source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Chief Justice Warren, Mr. Justice Black,

license: Public Domain

text:
    FRANK v. UNITED STATES.
    No. 200.
    Argued December 12, 1968.
    Decided May 19, 1969.

      John B. Ogden argued the cause and filed briefs for petitioner.

      Peter L. Strauss argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Edward Fenig.

      Frank S. Hogan, pro se, and Michael R. Juviler filed a brief for the District Attorney of New York County as amicus curiae urging affirmance.
   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner was charged with criminal contempt of the United States District Court for the Western District of Oklahoma. The charge resulted from his violation of an injunction issued by that court at the request of the Securities and Exchange Commission. The injunction restrained petitioner from using interstate facilities in the sale of certain oil interests without having filed a registration statement with the Commission. Petitioner’s demand for a jury trial was denied. He was convicted, and the court suspended imposition of sentence and placed him on probation for three years. The Court of Appeals affirmed. Frank v. United States, 384 F. 2d 276 (C. A. 10th Cir. 1967). We granted certiorari, 392 U. S. 925 (1968), to determine whether petitioner was entitled to a jury trial. We conclude that he was not.

The Sixth Amendment to the Constitution gives defendants a right to a trial by jury in “all criminal prosecutions.” However, it has long been the rule that so-called “petty” offenses may be tried without a jury. See, e. g., District of Columbia v. Clawans, 300 U. S. 617 (1937). For purposes of the right to trial by jury, criminal contempt is treated just like all other criminal offenses. The defendant is entitled to a jury trial unless the particular offense can be classified as “petty.” Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968); Bloom v. Illinois, 391 U. S. 194 (1968); Cheff v. Schnackenberg, 384 U. S. 373 (1966).

In determining whether a particular offense can be classified as “petty,” this Court has sought objective indications of the seriousness with which society regards the offense. District of Columbia v. Clawans, supra, at 628. The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission. Thus, in Clawans this Court held that a jury trial was not required in a prosecution for engaging in a certain business without a license, an offense carrying a maximum sentence of 90 days. Recently, we held that a jury trial was required in a state prosecution for simple battery, an offense carrying a possible prison sentence of two years. Duncan v. Louisiana, 391 U. S. 145 (1968).

In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion. In such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense. See Duncan v. Louisiana, supra, at 162, n. 35. But a person may be found in contempt of court for a great many different types of offenses, ranging from disrespect for the court to acts otherwise criminal. Congress, perhaps in recognition of the scope of criminal contempt, has authorized courts to impose penalties but has not placed any specific limits on their discretion; it has not categorized contempts as “serious” or “petty.” 18 U. S. C. §§401, 402. Accordingly, this Court has held that in prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense. See, e. g., Cheff v. Schnackenberg, supra. Thus, this Court has held that sentences for criminal contempt of up to six months may constitutionally be imposed without a jury trial. Ibid.

The Government concedes that a jury trial would have been necessary in the present case if petitioner had received a sentence in excess of six months. Indeed, the Government concedes that petitioner may be sentenced to no more than six months if he violates the terms of his probation. However, the Government argues that petitioner’s actual penalty is one which may be imposed upon those convicted of otherwise petty offenses, and, thus, that a jury trial was not required in the present case. We agree.

Numerous federal and state statutory schemes allow significant periods of probation to be imposed for otherwise petty offenses. For example, under federal law, most offenders may be placed on probation for up to five years in lieu of or, in certain cases, in addition to a term of imprisonment. See 18 TJ. S. C. § 3651. Congress, in making the probation statute applicable to “any offense not punishable by death or life imprisonment,” clearly made it apply to petty, as well as more serious, offenses. In so doing, it did not indicate that the additional penalty of a term of probation was to place otherwise petty offenses in the “serious” category. In other words, Congress decided that petty offenses may be punished by any combination of penalties authorized by 18 U. S. C. § 1 and 18 U. S. C. § 3651. Therefore, the maximum penalty authorized in petty offense cases is not simply six months’ imprisonment and a $500 fine. A petty offender may be placed on probation for up to five years and, if the terms of probation are violated, he may then be imprisoned for six months. 18 U. S. C. § 3653.

