated conduct would be held to be constitutionally protected and that accordingly any state conviction would be overturned may be deterred from engaging in such conduct by the prospect of becoming enmeshed in protracted criminal litigation, and by the risk that in the end, years later, their confidence will prove to have been misplaced and their resources wasted. This deterrence is magnified by the scope that vagueness or overbreadth gives for discriminatory or capricious enforcement. Federal anticipatory relief is justified here because it is a principal function of the federal courts to vindicate the constitutional rights of all persons—those who want to obey state laws as well as those prepared to defy them. [12] Thus in Dombrowski we held that in cases in these categories federal courts may properly intervene in order to assure the full protection of federal constitutional rights. [13] Taken together, the principles of Ex parte Young and Dombrowski establish that whether a particular case is appropriate for federal intervention depends both on whether a state proceeding is pending and on the ground asserted for intervention. Where the ground is bad-faith harassment, intervention is justified whether or not a state prosecution is pending. Intervention in such cases does not interfere with the normal good-faith enforcement of state criminal law by constitutional means, and does not necessarily require a decision on the constitutionality of a state statute. It simply prevents particular unconstitutional use of the State's criminal law in bad faith against the federal plaintiff. Under Douglas v. City of Jeannette, supra, at 164, a person has no immunity from a state prosecution brought lawfully and in good faith, but he is entitled to federal relief from a state prosecution which amounts to bad-faith harassment. [14] The situation is different where the plaintiff seeks federal intervention on the ground that a state statute is unconstitutional, but does not allege facts showing bad-faith harassment. In cases of this sort, on whatever provision the claim of unconstitutionality rests, the justification for intervention is that individuals should be able to exercise their constitutional rights without running the risk of becoming lawbreakers. This justification applies with full force where there is a continuing live controversy and federal intervention is sought when there is no state prosecution in which the statute may be tested. However, where federal intervention is sought after a state prosecution has commenced and while it is pending, the interests protected by federal intervention must be weighed against the broad countervailing principles of federalism. The pending state proceeding ordinarily provides an existent, concrete opportunity to secure vindication of constitutional claims in the state courts, with ultimate review by this Court. In this situation collateral resort to a federal court will not speed up the resolution of the controversy since that will not come to an end in any event until the state litigation is concluded. Moreover, federal intervention may disrupt the state proceeding through the issuance of necessary stays or the burdensome necessity for the parties to proceed in two courts simultaneously. Federal adjudication of the matters at issue in the state proceeding may otherwise be an unwarranted and unseemly duplication of the State's own adjudicative process. For these reasons, federal courts should not ordinarily intervene by way of either declaratory or injunctive relief in cases where a state court prosecution exists that began before the federal suit was filed, and the federal court plaintiff alleges only that the state statute being applied to him is unconstitutional. Cf. Brillhart v. Excess Ins. Co., 316 U. S. 491, 494-495 (1942); Wright, supra, at 205. The interests served by federal intervention in that context are plainly outweighed by the principles of comity essential to our federal system. When no state proceeding is pending and federal intervention is therefore appropriate, [15] the federal court must decide which of the requested forms of relief should be granted. Ordinarily a declaratory judgment will be appropriate if the case-or-controversy requirements of Article III are met, if the narrow special factors warranting federal abstention are absent, and if the declaration will serve a useful purpose in resolving the dispute. See generally Zwickler v. Koota, supra ; Golden v. Zwickler, supra . This general rule carries out the unambiguous intention of Congress expressed in the Federal Declaratory Judgment Act and reflected in the committee reports, supra. The propriety of an injunction should be considered separately and in light of the traditional requirements of equity jurisprudence as applied to the protection of constitutional rights. See, e. g., Douglas v. City of Jeannette, supra ; Ex parte Young, supra ; Dombrowski v. Pfister, supra ; Cameron v. Johnson, supra ; Zwickler v. Koota, supra ; see also Hart & Wechsler, supra, at 862-864. It follows that the Court's statement today in Samuels v. Mackell , that in cases where the state criminal prosecution is pending, the same equitable principles relevant to the propriety of an injunction must be taken into consideration. . . in determining whether to issue a declaratory judgment, and that where an injunction would be impermissible . . . declaratory relief should ordinarily be denied as well, is not applicable when determining whether to issue a declaratory judgment in a case where no state criminal prosecution is pending. Its applicability is precluded by the nature of the remedy created by the Federal Declaratory Judgment Act, and by our decisions under the Act, culminating in Zwickler v. Koota, supra , which establish that the considerations governing the grant of a declaratory judgment are quite different from those governing the grant of an injunction, even though both forms of relief are discretionary and thus, in the broad sense of the term, equitable in nature. The application of the Mackell statement when no criminal prosecution is pending would run counter to our decision this Term in Wisconsin v. Constantineau, 400 U. S. 433, decided January 19, 1971, where we flatly rejected the proposition that federal courts should stay their hand until the state courts have been asked to pass on a statute clearly unconstitutional on its face. We there said: Congress could of course have routed all federal constitutional questions through the state court systems, saving to this Court the final say when it came to review of the state court judgments. But our First Congress [in the first Judiciary Act, 1 Stat. 73] resolved differently and created the federal court system and in time granted the federal courts various heads of jurisdiction, which today involve most federal constitutional rights. . . . . . . We would negate the history of the enlargement of the jurisdiction of the federal district courts, if we held the federal court should stay its hand and not decide the question before the state courts decided it. 400 U. S., at 437-438, 439. Moreover, the prerequisites for injunctive and declaratory relief are different. The availability of an alternative adequate legal remedy ordinarily bars an injunction, but does not bar declaratory relief, see Fed. Rule Civ. Proc. 57, unless the alternative remedy was expressly created by statute. See Katzenbach v. McClung, 379 U. S. 294, 295-296 (1964). Similarly, irreparable injury must be shown in a suit for an injunction, but not in an action for declaratory relief. Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). Of course, neither remedy may be afforded in the absence of a live controversy. United States v. Alaska S. S. Co., 253 U. S. 113 (1920); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); Zwickler v. Koota, supra, at 244 n. 3. However, the existence of an actual controversy and the adequacy of declaratory relief to resolve it are issues often presenting particular difficulty in declaratory judgment actions, and it is to these issues that judicial discretion in such actions is primarily directed. See Public Service Comm'n of Utah v. Wycoff Co., 344 U. S. 237 (1952). The effects of injunctive and declaratory relief in their impact on the administration of a State's criminal laws are very different. See generally Kennedy v. Mendoza-Martinez, 372 U. S. 144, 152-155 (1963). An injunction barring enforcement of a criminal statute against particular conduct immunizes that conduct from prosecution under the statute. A broad injunction against all enforcement of a statute paralyzes the State's enforcement machinery: the statute is rendered a nullity. A declaratory judgment, on the other hand, is merely a declaration of legal status and rights; it neither mandates nor prohibits state action. See Flemming v. Nestor, 363 U. S. 603, 607 (1960); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 15-16 (1964). Of course, a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear. A state statute may be declared unconstitutional in toto —that is, incapable of having constitutional applications; or it may be declared unconstitutionally vague or overbroad—that is, incapable of being constitutionally applied to the full extent of its purport. In either case, a federal declaration of unconstitutionality reflects the opinion of the federal court that the statute cannot be fully enforced. If a declaration of total unconstitutionality is affirmed by this Court, it follows that this Court stands ready to reverse any conviction under the statute. If a declaration of partial unconstitutionality is affirmed by this Court, the implication is that this Court will overturn particular applications of the statute, but that if the statute is narrowly construed by the state courts it will not be incapable of constitutional applications. Accordingly, the declaration does not necessarily bar prosecutions under the statute, as a broad injunction would. Thus, where the highest court of a State has had an opportunity to give a statute regulating expression a narrowing or clarifying construction but has failed to do so, and later a federal court declares the statute unconstitutionally vague or overbroad, it may well be open to a state prosecutor, after the federal court decision, to bring a prosecution under the statute if he reasonably believes that the defendant's conduct is not constitutionally protected and that the state courts may give the statute a construction so as to yield a constitutionally valid conviction. Even where a declaration of unconstitutionality is not reviewed by this Court, the declaration may still be able to cut down the deterrent effect of an unconstitutional state statute. The persuasive force of the court's opinion and judgment may lead state prosecutors, courts, and legislators to reconsider their respective responsibilities toward the statute. Enforcement policies or judicial construction may be changed, or the legislature may repeal the statute and start anew. Finally, the federal court judgment may have some res judicata effect, though this point is not free from difficulty and the governing rules remain to be developed with a view to the proper workings of a federal system. [16] What is clear, however, is that even though a declaratory judgment has the force and effect of a final judgment, 28 U. S. C. § 2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate, but is not contempt. The Court's opinion in Zwickler v. Koota confirmed that the considerations governing the grant of the two remedies are quite different. Zwickler v. Koota distinguished the prayer for injunction from the prayer for declaratory relief and held squarely that the District Court erred in denying declaratory relief on the ground that there was no showing . . . of `special circumstances to justify . . .' injunctive relief. 389 U. S., at 253-254. The Court expressly held that a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute. We hold that a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.  Id., at 254 (emphasis added). See also Malone v. Emmet, 278 F. Supp. 193 (MD Ala. 1967). Great Lakes Co. v. Huffman, 319 U. S. 293 (1943), is not contrary to my conclusion. That case was an action by employers for a declaration that a state unemployment compensation scheme which imposed a tax upon them was unconstitutional. Congress has always treated judicial interference with the enforcement of tax laws as a subject governed by unique considerations, and this Court has consistently enforced the congressional command that [t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U. S. C. § 1341. This Court, without relying on the particular terms of the statute, has taken its underlying policy to require that federal courts stay completely out of the field of anticipatory adjudication of tax cases so long as an adequate remedy is otherwise available. In Great Lakes we held that declaratory relief that a state tax was unconstitutional should be denied by the federal court. The basis of our ruling was that since Congress had prohibited the federal courts from enjoining state taxes where an adequate remedy was available in the state courts, declaratory relief should also be withheld. Public Service Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 253 (1952) (DOUGLAS, J., dissenting) (citation omitted). Thus Great Lakes adhered to the congressional recognition of the unique considerations presented by anticipatory tax litigation. Ibid. As the statutes barring anticipatory relief in federal tax cases, 26 U. S. C. § 7421 (1964 ed., Supp. V); 28 U. S. C. § 2201 (express exception for federal taxes), make entirely clear, the unique considerations that were the basis of Great Lakes relate not so much to considerations of federalism as to the peculiar needs of tax administration. [17] Cf. Agricultural Adjustment Act amendments of 1935, § 30, 49 Stat. 770, amending Act of May 12, 1933, 48 Stat. 31 (7 U. S. C. § 623 (a)). In contrast, there is no statutory counterpart of 28 U. S. C. § 1341 applicable to intervention in state criminal prosecutions. [18] Of course, the grant or denial of a declaratory judgment is a matter of sound judicial discretion. The standards for the exercise of this discretion have been articulated in Aetna Life Ins. Co. v. Haworth, supra ; Public Service Comm'n of Utah v. Wycoff Co., supra , and in Zwickler v. Koota, supra ; see supra, at 120-126. Where a federal court is asked to declare the validity or invalidity of a state statute, this discretion is to be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution. Ex parte Royall, 117 U. S. 241, 251 (1886). However, as the Court said in Zwickler v. Koota : Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, `. . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . . ,' Robb v. Connolly, 111 U. S. 624, 637. . . . The judge-made doctrine of abstention, first fashioned in 1941 . . . sanctions such escape only in narrowly limited `special circumstances.' Propper v. Clark, 337 U. S. 472, 492. 389 U. S., at 248. Thus, where no criminal prosecution involving the federal court parties is pending when federal jurisdiction attaches, declaratory relief determining the disputed constitutional issue will ordinarily be appropriate to carry out the purposes of the Federal Declaratory Judgment Act and to vindicate the great protections of the Constitution. I conclude that the three-judge court properly exercised its discretion in issuing a declaratory judgment upon the constitutionality of St. Bernard Parish Ordinance No. 21-60. I also agree with the District Court that the ordinance is unconstitutional on its face because mortally infected with the vice of vagueness. 304 F. Supp., at 670. Appellants do not assert the contrary. Paragraphs 1 and 2 of the judgment entered August 14, 1969, should be reversed and the judgment in all other respects should be affirmed.",The Declaratory Judgment as to the Parish Ordinance
+801,110102,1,1,"The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation . . . . 83 Stat. 852, 42 U. S. C. § 4321. [1] Congress recognized, however, that these desired goals could be incorporated into the everyday functioning of the Federal Government only with great difficulty. See S. Rep. No. 91-296, p. 19 (1969). NEPA therefore contains action-forcing procedures which will help to insure that the policies [of the Act] are implemented. Ibid. See Kleppe v. Sierra Club, 427 U. S. 390, 409 (1976). Section 102 (2) (C) of the Act sets out one of these procedures: The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall— ..... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 83 Stat. 853, 42 U. S. C. § 4332 (2) (C) (emphasis supplied). The thrust of § 102 (2) (C) is thus that environmental concerns be integrated into the very process of agency decision-making. The detailed statement it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions. [2] If environmental concerns are not interwoven into the fabric of agency planning, the action-forcing characteristics of § 102 (2) (C) would be lost. In the past, environmental factors have frequently been ignored and omitted from consideration in the early stages of planning . . . . As a result, unless the results of planning are radically revised at the policy level— and this often means the Congress—environmental enhancement opportunities may be foregone and unnecessary degradation incurred. S. Rep. No. 91-296, supra, at 20. For this reason the regulations of the Council on Environmental Quality (CEQ) require federal agencies to integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values . . . . 43 Fed. Reg. 55992 (1978) (to be codified at 40 CFR § 1501.2). [3] In 1974, respondents, three organizations with interests in the preservation of the environment, [4] brought suit in the Federal District Court for the District of Columbia alleging that § 102 (2) (C) requires federal agencies to prepare EIS's [5] to accompany their appropriation requests. Respondents named as defendants the Secretary of the Interior and the Director of the Office of Management and Budget (OMB), and alleged that proposed curtailments in the budget of the National Wildlife Refuge System (NWRS), 80 Stat. 927, 16 U. S. C. § 668dd, would cut back significantly the operations, maintenance, and staffing of units within the System. [6] Complaint ¶ 17. The System is administered by the Fish and Wildlife Service of the Department of the Interior, and consists of more than 350 refuges encompassing more than 30 million acres in 49 States. The primary purpose of the NWRS is to provide a national program for the restoration, preservation, development and management of wildlife and wildlands habitat; for the protection and preservation of endangered or threatened species and their habitat; and for the management of wildlife and wildlands to obtain the maximum benefits from these resources. 50 CFR § 25.11 (b) (1978). [7] Respondents alleged that the proposed budget curtailments would significantly affect the quality of the human environment, [8] and hence should have been accompanied by an EIS prepared both by the Fish and Wildlife Service and by OMB. [9] The District Court agreed with respondents' contentions. Relying on provisions of the then applicable CEQ guidelines, [10] and on the Department of the Interior's Manual, [11] the District Court held that appropriation requests are `proposals for legislation' within the meaning of NEPA, and also that annual proposals for financing the Refuge System are major Federal actions which clearly have a significant effect on the environment. Sierra Club v. Morton, 395 F. Supp. 1187, 1188, 1189 (1975). The District Court granted respondents' motion for summary judgment, and provided declaratory and injunctive relief. It stated that the Department of the Interior and OMB were required to prepare, consider, and disseminate environmental impact statements on annual proposals for financing the National Wildlife Refuge System. [12] App. to Pet. for Cert. 61a. The Court of Appeals for the District of Columbia Circuit modified the holding of the District Court. The Court of Appeals was apprehensive because [a] rule requiring preparation of an EIS on the annual budget request for virtually every ongoing program would trivialize NEPA. 189 U. S. App. D. C. 117, 125, 581 F. 2d 895, 903 (1978). Therefore, the Court of Appeals concluded that § 102 (2) (C) required the preparation of an EIS only when an appropriation request accompanies a `proposal' for taking new action which significantly changes the status quo, or when the request for budget approval and appropriations is one that ushers in a considered programmatic course following a programmatic review. 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. Section 102 (2) (C) would thus have no application to a routine request for budget approval and appropriations for continuance and management of an ongoing program. 189 U. S. App. D. C., at 125, 581 F. 2d, at 903. The Court of Appeals held, however, that there was no need for injunctive relief because the Fish and Wildlife Service had completed during the pendency of the appeal a Programmatic EIS that adequately evaluated the environmental consequences for the NWRS of various budgetary alternatives. [13] Id., at 126, 581 F. 2d, at 904. See United States Fish and Wildlife Service, Final Environmental Statement: Operation of the National Wildlife Refuge System (Nov. 1976). [14] We granted certiorari, 439 U. S. 1065 (1979), and we now reverse.",NEPA sets forth its purposes in bold strokes:
+802,106548,1,1,"The history of federal habeas corpus jurisdiction, I believe, leaves no doubt that today's decision constitutes a square rejection of long-accepted principles governing the nature and scope of the Great Writ. [1] Habeas corpus ad subjiciendum is today, as it has always been, a fundamental safeguard against unlawful custody. The importance of this prerogative writ, requiring the body of a person restrained of liberty to be brought before the court so that the lawfulness of the restraint may be determined, was recognized in the Constitution, [2] and the first Judiciary Act gave the federal courts authority to issue the writ agreeable to the principles and usages of law. [3] Although the wording of earlier statutory provisions has been changed, the basic question before the court to which the writ is addressed has always been the same: in the language of the present statute, on the books since 1867, is the detention complained of in violation of the Constitution or laws or treaties of the United States? Supra, p. 448. Detention can occur in many contexts, and in each the scope of judicial inquiry will differ. Thus a child may be detained by a parent, an alien excluded by an immigration official, or a citizen arrested by a policeman and held without being brought to a magistrate. But the custody with which we are here concerned is that resulting from a judgment of criminal conviction and sentence by a court of law. And the question before us is the circumstances under which that custody may be held to be inconsistent with the commands of the Federal Constitution. What does history show? 1. Pre-1915 period. —The formative stage of the development of habeas corpus jurisdiction may be said to have ended in 1915, the year in which Frank v. Mangum, 237 U. S. 309, was decided. During this period the federal courts, on applications for habeas corpus complaining of detention pursuant to a judgment of conviction and sentence, purported to examine only the jurisdiction of the sentencing tribunal. In the leading case of Ex parte Watkins, 3 Pet. 193, the Court stated: An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. 3 Pet., at 203. Many subsequent decisions, dealing with both state and federal prisoners, and involving both original applications to this Court for habeas corpus and review of lower court decisions, reaffirmed the limitation of the writ to consideration of the sentencing court's jurisdiction over the person of the defendant and the subject matter of the suit. E. g., Ex parte Parks, 93 U. S. 18; Andrews v. Swartz, 156 U. S. 272; In re Belt, 159 U. S. 95; In re Moran, 203 U. S. 96. The concept of jurisdiction, however, was subjected to considerable strain during this period, and the strain was not lessened by the fact that until the latter part of the last century, federal criminal convictions were not generally reviewable by the Supreme Court. [4] The expansion of the definition of jurisdiction occurred primarily in two classes of cases: (1) those in which the conviction was for violation of an allegedly unconstitutional statute, and (2) those in which the Court viewed the detention as based on some claimed illegality in the sentence imposed, as distinguished from the judgment of conviction. An example of the former is Ex parte Siebold, 100 U. S. 371, in which the Court considered on its merits the claim that the acts under which the indictments were found were unconstitutional, reasoning that [a]n unconstitutional law is void, and is as no law, and therefore if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. 100 U. S., at 376-377. [5] An example of the latter is Ex parte Lange, 18 Wall. 163, in which this Court held that if a valid sentence had been carried out, and if the governing statute permitted only one sentence, the sentencing judge lacked jurisdiction to impose further punishment: [W]hen the prisoner . . . by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone. 18 Wall., at 176. [6] It was also during this period that Congress, in 1867, first made habeas corpus available by statute to prisoners held under state authority. Act of February 5, 1867, c. 28, § 1, 14 Stat. 385. In this 1867 Act the Court now seems to find justification for today's decision, relying on the statement of one of its proponents that the bill was coextensive with all the powers that can be conferred on the courts and judges of the United States. Cong. Globe, 39th Cong., 1st Sess. 4151. But neither the statute itself, its legislative history, nor its subsequent interpretation lends any support to the view that habeas corpus jurisdiction since 1867 has been exercisable whether or not the state detention complained of rested on decision of a federal question. First, there is nothing in the language of the Act— which spoke of the availability of the writ to prisoners restrained of . . . liberty in violation of the constitution. . .—to suggest that there was any change in the nature of the writ as applied to one held pursuant to a judgment of conviction. The language was that typically employed in habeas corpus cases, and, as we have seen, it was not believed that a person so held was restrained in violation of law if the sentencing court had personal and subject matter jurisdiction. Rather, the change accomplished by the language of the Act related to the classes of prisoners (in particular, state as well as federal) for whom the writ would be available. Second, what little legislative history there is does not suggest any change in the nature of the writ. The extremely brief debates indicated only a lack of understanding as to what the Act would accomplish, coupled with an effort by the proponents to make it clear that the purpose was to extend the availability of the writ to persons not then covered; there was no indication of any intent to alter its substantive scope. [7] Thus, less than 20 years after enactment, a congressional committee could say of the 1867 Act that it was not contemplated by its framers or . . . properly . . . construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges . . . . [8] Third, cases decided under the Act during this period made it clear that the Court did not regard the Act as changing the character of the writ. In considering the lawfulness of the detention of state prisoners, the Court continued to confine itself to questions it regarded as jurisdictional. See, e. g., In re Rahrer, 140 U. S. 545; Harkrader v. Wadley, 172 U. S. 148; Pettibone v. Nichols, 203 U. S. 192. And the Court repeatedly held that habeas corpus was not available to a state prisoner to consider errors, even constitutional errors, that did not go to the jurisdiction of the sentencing court. E. g., In re Wood, 140 U. S. 278; Andrews v. Swartz, 156 U. S. 272; Bergemann v. Backer, 157 U. S. 655. At the same time, in dealing with applications by state prisoners the Court developed the doctrine of exhaustion of state remedies, a doctrine now embodied in 28 U. S. C. § 2254. In Ex parte Royall, 117 U. S. 241, the prisoner had brought federal habeas corpus seeking release from his detention pending a state prosecution, and alleging that the statute under which he was to be tried was void under the Contract Clause. The power of the federal court to act in this case, if the allegations could be established, was clear since under accepted principles the State would have lacked jurisdiction to detain the prisoner. But the Court observed that the question of constitutionality would be open to the prisoner at his state trial and, absent any showing of urgency, considerations of comity counseled the exercise of discretion to withhold the writ at this early stage. In subsequent decisions, the Court continued to insist that state remedies be exhausted, even when the applicant alleged a lack of jurisdiction in state authorities which, if true, would have enabled the federal court to act on the application immediately. E. g., Ex parte Fonda, 117 U. S. 516; Cook v. Hart, 146 U. S. 183; New York v. Eno, 155 U. S. 89. As stated in Cook v. Hart, 146 U. S., at 195, The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits . . . . Should . . . [his] rights be denied, his remedy in the Federal court will remain unimpaired. (Emphasis added.) The question whether the Constitution deprived the State of jurisdiction, in other words, would remain open under traditional doctrine, on collateral as well as direct attack. There can be no doubt of the limited scope of habeas corpus during this formative period, and of the consistent efforts to confine the writ to questions of jurisdiction. But the cardinal point for present purposes is that in no case was it held, or even suggested, that habeas corpus would be available to consider any claims by a prisoner held pursuant to a state court judgment whose validity rested on an adequate nonfederal ground. Indeed, so long as the writ was confined to claims by state prisoners that the State was constitutionally precluded from exercising its jurisdiction in the particular case, it is difficult to conceive of a decision to detain in such cases resting on an adequate state ground. Even when the concept of jurisdiction was expanded, as in Ex parte Siebold, 100 U. S. 371, and other decisions, the matters open on habeas were still limited to those which were believed to have deprived the sentencing court of all competence to act, and which therefore could always be raised on collateral attack. It is for this reason that the Royall line of exhaustion cases, relied on so heavily by the Court, has no real bearing on the problem before us. For those cases dealt only with the discretion of the court to take action which, if the allegations of lack of state jurisdiction were upheld, it would have had power to take either before or after state consideration. The issue here, on the other hand, is one of power, and wholly different considerations are involved. In those few instances during this early period when the Court discussed questions it did not regard as jurisdictional, it occasionally went so far as to suggest that a constitutional claim could not be raised on habeas even if the state decision to detain rested on an inadequate state ground—that the only avenue of relief was direct review. Thus in Andrews v. Swartz, 156 U. S. 272, where the claim made on federal habeas was the systematic exclusion of Negroes from a state jury, the Court held it a sufficient answer to this contention that the state court had jurisdiction both of the offence charged and of the accused. Id., at 276. It continued: Even if it be assumed that the state court improperly denied to the accused . . . the right to show by proof that persons of his race were arbitrarily excluded. . . it would not follow that the court lost jurisdiction of the case within the meaning of the well-established rule that a prisoner under conviction and sentence of another court will not be discharged on habeas corpus unless the court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void. Ibid. 2. 1915-1953 period. —The next stage of development may be described as beginning in 1915 with Frank v. Mangum, 237 U. S. 309, and ending in 1953 with Brown v. Allen, 344 U. S. 443. In Frank, the prisoner had claimed before the state courts that the proceedings in which he had been convicted for murder had been dominated by a mob, and the State Supreme Court, after consideration not only of the record but of extensive affidavits, had concluded that mob domination had not been established. [9] Frank then sought federal habeas, and this Court affirmed the denial of relief. But in doing so the Court recognized that Frank's allegation of mob domination raised a constitutional question which he was entitled to have considered by a competent tribunal uncoerced by popular pressures. Such corrective process had been afforded by the State Supreme Court, however, and since Frank had received notice, and a hearing, or an opportunity to be heard on his constitutional claims (237 U. S., at 326), his detention was not in violation of federal law and habeas corpus would not lie. It is clear that a new dimension was added to habeas corpus in this case, for in addition to questions previously thought of as jurisdictional, the federal courts were now to consider whether the applicant had been given an adequate opportunity to raise his constitutional claims before the state courts. And if no such opportunity had been afforded in the state courts, the federal claim would be heard on its merits. The Court thus rejected the views expressed in Andrews v. Swartz, supra, p. 455, by holding, in effect, that a constitutional claim could be heard on habeas if the State's refusal to give it proper consideration rested on an inadequate state ground. But habeas would not lie to reconsider constitutional questions that had been fairly determined. And a fortiori it would not lie to consider a question when the state court's refusal to do so rested on an adequate and independent state ground. In this connection, it is important to note the section of the opinion relating to Frank's separate constitutional claim that his involuntary absence from the courtroom at the time the verdict was rendered invalidated the conviction. Frank had failed to raise this point in his motion for a new trial; the state court held that it had been waived; and this Court decided that the state rule barring assertion of the point after failure to raise it in a motion for new trial was reasonable and did not violate due process. [10] Clearly, the significance of the Court's ruling was that as to this constitutional claim, whatever its merits if the point had been properly preserved, there was an adequate nonfederal ground for the detention. In no case prior to Brown v. Allen , I submit, was there any substantial modification of the concepts articulated in the Frank decision. In Moore v. Dempsey, 261 U. S. 86, this Court did require a hearing on federal habeas of a claim similar to that in Frank, of mob domination of the trial, even though the state appellate court had purported to pass on the claim, but only by refusing to assume that the trial was an empty ceremony. [11] The decision of this Court is sufficiently ambiguous that it seems to have meant all things to all men. [12] But I suggest that the decision cannot be taken to have overruled Frank; it did not purport to do so, and indeed it was joined by two Justices who had joined in the Frank opinion. Rather, what the Court appears to have held was that the state appellate court's perfunctory treatment of the question of mob domination, amounting to nothing more than reliance on the presumptive validity of the trial, was not in fact acceptable corrective process and federal habeas would therefore lie to consider the merits of the claim. Until today, the Court has consistently so interpreted the opinion, as in Ex parte Hawk, 321 U. S. 114, 118, where Moore was cited as an example of a case in which the remedy afforded by state law proves in practice unavailable or seriously inadequate. See also Jennings v. Illinois, 342 U. S. 104, 111. Certainly, there is no basis in the Moore opinion, whatever it may fairly be taken to mean, for concluding that the Court required consideration on federal habeas of a question which the state court had had an adequate state ground for refusing to consider. The claim of mob domination was considered, although apparently inadequately, by the state court, and it was only on this premise that the claim was required to be heard on habeas. Subsequent decisions involving state prisoners continued to indicate that the controlling question on federal habeas—apart from matters going to lack of state jurisdiction in light of federal law—was whether or not the State had afforded adequate opportunity to raise the federal claim. If not, the federal claim could be considered on its merits. See, e. g., Mooney v. Holohan, 294 U. S. 103; White v. Ragen, 324 U. S. 760; Woods v. Nierstheimer, 328 U. S. 211; cf. Jennings v. Illinois, 342 U. S. 104. [13] A development paralleling that in Frank v. Mangum took place during this period with regard to federal prisoners. The writ remained unavailable to consider questions that were or could have been raised in the original proceedings, or on direct appeal, see Sunal v. Large, 332 U. S. 174, but it was employed to permit consideration of constitutional questions that could not otherwise have been adequately presented to the courts. E. g., Johnson v. Zerbst, 304 U. S. 458; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101. This limited scope of habeas corpus, and its statutory substitute 28 U. S. C. § 2255, in relation to federal prisoners may have survived Brown v. Allen and may still survive today. See, e. g., Franano v. United States, 303 F. 2d 470, cert. denied, 371 U. S. 865. Compare Jordan v. United States, 352 U. S. 904. To recapitulate, then, prior to Brown v. Allen , habeas corpus would not lie for a prisoner who was in custody pursuant to a state judgment of conviction by a court of competent jurisdiction if he had been given an adequate opportunity to obtain full and fair consideration of his federal claim in the state courts. Clearly, under this approach, a detention was not in violation of federal law if the validity of the state conviction on which that detention was based rested on an adequate nonfederal ground. 