In Cheff, this Court undertook to categorize criminal contempts for purposes of the right to trial by jury. In the exercise of its supervisory power over the lower federal courts, the Court decided by analogy to 18 U. S. C. § 1 that penalties not exceeding those authorized for petty offenses could be imposed in criminal contempt cases without affording the right to a jury trial. We think the analogy used in Cheff should apply equally here. Penalties presently authorized by Congress for petty offenses, including a term on probation, may be imposed in federal criminal contempt cases without a jury trial. Probation is, of course, a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself. In noncontempt cases, Congress has not viewed the possibility of five years’ probation as onerous enough to make an otherwise petty offense “serious.” This Court is ill-equipped to make a contrary determination for contempt cases. As this Court said in Clawans, “[d]oubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.” 300 U. S., at 628.

Petitioner’s sentence is within the limits of the congressional definition of petty offenses. Accordingly, it was not error to deny him a jury trial.

Affirmed.

Me. Justice Hablan and Mr. Justice Stewart, adhering to the views expressed in the dissenting opinion of Mr. Justice Harlan in Bloom v. Illinois, 391 U. S. 194, 215, and in Part I of Mr. Justice Harlan’s separate opinion in Cheff v. Schnackenberg, 384 U. S. 373, 380, but considering themselves bound by the decisions of the Court in those cases, join in the above opinion on these premises.

Mr. Chief Justice Warren,

with whom Mr. Justice Douglas joins,

dissenting.

The Court’s decision today marks an unfortunate retreat from our recent decisions enforcing the Constitution’s command that those accused of criminal offenses be afforded their fundamental right to a jury trial. See, e. g., Bloom v. Illinois, 391 U. S. 194 (1968); Duncan v. Louisiana, 391 U. S. 145 (1968); Cheff v. Schnackenberg, 384 U. S. 373 (1966). At the same time, the Court announces an alarming expansion of the non jury contempt power, the excessive use of which we have so recently limited in Bloom v. Illinois, supra, and Cheff v. Schnackenberg, supra. The inescapable effect of this recession will be to put a new weapon for chilling political expression in the unrestrained hands of trial judges. Now freed from the checks and restraints of the jury system, local judges can achieve, for a term of years, significant control over groups with unpopular views through the simple use of the injunctive and contempt power together with a punitive employment of the probation device, the conditions of which offer almost unlimited possibilities for abuse. Because I do not desire to contribute to such a result, and because I believe the Court’s rationale rests on a misreading of the probation statute, I must note my dissent.

I.

Today’s decision stands as an open suggestion to the courts to utilize oppressive practices for avoiding, in unsettled times such as these, issues that must be squarely faced and for denying our minorities their full rights under the First Amendment. In order to inhibit, summarily, a group seeking to propagate even the least irritating views, a trial judge need only give a quick glance at the Court’s opinion to recognize the numerous options now open to him. If, for instance, a large number of civil rights advocates, labor unionists, or student demonstrators are brought into court on minor trespass or disturbance charges, a jury will not be required even though the court proposes to control their lives for as long as five years. Without having to wait for a jury conviction, the trial judge would be free to impose, at will, such a lengthy probation sentence with onerous probation conditions — the effect of which could be oppressive. A trial judge need not wait until laws are violated and prosecutions are actually brought. He can simply issue a blanket injunction against an unpopular group, cite its members for contempt en masse for the slightest injunction violation, deny them a jury, and then, by imposing strict conditions, effectively deprive them of any meaningful freedom for an indefinite period of up to five years. Despite our recent efforts to curb its use (see Carroll v. Princess Anne, 393 U. S. 175 (1968)) the injunction power has today become, when used with this newly liberated contempt power, too awesome a weapon to place in the hands of one man. The situation presented by Walker v. Birmingham, 388 U. S. 307 (1967), is but one example of the power now made freely available to trial judges.

The probation conditions imposed in this case (see n. 6, ante) illustrate the high degree of control that courts, together with their probation officers, can maintain over those brought before them. Thus, a court can require defendants to keep “reasonable hours” and, in addition, prohibit them from leaving the court’s jurisdiction without the probation officer’s permission. By instructing the probation officer to construe the reasonable hours restriction strictly and to refuse permission to leave the jurisdiction, a trial court can thereby virtually nullify a person’s freedom of movement. Moreover, a court can insist that a defendant “work regularly,” and thereby regulate his working life as well. Finally, a court can order a defendant to associate only with “law-abiding” persons, thereby significantly limiting his freedom of association, for this condition, which does not limit revocation of probation to “knowing association,” forces him to choose his acquaintances at his peril.