3. Post-1953, Brown v. Allen , period. —In 1953, this Court rendered its landmark decisions in Brown v. Allen, 344 U. S. 443, and Daniels v. Allen, reported therewith, 344 U. S., at 482-487. [14] Both cases involved applications for federal habeas corpus by prisoners who were awaiting execution pursuant to state convictions. In both cases, the constitutional contentions made were that the trial court had erred in ruling confessions admissible and in overruling motions to quash the indictment on the basis of alleged discrimination in the selection of jurors. In Brown, these contentions had been presented to the highest court of the State, on direct appeal from the conviction, and had been rejected by that court on the merits, State v. Brown, 233 N. C. 202, 63 S. E. 2d 99, after which this Court had denied certiorari, 341 U. S. 943. At this point, the Court held, Brown was entitled to full reconsideration of these constitutional claims, with a hearing if appropriate, in an application to a Federal District Court for habeas corpus. It is manifest that this decision substantially expanded the scope of inquiry on an application for federal habeas corpus. [15] Frank v. Mangum and Moore v. Dempsey had denied that the federal courts in habeas corpus sat to determine whether errors of law, even constitutional law, had been made in the original trial and appellate proceedings. Under the decision in Brown, if a petitioner could show that the validity of a state decision to detain rested on a determination of a constitutional claim, and if he alleged that determination to be erroneous, the federal court had the right and the duty to satisfy itself of the correctness of the state decision. But what if the validity of the state decision to detain rested not on the determination of a federal claim but rather on an adequate nonfederal ground which would have barred direct review by this Court? That was the question in Daniels. The attorney for the petitioners in that case had failed to mail the appeal papers on the last day for filing, and although he delivered them by hand the next day, the State Supreme Court refused to entertain the appeal, ruling that it had not been filed on time. This ruling, this Court held, barred federal habeas corpus consideration of the claims that the state appellate court had refused to consider. Language in Mr. Justice Reed's opinion for the Court appeared to support the result alternatively in terms of waiver, [16] failure to exhaust state remedies, [17] and the existence of an adequate state ground. [18] But while the explanation may have been ambiguous, the result was clear: habeas corpus would not lie for a prisoner who was detained pursuant to a state judgment which, in the view of the majority in Daniels, rested on a reasonable application of the State's own procedural requirements. Moreover, the issue was plainly viewed as one of authority, not of discretion. 344 U. S., at 485. I do not pause to reconsider here the question whether the state ground in Daniels was an adequate one; persuasive arguments can be made that it was not. The important point for present purposes is that the approach in Daniels was wholly consistent with established principles in the field of habeas corpus jurisdiction. The problem, however, had been brought into sharper focus by the result in Brown. Once it is made clear that the questions open on federal habeas extend to such matters as the admissibility of confessions, or of other evidence, the possibility that inquiry may be precluded by the existence of a state ground adequate to support the judgment is substantially increased. Issues similar to those in Daniels next came before the Court in Irvin v. Dowd, 359 U. S. 394. In that case, the state court's decision affirming Irvin's conviction for murder was ambiguous and it could have been interpreted to rest on a state ground even though Irvin's federal constitutional claims were considered. Irvin v. State, 236 Ind. 384, 139 N. E. 2d 898; see also the dissenting opinion of this writer in Irvin v. Dowd, supra, 412. This Court, in reversing a dismissal of an application for federal habeas corpus, concluded that the state court decision had rested on determination of Irvin's federal claims, and held that those claims could therefore be considered on federal habeas. The majority appeared to approach the problem as one of exhaustion, [19] but the basic determination was that the state court judgment, pursuant to which Irvin was detained, did not rest on an application of the State's procedural rules. This brings us to the present case. There can, I think, be no doubt that today's holding—that federal habeas will lie despite the existence of an adequate and independent nonfederal ground for the judgment pursuant to which the applicant is detained—is wholly unprecedented. Indeed, it constitutes a direct rejection of authority that is squarely to the contrary. That the result now reached is a novel one does not, of course, mean that it is necessarily incorrect or unwise. But a decision which finds virtually no support in more than a century of this Court's experience should certainly be subject to the most careful scrutiny.",departure from history.
+803,106548,1,2,"The true significance of today's decision can perhaps best be laid bare in terms of a hypothetical case presenting questions of the powers of this Court on direct review, and of a Federal District Court on habeas corpus. 1. On direct review. —Assume that a man is indicted, and held for trial in a state court, by a grand jury from which members of his race have been systematically excluded. Assume further that the State requires any objection to the composition of the grand jury to be raised prior to the verdict, that no such objection is made, and that the defendant seeks to raise the point for the first time on appeal from his conviction. If the state appellate court refuses to consider the claim because it was raised too late, and if certiorari is sought and granted, the initial question before this Court will be whether there was an adequate state ground for the judgment below. If the petitioner was represented by counsel not shown to be incompetent, and if the necessary information to make the objection is not shown to have been unavailable at the time of trial, it is certain that the judgment of conviction will stand, despite the fact the indictment was obtained in violation of the petitioner's constitutional rights. [20] What is the reason for the rule that an adequate and independent state ground of decision bars Supreme Court review of that decision—a rule which, of course, is as applicable to procedural as to substantive grounds? In Murdock v. Memphis, 20 Wall. 590, 632-636, it was concluded that under the governing statute (i) the Court did not have jurisdiction, on review of a state decision, to examine and decide questions not of a Federal character, id., at 633, and (ii) an erroneous decision of a federal question by a state court could not warrant reversal if there were: any other matter or issue adjudged by the State court, which is sufficiently broad to maintain the judgment of that court, notwithstanding the error in deciding the issue raised by the Federal question. Id., at 636. But as the Court in Murdock so strongly implied, and as emphasized in subsequent decisions, the adequate state ground rule has roots far deeper than the statutes governing our jurisdiction, and rests on fundamentals that touch this Court's habeas corpus jurisdiction equally with its direct reviewing power. An examination of the alternatives that might conceivably be followed will, I submit, confirm that the rule is one of constitutional dimensions going to the heart of the division of judicial powers in a federal system. One alternative to the present rule would be for the Court to review and decide any federal questions in the case, even if the determination of nonfederal questions were adequate to sustain the judgment below, and then to send the case back to the state court for further consideration. But it needs no extended analysis to demonstrate that such action would exceed this Court's powers under Article III. As stated in Herb v. Pitcairn, 324 U. S. 117, 126: [O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion. Another alternative, which would avoid the problem of advisory opinions, would be to take the entire case and to review on the merits the state court's decision of every question in it. For example, in our hypothetical case the Court might consider on its merits the question whether the state court correctly ruled that under state law objections to the composition of the grand jury must be made prior to the verdict. To a limited extent, of course, this procedural ruling of the state court raises federal as well as state questions. It is clear that a State may not preclude Supreme Court review of federal claims by discriminating against or evading the assertion of a federal right, and indeed that state procedural grounds for refusal to consider a federal claim must rest on a fair or substantial basis. [21] Occasionally this means that a state procedural rule which may properly preclude the raising of state claims in a state court cannot thwart review of federal claims in this Court. [22] These principles are inherent in the concept that a state ground, to be of sufficient breadth to support the judgment, must be both adequate and independent. But determination of the adequacy and independence of the state ground, I submit, marks the constitutional limit of our power in this sphere. The reason why this is so was perhaps most articulately expressed in a different but closely related context by Mr. Justice Field in his opinion in Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 401. He stated, in a passage quoted with approval by the Court in the historic decision in Erie R. Co. v. Tompkins, 304 U. S. 64, 78-79: [T]he Constitution of the United States . . . recognizes and preserves the autonomy and independence of the States—independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence. For this Court to go beyond the adequacy of the state ground and to review and determine the correctness of that ground on its merits would, in our hypothetical case, be to assume full control over a State's procedures for the administration of its own criminal justice. This is and must be beyond our power if the federal system is to exist in substance as well as form. The right of the State to regulate its own procedures governing the conduct of litigants in its courts, and its interest in supervision of those procedures, stand on the same constitutional plane as its right and interest in framing substantive laws governing other aspects of the conduct of those within its borders. There is still a third possible course this Court might follow if it were to reject the adequate state ground rule. The Act of 1867, which in § 1 extended the habeas corpus jurisdiction to state prisoners detained in violation of federal law, in § 2 gave the Supreme Court the authority, in cases coming from the state courts, to order execution directly without remanding the case. 14 Stat. 385, 386-387. That authority, which has been exercised at least once, [23] remained unimpaired through the modifications of appellate and certiorari jurisdiction, [24] and exists today. [25] Acting pursuant to that authority in our hypothetical case, this Court might grant certiorari, ignore the state ground of decision, decide the federal question and, instead of merely remanding the case, issue a writ requiring the petitioner's release from custody. By this simple device, the Court, it might be argued, would avoid problems of advisory opinions while at the same time refraining from consideration of questions of state law. But apart from the unseemliness of such a disposition, it is apparent that what the Court would actually be doing would be to decide the state law question sub silentio and to reverse the state court judgment on that question. For if the petitioner is detained pursuant to the judgment, and his detention is to be terminated, that must mean that the state ground is not adequate to support the only purpose for which the judgment was rendered. The judgment, in other words, becomes a nullity. Moreover, the future effect of such a disposition is precisely the same as a reversal on the merits of the question of state law. If noncompliance with a state rule requiring a particular constitutional claim to be raised before verdict does not preclude consideration of the claim by this Court, then the rule is invalid in every significant sense, since no judgment based on its application can ever be effective. In short, the constitutional infirmities of such a disposition by this Court are the same as those inherent in review of the state question on its merits. The vice, however, is greater because the Court would, in actuality, be invalidating a state rule without even purporting to consider it. 2. On habeas corpus. —The adequate state ground doctrine thus finds its source in basic constitutional principles, and the question before us is whether this is as true in a collateral attack in habeas corpus as on direct review. Assume, then, that after dismissal of the writ of certiorari in our hypothetical case, the prisoner seeks habeas corpus in a Federal District Court, again complaining of the composition of the grand jury that indicted him. Is that federal court constitutionally more free than the Supreme Court on direct review to ignore the adequate state ground, proceed to the federal question, and order the prisoner's release? The answer must be that it is not. Of course, as the majority states, a judgment is not a jurisdictional prerequisite to a habeas corpus application, ante, p. 430, but that is wholly irrelevant. The point is that if the applicant is detained pursuant to a judgment, termination of the detention necessarily nullifies the judgment. The fact that a District Court on habeas has fewer choices than the Supreme Court, since it can only act on the body of the prisoner, does not alter the significance of the exercise of its power. In habeas as on direct review, ordering the prisoner's release invalidates the judgment of conviction and renders ineffective the state rule relied upon to sustain that judgment. Try as the majority does to turn habeas corpus into a roving commission of inquiry into every possible invasion of the applicant's civil rights that may ever have occurred, it cannot divorce the writ from a judgment of conviction if that judgment is the basis of the detention. Thus in the present case if this Court had granted certiorari to review the State's denial of coram nobis, had considered the coerced confession claim, and had ordered Noia's release, the necessary effects of that disposition would have been (1) to set aside the conviction and (2) to invalidate application of the New York rule requiring the claim to be raised on direct appeal in order to be preserved. It is, I think, beyond dispute that the Court does exactly the same thing by affirming the decision below in this case. In doing so, the Court exceeds its constitutional power if in fact the state ground relied upon to sustain the judgment of conviction is an adequate one. See pp. 472-476, infra. The effect of the approach adopted by the Court is, indeed, to do away with the adequate state ground rule entirely in every state case, involving a federal question, in which detention follows from a judgment. The majority seems to recognize at least some of the consequences of its decision when it attempts to fill the void created by abolition of the adequate state ground rule in state criminal cases. But the substitute it has fashioned—that of conscious waiver or deliberate by-passing of state procedures—is, as I shall next try to show, wholly unsatisfactory.",constitutional barrier.
+804,106548,1,3,"Apparently on the basis of a doctrine analogous to that of unclean hands, the Court states that a federal judge, in his discretion, may deny relief on habeas corpus to one who has understandingly and knowingly refused to avail himself of state procedures. But such a test, if it is meant to constitute a limitation on interference with state administration of criminal justice, falls far short of the mark. In fact, as explained and applied in this case, it amounts to no limitation at all. First, the Court explains that the test is one calling for the exercise of the district judge's discretion, that the judge may, in other words, grant relief even when a conscious waiver has been shown. Thus the Court does not merely tell the States that, if they wish to detain those whom they convict, they must revamp their entire systems of criminal procedures so that no forfeiture may be imposed in the absence of deliberate choice; the States are also warned that even a deliberate, explicit, intelligent choice not to assert a constitutional right may not preclude its assertion on federal habeas. Second, the Court states (as it must if it is to adhere to its definition) that [a] choice made by counsel not participated in by the petitioner does not automatically bar relief. Ante, p. 439. It is true that there are cases in which the adequacy of the state ground necessarily turns on the question whether the defendant himself expressly and intelligently waived a constitutional right. Foremost among these are the cases involving right to counsel, for the Court has made it clear that this right cannot be foregone without deliberate choice by the defendant. See Johnson v. Zerbst, 304 U. S. 458; Carnley v. Cochran, 369 U. S. 506. But to carry this principle over in full force to cases in which a defendant is represented by counsel not shown to be incompetent is to undermine the entire representational system. We have manifested an ever-increasing awareness of the fundamental importance of representation by counsel, see Gideon v. Wainwright, ante, p. 335, and yet today the Court suggests that the State may no more have a rule of forfeiture for one who is competently represented than for one who is not. The effect on state procedural rules may be disastrous. Third, when it comes to apply the waiver test in this case, the Court then in effect reads its own creation out of existence. Recognizing that Noia himself decided not to appeal, and that he apparently made this choice after consultation with counsel, the Court states that his decision was nevertheless not a waiver. Since a new trial might have resulted in a death sentence, Noia was, in the majority's view, confronted with a grisly choice, and he quite properly declined to play Russian roulette by appealing his conviction. Ante, pp. 439-440. Does the Court mean by these colorful phrases that it would be unconstitutional for the State to impose a heavier sentence in a second trial for the same offense? Apparently not, since the majority assures us that there may be some cases in which a risk of a heavier sentence must be run. What distinguishes this case, we are told, is that the risk of the death sentence on a new trial was substantial in view of the trial judge's statement that Noia's past record and his involvement in the crime almost led the judge to disregard the jury's recommendation against a death sentence. What the Court seems to be saying in this exercise in fine distinctions is that no waiver of a right can be effective if some adverse consequence might reasonably be expected to follow from exercise of that right. Under this approach, of course, there could never be a binding waiver, since only an incompetent would give up a right without any good reason, and an incompetent cannot make an intelligent waiver. The Court wholly ignores the question whether the choice made by the defendant is one that the State could constitutionally require. Looked at from any angle, the concept of waiver which the Court has created must be found wanting. Of gravest importance, it carries this Court into a sphere in which it has no proper place in the context of the federal system. The true limitations on our constitutional power are those inherent in the rule requiring that a judgment resting on an adequate state ground must be respected.",attempted palliatives.
+805,106548,1,4,"It is the adequacy, or fairness, of the state ground that should be the controlling question in this case. [26] This controlling question the Court does not discuss. New York asserts that a claim of the kind involved here must be raised on timely appeal if it is to be preserved, and contends that in permitting an appeal it has provided a reasonable opportunity for the claim to be made. The collateral post-conviction writ of coram nobis, the State has said, remains a remedy only for the calling up of facts unknown at the time of the judgment. See People v. Noia, decided sub nom. People v. Caminito, 3 N. Y. 2d 596, 601, 148 N. E. 2d 139, 143. In other words, the State claims that it may constitutionally detain a man pursuant to a judgment of conviction, regardless of any error that may have led to that conviction, if the relevant facts were reasonably available and an appeal was not taken. Under the circumstances here—particularly the fact that Noia was represented by counsel whose competence is not challenged—is this a reasonable ground for barring collateral assertion of the federal claim? Certainly the State has a vital interest in requiring that appeals be taken on the basis of facts known at the time, since the first assertion of a claim many years later might otherwise require release long after it was feasible to hold a new trial. And although in Daniels v. Allen it might have been argued that the State's refusal to entertain an appeal actually received on time amounted to an evasion of the federal claim, no such argument can be made here, since no appeal was ever sought. Moreover, we should be slow to reject—as an invalid barrier to the raising of a federal right—a state determination that one forum rather than another must be resorted to for the assertion of that right. A far more rigid restriction of federal forums was upheld in Yakus v. United States, 321 U. S. 414. In that case, the Court sustained a federal statute permitting an attack on the validity of an administrative price regulation to be made only on timely review of the administrative order, and precluding the defense of invalidity in a later criminal prosecution for violation of the regulation. What the Court there said bears repetition here: No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. 321 U. S., at 444. But is there some special circumstance here that operates to invalidate the nonfederal ground? Certainly it cannot be that the claim of a coerced confession is of such a nature that a State is constitutionally compelled to permit its assertion at any time even if it could have been, but was not, raised on appeal. Many federal decisions have held that a federal prisoner held pursuant to a federal conviction may not assert such a claim in collateral proceedings when it was not, but could have been, asserted on appeal. E. g., Davis v. United States, 214 F. 2d 594, cert. denied, 353 U. S. 960; Smith v. United States, 88 U. S. App. D. C. 80, 187 F. 2d 192, cert. denied, 341 U. S. 927; see Hodges v. United States, 108 U. S. App. D. C. 375, 282 F. 2d 858, cert. dismissed, 368 U. S. 139. Is it then a basis for invalidating the nonfederal ground that Noia's two codefendants are today free from custody on facts which Noia says are identical to those in his case? Does the nonfederal ground fall when the federal claim appears to have obvious merit? There may be some question whether the facts in Noia's case and those in Bonino's and Caminito's are identical, [27] but assuming that they are, I think it evident that the nonfederal ground must still stand. Again, there is highly relevant precedent dealing with federal prisoners. In Sunal v. Large, 332 U. S. 174, Sunal and Kulick had been prosecuted for violation of the Selective Service Act, and both had sought to raise a defense the court had refused to consider. Both were convicted and sentenced to imprisonment but took no appeal, quite evidently because such an appeal would have been to no avail under the existing state of the law. Subsequently, in another case, this Court held on comparable facts that the defense in question must be permitted. Estep v. United States, 327 U. S. 114. Sunal and Kulick then sought relief on habeas corpus, and this relief was denied. The opinion of the Court observed that there had been no barrier to the perfection of appeals by these prisoners and no facts which were not then known. That an appeal may have appeared futile at the time (indeed, far more futile than was the case here) was held not a sufficient basis for collateral relief. The present case, I submit, would be less troublesome than Sunal even had it involved a federal prisoner. Surely, the state ground is not rendered inadequate because on a new trial for the same offense, Noia might have received the death sentence. The State is well within constitutional limits in permitting such a sentence to be imposed. Of particular relevance here is the decision in Larson v. United States, 275 F. 2d 673. Two criminal defendants had been tried and sentenced to imprisonment by a federal court. One defendant, Juelich, had moved for a continuance or a change of venue, on the ground of community prejudice, and his motion had been denied. Both defendants were convicted; Juelich appealed from his conviction; and the Court of Appeals reversed, Juelich v. United States, 214 F. 2d 950, holding that the constitutional requirement of a fair trial had been violated by the refusal to grant a change of venue or a continuance. Larson, the other defendant, had chosen not to appeal, apparently because he feared that the death sentence might be imposed in a new trial, but after his codefendant's success, he sought collateral relief under § 2255. That relief was denied by the District Court, and the Court of Appeals affirmed, stating: We do not say . . . that in every instance, before resort can be had to Section 2255 there must be an appeal. We say only that, in the circumstances of this case, Larson, taking a calculated risk, made a free choice not to jeopardize his life, and he is bound by that decision. . . . Whatever errors there were in his trial were known to Larson and to his counsel —for the same errors formed the basis for Juelich's appeal. Manifest justice to an accused person requires only that he have an opportunity to correct errors that may have led to an unfair trial. The orderly administration of justice requires that even a criminal case some day come to an end. 275 F. 2d, at 679-680. This Court denied certiorari. 363 U. S. 849. Decisions such as Sunal and Larson are reasoned expressions by the federal judiciary of its views on the fair and proper administration of federal criminal justice. We cannot turn around and tell the State of New York that it is constitutionally prohibited from being governed by the same considerations. I recognize that Noia's predicament may well be thought one that strongly calls for correction. But the proper course to that end lies with the New York Governor's powers of executive clemency, not with the federal courts. [28] Since Noia is detained pursuant to a state judgment whose validity rests on an adequate and independent state ground, the judgment below should be reversed.",adequacy of the state ground here involved.
+806,106967,1,2,"Appellant was convicted of violating a Louisiana disturbing the peace statute, which provides: Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby . . . crowds or congregates with others . . . in or upon . . . a public street or public highway, or upon a public sidewalk, or any other public place or building . . . and who fails or refuses to disperse and move on . . . when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person . . . shall be guilty of disturbing the peace. La. Rev. Stat. § 14:103.1 (Cum. Supp. 1962). It is clear to us that on the facts of this case, which are strikingly similar to those present in Edwards v. South Carolina, 372 U. S. 229, and Fields v. South Carolina, 375 U. S. 44, Louisiana infringed appellant's rights of free speech and free assembly by convicting him under this statute. As in Edwards, we do not find it necessary to pass upon appellant's contention that there was a complete absence of evidence so that his conviction deprived him of liberty without due process of law. Cf. Thompson v. Louisville, 362 U. S. 199. We hold that Louisiana may not constitutionally punish appellant under this statute for engaging in the type of conduct which this record reveals, and also that the statute as authoritatively interpreted by the Louisiana Supreme Court is unconstitutionally broad in scope. The Louisiana courts have held that appellant's conduct constituted a breach of the peace under state law, and, as in Edwards, we may accept their decision as binding upon us to that extent, Edwards v. South Carolina, supra, at 235; but our independent examination of the record, which we are required to make, [8] shows no conduct which the State had a right to prohibit as a breach of the peace. Appellant led a group of young college students who wished to protest segregation and discrimination against Negroes and the arrest of 23 fellow students. They assembled peaceably at the State Capitol building and marched to the courthouse where they sang, prayed and listened to a speech. A reading of the record reveals agreement on the part of the State's witnesses that Cox had the demonstration very well controlled, and until the end of Cox's speech, the group was perfectly orderly. Sheriff Clemmons testified that the crowd's activities were not objectionable before that time. They became objectionable, according to the Sheriff himself, when Cox, concluding his speech, urged the students to go uptown and sit in at lunch counters. The Sheriff testified that the sole aspect of the program to which he objected was [t]he inflammatory manner in which he [Cox] addressed that crowd and told them to go on up town, go to four places on the protest list, sit down and if they don't feed you, sit there for one hour. Yet this part of Cox's speech obviously did not deprive the demonstration of its protected character under the Constitution as free speech and assembly. See Edwards v. South Carolina, supra ; Cantwell v. Connecticut, 310 U. S. 296; Thornhill v. Alabama, 310 U. S. 88; Garner v. Louisiana, 368 U. S. 157, 185 (concurring opinion of MR. JUSTICE HARLAN). The State argues, however, that while the demonstrators started out to be orderly, the loud cheering and clapping by the students in response to the singing from the jail converted the peaceful assembly into a riotous one. [9] The record, however, does not support this assertion. It is true that the students, in response to the singing of their fellows who were in custody, cheered and applauded. However, the meeting was an outdoor meeting and a key state witness testified that while the singing was loud, it was not disorderly. There is, moreover, no indication that the mood of the students was ever hostile, aggressive, or unfriendly. Our conclusion that the entire meeting from the beginning until its dispersal by tear gas was orderly [10] and not riotous is confirmed by a film of the events taken by a television news photographer, which was offered in evidence as a state exhibit. We have viewed the film, and it reveals that the students, though they undoubtedly cheered and clapped, were well-behaved throughout. My Brother BLACK, concurring in this opinion and dissenting in No. 49, post, agrees that the record does not show boisterous or violent conduct or indecent language on the part of the . . . students. Post, at 583. The singing and cheering do not seem to us to differ significantly from the constitutionally protected activity of the demonstrators in Edwards, [11] who loudly sang while stamping their feet and clapping their hands. Edwards v. South Carolina, supra, at 233. [12] Our conclusion that the record does not support the contention that the students' cheering, clapping and singing constituted a breach of the peace is confirmed by the fact that these were not relied on as a basis for conviction by the trial judge, who, rather, stated as his reason for convicting Cox of disturbing the peace that [i]t must be recognized to be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominantly white business district in the City of Baton Rouge and congregate across the street from the courthouse and sing songs as described to me by the defendant as the CORE national anthem carrying lines such as `black and white together' and to urge those 1,500 people to descend upon our lunch counters and sit there until they are served. That has to be an inherent breach of the peace, and our statute 14:103.1 has made it so. Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that violence was about to erupt because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that he felt the situation was getting out of hand as on the courthouse side of St. Louis Street were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated. A police officer stated that the reaction of the white crowd was not violent, but was rumblings. Others felt the atmosphere became tense because of mutterings, grumbling, and jeering from the white group. There is no indication, however, that any member of the white group threatened violence. And this small crowd estimated at between 100 and 300 was separated from the students by seventy-five to eighty armed policemen, including every available shift of the City Police, the Sheriff's Office in full complement, and additional help from the State Police, along with a fire truck and the Fire Department. As Inspector Trigg testified, they could have handled the crowd. This situation, like that in Edwards, is a far cry from the situation in Feiner v. New York, 340 U. S. 315. See Edwards v. South Carolina, supra, at 236. Nor is there any evidence here of fighting words. See Chaplinsky v. New Hampshire, 315 U. S. 568. Here again, as in Edwards, this evidence showed no more than that the opinions which . . . [the students] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection. Edwards v. South Carolina, supra, at 237. Conceding this was so, the compelling answer . . . is that constitutional rights may not be denied simply because of hostility to their assertion or exercise. Watson v. Memphis, 373 U. S. 526, 535. There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned, and (2) a refusal to move on after having been ordered to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term breach of the peace as to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet. 244 La., at 1105, 156 So. 2d, at 455. In Edwards, defendants had been convicted of a common-law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow persons to be punished merely for peacefully expressing unpopular views. Yet, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment . . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. Terminiello v. Chicago, 337 U. S. 1, 4-5. In Terminiello convictions were not allowed to stand because the trial judge charged that speech of the defendants could be punished as a breach of the peace  `if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.'  Id., at 3. The Louisiana statute, as interpreted by the Louisiana court, is at least as likely to allow conviction for innocent speech as was the charge of the trial judge in Terminiello. Therefore, as in Terminiello and Edwards the conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly. Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated in Stromberg v. California, 283 U. S. 359, 369: A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. For all these reasons we hold that appellant's freedoms of speech and assembly, secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment, were denied by his conviction for disturbing the peace. The conviction on this charge cannot stand.",the breach of the peace conviction.
+807,106967,1,3,"We now turn to the issue of the validity of appellant's conviction for violating the Louisiana statute, La. Rev. Stat. § 14:100.1 (Cum. Supp. 1962), which provides:  Obstructing Public Passages No person shall wilfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein. Providing however nothing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions. Appellant was convicted under this statute, not for leading the march to the vicinity of the courthouse, which the Louisiana Supreme Court stated to have been orderly, 244 La., at 1096, 156 So. 2d, at 451, but for leading the meeting on the sidewalk across the street from the courthouse. Id., at 1094, 1106-1107, 156 So. 2d, at 451, 455. In upholding appellant's conviction under this statute, the Louisiana Supreme Court thus construed the statute so as to apply to public assemblies which do not have as their specific purpose the obstruction of traffic. There is no doubt from the record in this case that this far sidewalk was obstructed, and thus, as so construed, appellant violated the statute. Appellant, however, contends that as so construed and applied in this case, the statute is an unconstitutional infringement on freedom of speech and assembly. This contention on the facts here presented raises an issue with which this Court has dealt in many decisions, that is, the right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and the concomitant right of the people of free speech and assembly. See Lovell v. Griffin, 303 U. S. 444; Hague v. CIO, 307 U. S. 496; Schneider v. State, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Cantwell v. Connecticut, 310 U. S. 296; Cox v. New Hampshire, 312 U. S. 569; Largent v. Texas, 318 U. S. 418; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Poulos v. New Hampshire, 345 U. S. 395. From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 451; Cox v. New Hampshire, supra, at 574; Schneider v. State, supra, at 160-161; Cantwell v. Connecticut, supra, at 306-307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490; Poulos v. New Hampshire, supra, at 405-408; see also, Edwards v. South Carolina, supra, at 236. We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post, at 563. We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, at 502, that it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. We have no occasion in this case to consider the constitutionality of the uniform, consistent, and nondiscriminatory application of a statute forbidding all access to streets and other public facilities for parades and meetings. [13] Although the statute here involved on its face precludes all street assemblies and parades, [14] it has not been so applied and enforced by the Baton Rouge authorities. City officials who testified for the State clearly indicated that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained. This was confirmed in oral argument before this Court by counsel for the State. He stated that parades and meetings are permitted, based on arrangements. . . made with officials. The statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. [15] From all the evidence before us it appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion. The situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be . . . disseminate[d]. . . . Schneider v. State, supra, at 164. See Lovell v. Griffin, supra ; Hague v. CIO, supra ; Largent v. Texas, supra ; Saia v. New York, supra ; Niemotko v. Maryland, supra ; Kunz v. New York, supra . This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See Saia v. New York, supra, at 562. Also inherent in such a system allowing parades or meetings only with the prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws. See Niemotko v. Maryland, supra, at 272, 284; cf. Yick Wo v. Hopkins, 118 U. S. 356. It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is exercised with `uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination'. . . [and with] a `systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways . . . .'  Cox v. New Hampshire, supra, at 576. See Poulos v. New Hampshire, supra . But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant's freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant's conviction for violating the statute as so applied and enforced must be reversed. For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed. Reversed.",the obstructing public passages conviction.
+808,109400,1,3,"[A] witness protected by the privilege may right-fully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U. S. 441 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U. S. 532 (1897)]; Boyd v. United States, [116 U. S. 616 (1886)]. Lefkowitz v. Turley, 414 U. S. 70, 78 (1973). See Murphy v. Waterfront Comm'n, 378 U. S. 52, 57 n. 6 (1964). Because the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity, the inquiry in a Fifth Amendment case is not ended when an incriminating statement is made in lieu of a claim of privilege. Nor, however, is failure to claim the privilege irrelevant. The Court has held that an individual under compulsion to make disclosures as a witness who revealed information instead of claiming the privilege lost the benefit of the privilege. United States v. Kordel, 397 U. S. 1, 7-10 (1970). Although Kordel appears to be the only square holding to this effect, the Court frequently has recognized the principle in dictum. Maness v. Meyers, 419 U. S. 449, 466 (1975); Rogers v. United States, 340 U. S. 367, 370-371 (1951); Smith v. United States, 337 U. S. 137, 150 (1949); United States v. Monia, 317 U. S. 424, 427 (1943); Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 112-113 (1927). [8] These decisions stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not compelled him to incriminate himself. [9] The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been `compelled' within the meaning of the Amendment. United States v. Monia, supra, at 427 (footnote omitted). In their insistence upon a claim of privilege, Kordel and the older witness cases reflect an appropriate accommodation of the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone's testimony. Mason v. United States, 244 U. S. 362, 364-365 (1917); see, e. g., Branzburg v. Hayes, 408 U. S. 665, 688 (1972); Kastigar v. United States, 406 U. S. 441, 443-445 (1972). Despite its cherished position, the Fifth Amendment addresses only a relatively narrow scope of inquiries. Unless the government seeks testimony that will subject its giver to criminal liability, the constitutional right to remain silent absent immunity does not arise. An individual therefore properly may be compelled to give testimony, for example, in a noncriminal investigation of himself. See, e. g., Gardner v. Broderick, 392 U. S. 273, 278 (1968). Unless a witness objects, a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled. In addition, the rule that a witness must claim the privilege is consistent with the fundamental purpose of the Fifth Amendment—the preservation of an adversary system of criminal justice. See Tehan v. United States ex rel. Shott, 382 U. S. 406, 415 (1966). That system is undermined when a government deliberately seeks to avoid the burdens of independent investigation by compelling self-incriminating disclosures. In areas where a government cannot be said to be compelling such information, however, there is no such circumvention of the constitutionally mandated policy of adversary criminal proceedings. Cf. Counselman v. Hitchcock, 142 U. S. 547, 562-565 (1892); California v. Byers, 402 U. S. 424, 456-458 (1971) (Harlan, J., concurring in judgment).",We start from the fundamental proposition:
+809,106702,1,1,"By electing to take under the will, Mrs. Stapf, in effect, agreed to accept the property devised to her and, in turn, to surrender property of greater value to the trust for the benefit of the children. This raises the question of whether a decedent's estate is allowed a marital deduction under § 812 (e) (1) (E) (ii) of the 1939 Code where the bequest to the surviving spouse is on the condition that she convey property of equivalent or greater value to her children. The Government contends that, for purposes of a marital deduction, the value of the interest passing to the wife is the value of the property given her less the value of the property she is required to give another as a condition to receiving it. On this view, since the widow had no net benefit from the exercise of her election, the estate would be entitled to no marital deduction. Respondents reject this net benefit approach and argue that the plain meaning of the statute makes detriment to the surviving spouse immaterial. Section 812 (e) (1) (A) provides that in general the marital deduction is for the value of any interest in property which passes . . . from the decedent to his surviving spouse. Subparagraph (E) then deals specifically with the question of valuation: (E) Valuation Of Interest Passing To Surviving Spouse.—In determining for the purposes of subparagraph (A) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this subsection— ..... (ii) where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such incumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined. The disputed deduction turns upon the interpretation of (1) the introductory phrase any obligation imposed by the decedent with respect to the passing of such interest, and (2) the concluding provision that such . . . obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined. The Court of Appeals, in allowing the claimed marital deduction, reasoned that since the valuation is to be as if a gift were being taxed, the legal analysis should be the same as if a husband had made an inter vivos gift to his wife on the condition that she give something to the children. In such a case, it was stated, the husband is taxable in the full amount for his gift. The detriment incurred by the wife would not ordinarily reduce the amount of the gift taxable to the husband, the original donor. [8] The court concluded: Within gift tax confines the community property of the widow passing under the will of the husband to others may not be `netted' against the devise to the widow, and thus testator, were the transfer inter vivos, would be liable for gift taxes on the full value of the devise. 309 F. 2d 592, 598. This conclusion, based on the alleged plain meaning of the final gift-amount clause of § 812 (e) (1) (E) (ii), [9] is not supported by a reading of the entire statutory provision. First, § 812 (e) allows a marital deduction only for the decedent's gifts or bequests which pass to his surviving spouse. In the present case the effect of the devise was not to distribute wealth to the surviving spouse, but instead to transmit, through the widow, a gift to the couple's children. The gift-to-the-surviving-spouse terminology reflects concern with the status of the actual recipient or donee of the gift. What the statute provides is a marital deduction—a deduction for gifts to the surviving spouse —not a deduction for gifts to the children or a deduction for gifts to privately selected beneficiaries. The appropriate reference, therefore, is not to the value of the gift moving from the deceased spouse but to the net value of the gift received by the surviving spouse. Second, the introductory phrases of § 812 (e) (1) (E) (ii) provide that the gift-amount determination is to be made where such interest or property is incumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest . . . . The Government, drawing upon the broad import of this language, argues: An undertaking by the wife to convey property to a third person, upon which her receipt of property under the decedent's will is conditioned, is plainly an `obligation imposed by the decedent with respect to the passing of such interest.'  Respondents contend that incumbrance or obligation refers only to a payment to be made out of property passing to the surviving spouse. Respondents' narrow construction certainly is not compelled by a literal interpretation of the statutory language. Their construction would embrace only, for example, an obligation on the property passing whereas the statute speaks of an obligation  with respect to the passing gift. Finally, to arrive at the real value of the gift such . . . obligation shall be taken into account . . . . In context we think this relates the gift-amount determination to the net economic interest received by the surviving spouse. This interpretation is supported by authoritative declarations of congressional intent. The Senate Committee on Finance, in explaining the operation of the marital deduction, stated its understanding as follows: If the decedent bequeaths certain property to his surviving spouse subject, however, to her agreement, or a charge on the property, for payment of $1,000 to X, the value of the bequest (and, accordingly, the value of the interest passing to the surviving spouse) is the value, reduced by $1,000, of such property. S. Rep. No. 1013, 80th Cong., 2d Sess., Pt. 2, p. 6. (Emphasis added.) The relevant Treasury Regulation is directly based upon, if not literally taken from, such expressions of legislative intent. Treas. Reg. 105, § 81.47c (b) (1949). The Regulation specifically includes an example of the kind of testamentary disposition involved in this case: A decedent bequeathed certain securities to his wife in lieu of her interest in property held by them as community property under the law of the State of their residence. The wife elected to relinquish her community property interest and to take the bequest. For the purpose of the marital deduction, the value of the bequest is to be reduced by the value of the community property interest relinquished by the wife. [10] We conclude, therefore, that the governing principle, approved by Congress and embodied in the Treasury Regulation, [11] must be that a marital deduction is allowable only to the extent that the property bequeathed to the surviving spouse exceeds in value the property such spouse is required to relinquish. Our conclusion concerning the congressionally intended result under § 812 (e) (1) accords with the general purpose of Congress in creating the marital deduction. The 1948 tax amendments were intended to equalize the effect of the estate taxes in community property and common-law jurisdictions. [12] Under a community property system, such as that in Texas, the spouse receives outright ownership of one-half of the community property and only the other one-half is included in the decedent's estate. To equalize the incidence of progressively scaled estate taxes and to adhere to the patterns of state law, the marital deduction permits a deceased spouse, subject to certain requirements, to transfer free of taxes one-half of the non-community property to the surviving spouse. Although applicable to separately held property in a community property state, the primary thrust of this is to extend to taxpayers in common-law States the advantages of estate splitting otherwise available only in community property States. The purpose, however, is only to permit a married couple's property to be taxed in two stages and not to allow a tax-exempt transfer of wealth into succeeding generations. Thus the marital deduction is generally restricted to the transfer of property interests that will be includible in the surviving spouse's gross estate. [13] Respondents' construction of § 812 (e) (1) would, nevertheless, permit one-half of a spouse's wealth to pass from one generation to another without being subject either to gift or estate taxes. [14] We do not believe that this result, squarely contrary to the concept of the marital deduction, can be justified by the language of § 812 (e) (1). Furthermore, since in a community property jurisdiction one-half of the community normally vests in the wife, approval of the claimed deduction would create an opportunity for tax reduction that, as a practical matter, would be more readily available to couples in community property jurisdictions than to couples in common-law jurisdictions. [15] Such a result, again, would be unnecessarily inconsistent with a basic purpose of the statute. Since in our opinion the plain meaning of § 812 (e) (1) does not require the interpretation advanced by respondents, the statute must be construed to accord with the clearly expressed congressional purposes and the relevant Treasury Regulation. We conclude that, for estate tax purposes, the value of a conditional bequest to a widow should be the value of the property given to her less the value of the property she is required to give to another. In this case the value of the property transferred to Mrs. Stapf ($106,268) must be reduced by the value of the community property she was required to relinquish ($111,443). Since she received no net benefit, the estate is entitled to no marital deduction.",the marital deduction.
+810,106702,1,2,"
+Section 812 (b) (3) of the 1939 Code provides for the deduction from the gross estate of Such amounts . . . for claims against the estate . . . as are allowed by the laws of the jurisdiction . . . under which the estate is being administered . . . . The community debts in this case total $32,368, consisting largely of taxes due for past income. The decedent's will directed that his executors pay all and not merely one-half of the community debts. Under Texas law, absent this provision, only one-half of the community debts would be charged to the decedent's half of the community. The issue presented is whether, as a result of the testamentary direction, a deduction may be taken for the entire amount of the community debts as claims against the estate . . . allowed by state law. The first question to consider is whether the claim is of the type intended to be deductible. [16] It cannot be denied that where the executors are directed to pay the debts of another party the substance of the direction is to confer a beneficial gift on that party. Respondents' contentions in effect require that § 812 (b)—designed to allow deductions for expenses, losses, indebtedness, and taxes—be construed to authorize tax-free gifts despite the general policy that wealth not be transmitted tax free at death. [17] The provisions of § 812 (b) demonstrate that it was not intended to allow deductions for voluntary transfers that deplete the estate merely because the testator described the transfers or payments as the settlement of claims or debts. This intent is evidenced by the treatment of claims or debts founded upon promises or agreements. The section carefully restricts the deductible amount in the case of claims against the estate . . . or any indebtedness . . . , when founded upon a promise or agreement, . . . to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth. . . . Absent such an offset or augmentation of the estate, a testator could disguise transfers as payments in settlement of debts and claims and thus obtain deductions for transmitting gifts. As this requirement suggests, a deduction under § 812 (b) should not be predicated solely on the finding that a promise or claim is legally enforceable under the state laws governing the validity of contracts and wills. [18] The claims referred to by the statute are those claims against the property of the deceased which are allowed by and enforceable under the laws of the administering State and not those claims created by the deceased's gratuitous assumption of debts attaching to the property of another. The pertinent Treasury Regulation states that the deductible claims are such only as represent personal obligations of the decedent . . . . [19] We cannot agree with respondents' contention that the debts chargeable to the wife's community property are personal obligations of the decedent within the meaning of the Regulation. It is true, as the Court of Appeals stated, that under Texas law the husband, as manager of the community property, was personally liable for the full amount of community debts. 309 F. 2d 592, 596. His liability for the portion of debts chargeable to his wife's community property was, however, accompanied by a right over against her half of the community. Ibid. The basic rule of Texas law is that the community is liable for its debts, and, accordingly, half the debts attach to the wife's community property. Since the will of the decedent cannot be allowed to define what is an obligation or a claim, where, as in this case, the community is solvent, the debts chargeable to the wife's property cannot realistically be deemed personal obligations of the decedent or claims against his estate. The provisions of § 812 (b), like those of § 812 (e) allowing marital deductions, must be analyzed in light of the congressional purpose of equalizing the incidence of taxation upon couples in common-law and community property jurisdictions. If the deductible claims were to include all community debts that might be, in a literal sense, personal obligations of the husband as surety, then a married couple in a community property State might readily increase their tax-free estate transfers. For example, by borrowing against the value of the community property and then requiring that his executors pay all community debts, the husband could obtain a tax deduction for what would in effect be a testamentary gift to his wife. [20] That gift might or might not qualify for treatment as a marital deduction, [21] but it certainly was not intended to be made deductible by § 812 (b). A contrary interpretation of § 812 (b) (3) would, in our opinion, generally tend to create unwarranted tax advantages for couples in community property States. [22]
+The testator's will provided that administration expenses, as well as community debts, should be paid entirely out of his half of the community property. The administration expenses totalled $4,073. Under Texas law an allocable share of these costs was chargeable to the surviving spouse's community property. That allocable share was determined to be 35% or $1,426. The issue is whether the executors' payment of the costs attributable to the wife's property are deductible administration expenses . . . allowed by the law of the State under § 812 (b) (2). The interpretation of administration expenses under § 812 (b) (2) involves substantially the same considerations that determine the interpretation of claims against the estate under § 812 (b) (3). In both instances, the testator, by directing that payment be made of debts chargeable to another or to non-estate property, reduces his net estate and in effect confers a gift or bequest upon another. We believe that the provisions of § 812 (b), like those of § 812 (e) providing the marital deduction, must be read in light of the general policies of taxing the transmission of wealth at death and of equalizing the tax treatment of couples in common-law and in community property jurisdictions. We hold, therefore, that a deduction may not be allowed for administration costs chargeable to the surviving spouse's community property.
+In our view the payments made as a result of the testator's assumption of responsibility both for his wife's share of the community debts and for her share of the administration expenses are more properly characterized as marital gifts rather than as claims or expenses. Since these gifts were to the surviving spouse, respondents contend that a marital deduction should be allowed. Our interpretation of § 812 (e) disposes of this argument, for under any view of the facts, even if these items are deemed to be gifts to the wife, the will required her to surrender property more valuable than the bequests she received. [23] In the absence of a net benefit passing to the surviving spouse, no marital deduction is allowable. The judgment of the Court of Appeals for the Fifth Circuit is reversed and the case remanded for proceedings in accordance with this opinion. It is so ordered.",claims against the estate and administration expenses.
+811,106702,2,1,"Section 812 (b) (3) of the 1939 Code provides for the deduction from the gross estate of Such amounts . . . for claims against the estate . . . as are allowed by the laws of the jurisdiction . . . under which the estate is being administered . . . . The community debts in this case total $32,368, consisting largely of taxes due for past income. The decedent's will directed that his executors pay all and not merely one-half of the community debts. Under Texas law, absent this provision, only one-half of the community debts would be charged to the decedent's half of the community. The issue presented is whether, as a result of the testamentary direction, a deduction may be taken for the entire amount of the community debts as claims against the estate . . . allowed by state law. The first question to consider is whether the claim is of the type intended to be deductible. [16] It cannot be denied that where the executors are directed to pay the debts of another party the substance of the direction is to confer a beneficial gift on that party. Respondents' contentions in effect require that § 812 (b)—designed to allow deductions for expenses, losses, indebtedness, and taxes—be construed to authorize tax-free gifts despite the general policy that wealth not be transmitted tax free at death. [17] The provisions of § 812 (b) demonstrate that it was not intended to allow deductions for voluntary transfers that deplete the estate merely because the testator described the transfers or payments as the settlement of claims or debts. This intent is evidenced by the treatment of claims or debts founded upon promises or agreements. The section carefully restricts the deductible amount in the case of claims against the estate . . . or any indebtedness . . . , when founded upon a promise or agreement, . . . to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth. . . . Absent such an offset or augmentation of the estate, a testator could disguise transfers as payments in settlement of debts and claims and thus obtain deductions for transmitting gifts. As this requirement suggests, a deduction under § 812 (b) should not be predicated solely on the finding that a promise or claim is legally enforceable under the state laws governing the validity of contracts and wills. [18] The claims referred to by the statute are those claims against the property of the deceased which are allowed by and enforceable under the laws of the administering State and not those claims created by the deceased's gratuitous assumption of debts attaching to the property of another. The pertinent Treasury Regulation states that the deductible claims are such only as represent personal obligations of the decedent . . . . [19] We cannot agree with respondents' contention that the debts chargeable to the wife's community property are personal obligations of the decedent within the meaning of the Regulation. It is true, as the Court of Appeals stated, that under Texas law the husband, as manager of the community property, was personally liable for the full amount of community debts. 309 F. 2d 592, 596. His liability for the portion of debts chargeable to his wife's community property was, however, accompanied by a right over against her half of the community. Ibid. The basic rule of Texas law is that the community is liable for its debts, and, accordingly, half the debts attach to the wife's community property. Since the will of the decedent cannot be allowed to define what is an obligation or a claim, where, as in this case, the community is solvent, the debts chargeable to the wife's property cannot realistically be deemed personal obligations of the decedent or claims against his estate. The provisions of § 812 (b), like those of § 812 (e) allowing marital deductions, must be analyzed in light of the congressional purpose of equalizing the incidence of taxation upon couples in common-law and community property jurisdictions. If the deductible claims were to include all community debts that might be, in a literal sense, personal obligations of the husband as surety, then a married couple in a community property State might readily increase their tax-free estate transfers. For example, by borrowing against the value of the community property and then requiring that his executors pay all community debts, the husband could obtain a tax deduction for what would in effect be a testamentary gift to his wife. [20] That gift might or might not qualify for treatment as a marital deduction, [21] but it certainly was not intended to be made deductible by § 812 (b). A contrary interpretation of § 812 (b) (3) would, in our opinion, generally tend to create unwarranted tax advantages for couples in community property States. [22]",Claims Against the Estate.
+812,106702,2,2,"The testator's will provided that administration expenses, as well as community debts, should be paid entirely out of his half of the community property. The administration expenses totalled $4,073. Under Texas law an allocable share of these costs was chargeable to the surviving spouse's community property. That allocable share was determined to be 35% or $1,426. The issue is whether the executors' payment of the costs attributable to the wife's property are deductible administration expenses . . . allowed by the law of the State under § 812 (b) (2). The interpretation of administration expenses under § 812 (b) (2) involves substantially the same considerations that determine the interpretation of claims against the estate under § 812 (b) (3). In both instances, the testator, by directing that payment be made of debts chargeable to another or to non-estate property, reduces his net estate and in effect confers a gift or bequest upon another. We believe that the provisions of § 812 (b), like those of § 812 (e) providing the marital deduction, must be read in light of the general policies of taxing the transmission of wealth at death and of equalizing the tax treatment of couples in common-law and in community property jurisdictions. We hold, therefore, that a deduction may not be allowed for administration costs chargeable to the surviving spouse's community property.",Administration Expenses.
+813,106702,2,3,"In our view the payments made as a result of the testator's assumption of responsibility both for his wife's share of the community debts and for her share of the administration expenses are more properly characterized as marital gifts rather than as claims or expenses. Since these gifts were to the surviving spouse, respondents contend that a marital deduction should be allowed. Our interpretation of § 812 (e) disposes of this argument, for under any view of the facts, even if these items are deemed to be gifts to the wife, the will required her to surrender property more valuable than the bequests she received. [23] In the absence of a net benefit passing to the surviving spouse, no marital deduction is allowable. The judgment of the Court of Appeals for the Fifth Circuit is reversed and the case remanded for proceedings in accordance with this opinion. It is so ordered.",The Payment of Debts and Expenses as a Marital Gift.
+814,112719,1,4,"Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State's broad power to impose appropriate restrictions upon an owner's use of his property. 458 U. S., at 441. We respected this distinction again in Florida Power, where we held that no taking occurs under Loretto when a tenant invited to lease at one rent remains at a lower regulated rent. Florida Power, 480 U. S., at 252-253. We continue to observe the distinction today. Because the Escondido rent control ordinance does not compel a landowner to suffer the physical occupation of his property, it does not effect a per se taking under Loretto. The judgment of the Court of Appeal is accordingly Affirmed.",We made this observation in Loretto:
+815,118040,1,4,"159 Perhaps conscious that noncompact congressional districts are the rule rather than the exception in Texas, the plurality suggests, ante, at __-__, __-__, that the real key is the direct evidence, particularly in the form of Texas' § 5 Voting Rights Act submissions and the person of then-State Senator Johnson, that the State expressed an intent to create these districts with a given ''minimum percentage of the favored minority.'' 861 F.Supp., at 1309. Even if it were appropriate to rest this test of dominance on an examination of the subjective motivation of individual legislators, 23 or on testimony given in a legal proceeding designed to prove a conflicting conclusion, 24 this information does little more than confirm that the State believed it necessary to comply with the Voting Rights Act. Given its reasonable understanding of its legal responsibilities, see supra, at __-__, the legislature acted to ensure that its goal of creating a majority-black district in Dallas County was not undermined by the changes made to accommodate District 30 to other, race-neutral districting principles. As the plurality admits, see ante, at __, the intent to create majority-minority districts does not in itself trigger strict scrutiny; these admissions prove nothing more than that. See also Shaw II, --- U.S., at ---- - ----, 116 S.Ct., at ---- - ---- (STEVENS, J., dissenting). Nonracial Factors: Community 160 In an effort to provide a definitive explanation for the odd shape of the district, the State emphasized two factors: The presence of communities of interest tying together the populations of the district, and the role of incumbency protection. The District Court and the plurality improperly dismissed these considerations as ultimately irrelevant to the shape of the districts. 161 First, the appellants presented testimony that the districts were drawn to align with certain communities of interest, such as land use, family demographics, and transportation corridors. See 861 F.Supp., at 1322-1323. Although the District Court recognized that these community characteristics amounted to accurate descriptions of District 30, id., at 1323, it dismissed them as irrelevant to the districting process, concluding that there was no evidence that ''the Legislature had these particular 'communities of interest' in mind when drawing the boundaries of District 30.'' Ibid. The plurality concludes that petitioners present no reason to displace that conclusion. Ante, at __. 162 I do not understand why we should require such evidence ever to exist. It is entirely reasonable for the legislature to rely on the experience of its members when drawing particular boundaries rather than on clearly identifiable ''evidence'' presented by demographers and political scientists. Most of these representatives have been members of their communities for years. Unless the Court intends to interfere in state political processes even more than it has already expressed an intent to do, I presume that it does not intend to require States to create a comprehensive administrative record in support of their redistricting process. State legislators should be able to rely on their own experience, not only prepared reports. To the extent that the presence of obvious communities of interest among members of a district explicitly or implicitly guided the shape of District 30, it amounts to an entirely legitimate non-r acial consideration. 25 Nonracial Factors: Incumbency 163 The plurality admits that the appellants ''present a . . . substantial case for their claim that incumbency protection rivalled race in determining the district's shape.'' Ante, at __. Every individual who participated in the redistricting process knew that incumbency protection was a critical factor in producing the bizarre lines and, as the plurality points out, ante, at __, even the District Court recognized that this nearly exclusive focus on the creation of ''safe'' districts for incumbents was intimately related to the bizarre shape of district lines throughout the State. 164 ''[I]n Texas in 1991, many incumbent protection boundaries sabotaged traditional redistricting principles as they routinely divided counties, cities, neighborhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Congressmen or would-be Congressmen shed hostile groups and potential opponents by fencing them out of their districts. The Legislature obligingly carved out districts of apparent supporters of incumbents, . . . and then added appendages to connect their residences to those districts. The final result seems not one in which the people select their representatives, but in which the representatives have selected the people.'' 861 F.Supp., at 1334 (citations and footnotes omitted). 165 See also id., at 1335, n. 43. Despite this overwhelming evidence that incumbency protection was the critical motivating factor in the creation of the bizarre Texas districts, the District Court reached the stunning conclusion that because the process was so ''different in degree'' from the ''generalized, and legitimate, goal of incumbent and seniority protection'' that this Court has previously recognized, it could not serve as a legitimate explanation for the bizarre boundaries of the congressional districts. Id., at 1334-1335. In dismissing incumbency protection once and for all, the District Court stated that ''[i]ncumbent protection is a valid state interest only to the extent that it is not a pretext for unconstitutional racial gerrymandering.'' Id., at 1336. 166 It is difficult to know where to begin to attack the misperceptions reflected in these conclusions, 26 and the plurality's failure to do so seriously taints its evaluation of the relative importance of nonracial considerations in the creation of District 30. The initial problem, of course, is that under the Court's threshold test as set forth in Miller, one must consider the role of incumbency protection before determining whether there is an ''unconstitutional racial gerrymander.'' And because the ultimate focus in these gerrymandering cases is the claim that race was the ''dominant and controlling rationale in drawing [the] district lines,'' 515 U.S., at ----, 115 S.Ct., at 2480-2481, a court must, in applying that test, consider a State's claim that a given race-neutral rationale controlled the creation of those lines. See id., at ----, 115 S.Ct., at 2488 (''Where [compactness, contiguity,] or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can 'defeat a claim that a district has been gerrymandered on racial lines' ''). Although a court may not like the State's explanation, that is no excuse for ignoring it. 167 If some independent bar prevented the use of that race-neutral criterion, then the District Court might be in a position to object to the State's use of it. We have, however, affirmed that a State has an interest in incumbency protection, see, e.g., ante, at __ (opinion of O'CONNOR, J.); White v. Weiser, 412 U.S. 783, 791, 797, 93 S.Ct. 2348, 2352-2353, 2355-2356, 37 L.Ed.2d 335 (1973), and also assured States that the Constitution does not require compactness, contiguity, or respect for political borders, see Shaw I, 509 U.S., at 647, 113 S.Ct., at 2826-2827. While egregious political gerrymandering may not be particularly praiseworthy, see infra, at __, it may nonetheless provide the race-neutral explanation necessary for a State to avoid strict scrutiny of the district lines where gerrymandering is the ''dominant and controlling'' explanation for the odd district shapes. 27 168 The District Court's error had an apparently dispositive effect on its assessment of whether strict scrutiny should apply at all. Although aspects of our dispute with the plurality are ''largely factual,'' ante, at __, n. , they arise not out of our disagreement with the District Court's credibility assessments, but out of that court's erroneous conclusion that the state's overwhelming reliance on this race-neutral factor was illegitimate and irrelevant to its evaluation of the factors involved in the shifting of this District's lines. A fair evaluation of the record made in light of appropriate legal standards requires a conclusion very different from the District Court's. By following the District Court down its misdirected path, the Court itself goes astray. Race as a Proxy 169 Faced with all this evidence that politics, not race, was the predominant factor shaping the district lines, the plurality ultimately makes little effort to contradict appellants' assertions that incumbency protection was far more important in the placement of District 30's lines than race. See ante, at __. Instead, it adopts a fall-back position based on an argument far removed from even the ''analytically distinct'' claim set forth in Shaw I, 509 U.S., at 652, 113 S.Ct., at 2829-2830. In it, the Court suggests that even if the predominant reason for the bizarre features of the majority-minority districts was incumbency protection, the State impermissibly used race as a proxy for determining the likely political affiliation of blocks of voters. See ante, at __-__ (opinion of O'CONNOR, J.). 170 The effect of this process, in all likelihood, was relatively unimportant to the overall shape of the district. A comparison of the 1992 precinct results with a depiction of the proportion of black population in each census block reveals that Democratic-leaning precincts cover a far greater area than majority-black census blocks. Compare State's Exh. 9A with State's Exh. 45. One would expect the opposite effect if the single-minded goal of those drawing the districts was racial composition rather than political affiliation. At the very least, the maps suggest that the drawing of boundaries involves a demographic calculus far more complex than simple racial stereotyping. 171 Furthermore, to the extent that race served as a proxy at all, it did so merely as a means of ''fine tuning'' borders that were already in particular locations for primarily political reasons. This ''fine tuning'' through the use of race is, of course, little different from the kind of fine tuning that could have legitimately occurred around the edges of a compact majority-minority district. 28 I perceive no reason why a legitimate process--choosing minority voters for inclusion in a majority-minority district--should become suspect once nonracial considerations force district lines away from its core.. 172 Finally, I note that in most contexts racial classifications are invidious because they are irrational. For example, it is irrational to assume that a person is not qualified to vote or to serve as a juror simply because she has brown hair or brown skin. It is neither irrational, nor invidious, however, to assume that a black resident of a particular community is a Democrat if reliable statistical evidence discloses that 97% of the blacks in that community vote in Democratic primary elections. See Brief for United States 44. For that reason, the fact that the architects of the Texas plan sometimes appear to have used racial data as a proxy for making political judgments seems to me to be no more ''unjustified,'' ante, at __ (opinion of O'CONNOR, J.), and to have no more constitutional significance, than an assumption that wealthy suburbanites, whether black or white, are more likely to be Republicans than communists. 29 Requiring the State to ignore the association between race and party affiliation would be no more logical, and potentially as harmful, as it would be to prohibit the Public Health Service from targeting African-American communities in an effort to increase awareness regarding sickle-cell anemia. 30 173 Despite all the efforts by the plurality and the District Court, then, the evidence demonstrates that race was not, in all likelihood, the ''predominant'' goal leading to the creation of District 30. The most reasonable interpretation of the record evidence instead demonstrates that political considerations were. In accord with the presumption against interference with a legislature's consideration of complex and competing factors, see n. 9, supra, I would conclude that the configuration of District 30 does not require strict scrutiny.",Intent
+816,86457,1,1,"The answer alleges, that, at the public sale by the United States, lot No. 7 was purchased by defendant himself, and therefore the vendor is unable to comply with his contract by making him a title, and, moreover, that Whitesides has become the purchaser of lot No. 194, and therefore he, Bush, was without title to it. This defence seems founded on an entire mistake or ignorance of the law; as the facts alleged lead to a directly contrary conclusion, and show that the defendant has a complete legal title. If Whitesides sold to him with covenant of warranty, and afterwards purchased the legal title, as the answer asserts, with regard to lot No. 194, then is the title vested in Bush, the vendee, by estoppel, and no further conveyance is necessary. As to lot No. 7, Bush, having obtained possession under Whitesides, cannot, by the purchase of an outstanding title, defeat the claim of his vendor. It is a well-established rule of equity, that if a vendee buys up a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title. Equity treats the purchaser as a trustee for his vendor, because he holds under him; and acts done to perfect the title by the former, when in possession of the land, inure to the benefit of him under whom the possession was obtained, and through whom a knowledge of a defect of title was obtained. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. (See Galloway v. Findlay, 12 Peters, 295, and cases there cited.) In the present case, the vendee has bought in, for twenty dollars, the legal title to a property worth more than two thousand, the possession of which he received from his vendor; and not only so, but, contrary to good faith and fair dealing, he has interfered to overbid his vendor, who was using every endeavour to purchase the title for the use of his vendee, in fulfilment of his own covenants. The appellant has paid no more (or, if more, so little as to be unworthy of notice) than he agreed to pay for the purpose of getting the legal title. He has got a good title to the property, and ought in justice and equity to pay for it the full consideration which he has covenanted to pay. The decree of the Supreme Court of Iowa must therefore be affirmed, with costs, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest thereon and the costs, within sixty days from the filing of the record in this case in the proper court of the State of Iowa. Order. This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Iowa, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Supreme Court in this cause be and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest thereon, and the costs, within sixty days from the filing of the mandate in this case in the proper court of the State of Iowa.",The other ground of avoidance is failure of consideration.
+817,86886,1,1,"That the trustees should not have been allowed and credited by five per cent. on the principal of the personal estate, and ten per cent. on the income, as was done by the auditor; that they should not be allowed any commission at all, either upon the principal or income of the estate; that in any event they should not be credited by any commission upon the amount of principal never collected, upon the amount of bank and other stocks. In England, courts of equity adhere to the principle which has its origin in the Roman law, that a trustee shall not profit by his trust, and therefore that a trustee shall have no allowance for his care and trouble. A different rule prevails generally, if not universally, in this country. Here it is considered just and reasonable that a trustee should receive a fair compensation for his services; and in most cases it is guaged by a certain per centage on the amount of the estate. The allowances made by the auditor in this case are, we believe, such as are customary in similar cases, in Maryland and this district, where the trustee has performed his duties with honor and integrity. But on principles of policy as well as morality, and in order to insure a faithful and honest execution of a trust, as far as practicable, it would be inexpedient to allow a trustee who has acted dishonestly or fraudulently the same compensation with him who has acted uprightly in all respects. And there may be cases where negligence and want of care may amount to a want of good faith in the execution of the trust as little deserving of compensation as absolute fraud. If trustees, having a large estate to invest and accumulate for the benefit of an infant, for a number of years, will keep no books of account, make out no annual or other account of their trust estate; if they risk the trust funds in their own speculations; lend them to their relations without security; and in other ways show a reckless disregard of the duties which they have assumed, they can have but small claim on a court of equity for compensation in any shape or to any amount. But while the court agree in these principles, they are equally divided in opinion as to the application of them to the present case. The decision of the auditor and the court below on this exception must therefore stand affirmed. IV. The fourth exception is, that the auditor did not charge the trustees upon the principle of six months' rest and compound interest. On the subject of compounding interest on trustees, there is, and indeed could not well be, any uniform rule which could justly apply to all cases. When a trust to invest has been grossly and wilfully neglected; where the funds have been used by the trustees in their own business, or profits made of which they give no account, interest is compounded as a punishment, or as a measure of damage for undisclosed profits and in place of them. For mere neglect to invest, simple interest only is generally imposed. Six months rests have been made only where the amounts received were large, and such as could be easily and at all times invested. The auditor in this case has made yearly rests. In calculating the interest on the loans, he says, it has been charged upon the days on which it became due, first applied to the disbursements, and the balance struck at the end of each year and interest calculated on such balances while unemployed, but such interest has not been carried into the receipts of the succeeding year, but into a separate column, and the aggregate of interest for all the years on these balances is added to the principal at the foot of the account. In this I have followed the rule in Grernbary's Case, 1 Wash. R. 246, and Leigh, 348. In this way he alleges, that compound interest is in effect given on the loans, and simple interest upon the annual balances while they were uninvested, allowing a month after the termination of each rest to make the investment. As the sums received by the trustees in this case were small, and as three fourths of the annual income were liable to be called for by the guardian for the use of his ward, we are of opinion the auditor has stated the account in this respect with fairness and discretion. The fourth exception is therefore not sustained. V. The fifth exception is, that the trustees should have been charged by the auditor with all gains, as with those arising from usurious loans, unknown friends, or otherwise. It is a well-settled principle of equity, that wherever a trustee, or one standing in a fiduciary character, deals with the trust estate for his own personal profit, he shall account to the cestui que trust for all the gain which he has made. If he uses the trust money in speculations, dangerous though profitable, the risk will be his own, but the profit will inure to the cestui que trust. Such a rule, though rigid, is necessary to prevent malversation. See Docker v. Somes, 2 My. & K. 655. The money used in purchase of the house, having been settled by the transfer of the same to the complainant, the subject-matter of the present exception has been confined to the usurious interest received. It amounts only to the sum of sixty-six dollars. The auditor and the court erred in not charging that sum to the accountants. They cannot be allowed to aver that the profits made on the trust funds should be put in their own pockets, because they were unlawful gains, for fear that the conscience of the cestui que trust should be defiled by a participation in them. To indulge trustees in such an obliquity of conscience, would be holding out immunity for misconduct and an inducement to speculate with the trust funds, and put them in peril. This exception is therefore sustained. VI. The sixth exception is, that the trustees should not have been credited by the loan to Fowler & Co. or any part thereof. This is the most important point in the case. The facts affecting it are reported by the auditor, as follows: C.S. Fowler & Co. were brokers in this city, dealing in exchange, loans, and all the usual business of such an establishment; and, in addition, issued notes which formed a part of the circulating medium of the city. They also received deposits and allowed interest at six per cent., permitting the depositor to check on the amount to his credit at pleasure. The establishment was in good credit in 1841, and up to the failure, in the early part of 1842, many of the business men of the city deposited their funds with them. On the 22d of May, 1841, Mr. Saunders placed with Fowler & Co. $1,181 under the following agreement, entered in a pass or check book: CITY OF WASHINGTON, 22 May, 1841. We hereby agree with D. Saunders, acting trustee of Edw. DeKraft's estate, to receive his deposits and to allow him six per cent. interest thereon, he to check at will. C.S. FOWLER & Co. And an account was opened in said pass-book, headed thus: Dr. — C.S. Fowler & Co., in account with D. Saunders, acting trustee of Edw. DeKraft's estate — Cr. Other sums were afterwards added, and on the 3d of February, 1842, when the last was made, they amounted to $5,277.38, and the checks to $2,306.69; to the 1st of December, 1841, the checks amounted to $1,312, and the deposits to $3,133.88, leaving $1,825.83 undrawn in the hands of Fowler & Co. The sums received from Cooper, and left with Fowler & Co., amounted to $1,876, and the other sums placed with them prior to the 1st of December, 1841, to $1,261.88, within $50.12 of the amount checked out up to this time. The first sum paid in ($1,181) was a payment made on the same 22d of May, by Cooper, on account of the principal and interest due on his mortgage. The $1,700 paid on the 17th of August was also a part of Cooper's debt. The $800 paid in on the 3d of February, was a part of Jones's mortgage debt. The residue is supposed to have been the current collections of the trustees from rents, dividends, &c. On the 14th March, 1842, Fowler & Co. failed. No interest had been calculated or paid. The account was balanced after the failure, when $2,970.96, were found standing to the credit of Saunders, as acting trustee. It is a total loss. The credit of Fowler & Co. was good up to the time of their failure. Before placing the trust fund with Fowler & Co. the trustees took the opinion of counsel, whether they could safely do so. It was in evidence, also, that at any time within the last ten years two or three thousand dollars could have been safely loaned on mortgage of real estate in this city. By the decision of the auditor the trustees were charged with those portions of the Fowler deposit which were composed of the original capital paid in by Cooper before December, and the residue of that loss, composed of their current annual collections and of Jones's payment in February, on account of the original debt, was allowed as a credit. The court below overruled this decision of the auditor, and ordered the charge against the trustees of $2,521.53, on this account, to be stricken out. We are of opinion, that the court below erred in making this correction of the auditor's report. The reasons given by the auditor, including the peculiar facts of the case and the principles of law applicable to them, are well stated in his report, and we fully concur in their correctness. It will be only necessary to state them. The sums placed by D. Saunders, as acting trustee, with Fowler & Co., were of two descriptions — original capital, and current collections. Cooper's and Jones's payments were of the former description. 1. As to those, the general rule seems to be that a trustee, though compensated for his services, is bound to take no greater care of the trust funds than a prudent man would of his own. 2 Story's Eq. § 1268. But at the same time if the line of his duty is prescribed he must, according to Mr. Lewin, (p. 413,) strictly pursue it, without swerving to the right hand or the left; and if he fail to do so, and keep funds, which ought to be invested, longer on deposit than necessary, and loss occur, he must bear the loss. Whatever doubt may be entertained as to the duty of the trustees in this case, to invest the surplus annual income beyond the fourth, it is thought there can be no doubt as to their obligation to reinvest the original loans and debts of the testator, when paid in. If this be so, then were these sums paid by Cooper and Jones to the trustees, and by them placed with Fowler & Co., a loan or deposit with them. They were repayable with interest at pleasure. It looks very much like a loan, payable with interest, on demand. And if a loan, clearly the trustees are liable, because made without security of any description. The directions of the will are to invest on some security in bank or other stocks, mortgages or other good security, words which exclude personal security. But the trustees, in their answers, deny it was a loan, and state that these sums were deposits made to await a fit opportunity of investment. Assuming them to be such, the proof is that mortgages could be obtained at any time in this city. But trustees shall be allowed a reasonable time to select investments. What is a reasonable time? Five months have been held to be an unreasonable time to keep money on deposit. Cooper's first payment was left with Fowler & Co. nearly ten months before the failure, from May, 1841 to March, 1842, and his second, seven months, from August to March. Jones's was left February 3, 1842 — not quite six weeks before the failure. Cooper's would seem to have been on deposit waiting for investment too long, and therefore I have charged the trustees with those sums, deducting the arrear of interest due from him, and deeming three months not to be an unreasonable time to be allowed for selecting investments, have charged interest from that time. By that rule, Jones's payment of original capital would not be chargeable to the trustees. We concur also in the decision of the auditor as to his refusal to charge the trustees with the balance arising from current collections and the payment of Jones, made within six weeks of the failure. The funds were deposited where the accountants deposited their own private funds. The trust funds were not mingled with their own. Other prudent and discreet men made deposits with the same bankers. The advice of counsel was taken. There was no reason to suspect the solvency of the bankers. On the whole, we do not think the trustees have acted with such want of prudence or discretion as to render them liable for the loss of this portion of the funds. VII. As the whole trust estate has been delivered over to the cestui que trust, and as the trustees hold only the bare legal estate for the purpose of protecting the complainant in the enjoyment of it from the debts and control of her husband, the exception taken to the action of the court below in refusing to remove them, becomes of no importance, and has not been insisted on. The decree of the court below is therefore reversed, as to the fifth and sixth exceptions above stated — and affirmed as to the residue. And the record remitted to the court below, with directions to amend the decree in conformity with this decision. Order. This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed with costs, and that this cause be, and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this court.","The third exception is,"