Even these conditions, restrictive as they are, do not represent all the conditions available to a trial judge; he may impose others, and, of course, change or add to the conditions at any time during the five-year period. The court’s ability, further, to impose a six-month prison term for a probation violation at any time during that period, even after four years and 11 months, leaves no room for doubt as to the power of the probation officer to enforce the restrictions most severely. And finally, the ease with which a probation officer can find a violation of so many broad conditions enhances the value of the probation device as a harassment tactic. Once having found a violation, of course, a trial court need not bother with a fair adversary hearing before committing the offenders to prison, for Mempa v. Rhay, 389 U. S. 128 (1967), does not require counsel at probation revocation hearings in misdemeanor cases.

If, in hamstringing protest groups, a trial judge is bound only by a five-year maximum probation period and the limits of his imagination in conceiving restrictive conditions, I would at least require that those on the receiving end be tried first by a jury. And the trend may be to allow the States even more leeway than federal courts, for there is nothing in the Court’s opinion to prohibit a State from allowing more than five years’ probation, or as much as 10 or 15 years. Thus far, we have, not held the States to as strict a standard as the federal system; for while we have ruled that no crime punishable by more than six months may be tried without a jury in the federal courts (see Cheff, supra), we have yet to find a jury necessary for any crime punishable by less than two years in state courts (see Duncan, supra). Furthermore, under the Court’s practice of looking to legislative definitions and “existing . . . practices in the Nation,” Duncan, supra, at 161, for indications of the seriousness of crimes in determining when the right to jury attaches, the Court might accept a State’s legislative efforts to allow an indefinite period of probation for professed “petty” offenses. Even at present many States allow more than five years’ probation, and some States allow trial courts to impose unlimited probationary sentences.

II.

The painful aspect of today’s decision is that its rationale is as impermissible as its consequences. The Court’s holding that petitioner’s sentence is “within the limits of the congressional definition of petty offenses” is no less than astounding. In the first place, Congress acted quite without regard to the crime classifications set out in 1909 (the present section is based on the Act of March 4, 1909, c. 321, § 335, 35 Stat. 1152) when it passed the probation system in 1925 (Act of March 4, 1925, c. 521, § 1, 43 Stat. 1259). There is simply no indication in the statute itself or its legislative history that 18 U. S. C. § 3651 was intended to modify, complement, add to, or even relate to the petty offense definition, or any definition, in 18 U. S. C. § 1; the reference to capital or life sentence cases, for which probation is prohibited, is made in § 3651 itself, without citation to 18 U. S. C. § 1. More importantly, however, there is every indication that Congress affirmatively determined that probation should not affect its earlier definitions by making probation freely available to virtually all crimes — including most felonies not thereby rendered “petty” because of probation’s imposition. In the second place, even if Congress did “add” probation to the “petty” offense definition, the expanded definition would not necessarily be as binding on us as the Court seems to suggest. We cannot, it seems to me, place unlimited reliance on legislative definitions and “existing . . . practices in the Nation” and thereby allow Congress and the States to rewrite the Sixth Amendment of the Constitution by simply terming “petty” any offense regardless of the underlying sentence.

The Court’s misapprehension of the probation statute can better be understood by analyzing first how it arrived at its decision. In holding that a trial judge, acting without a jury conviction, can sentence a man to serve at least five years on probation and an additional six months, the Court purports to rely on, and not overrule, Cheff, supra, where we held that six months’ imprisonment was the maximum sentence that could be imposed without a jury in federal cases. We arrived at that determination by seeking “objective indications of the seriousness with which society regards the offense,” ante, at 148, the standard we have traditionally used in determining whether a particular crime can be classified as “petty” and thus tried without a jury. See District of Columbia v. Clawans, 300 U. S. 617 (1937); Duncan v. Louisiana, supra; Bloom v. Illinois, supra. As the Court notes, Cheff found the “objective criteria” by analogy to 18 U. S. C. § 1, the congressional definitional section which states that an offense punishable by six months or less is a “petty” offense, and followed that determination in ruling that a six months’, nonjury contempt sentence was permissible. The Court pursues that analogy in this case. Thus, it argues that since Congress has also provided that up to five years’ probation can be imposed for a “petty” offense, apparently without making such an offense “serious” under the definitional section, petitioner, whose sentence fell within that five-year limit, was not entitled to a jury trial.

Such a leap from the definition of petty offenses in 18 U. S. C. § 1 to the provision for probation in 18 U. S. C. § 3651 ascribes to Congress a determination I am certain it did not make, and misconstrues the nature of the probation statute. The probationary scheme does not purport to set specific sentences for particular classes of crimes, thus evincing an “objective indication” of the “seriousness with which society regards the offense,” the standard we have used in determining when the right to jury trial attaches. Rather, it is designed to allow a sentencing judge to put aside the statutorily prescribed prison term and to try instead to fashion a specific, ameliorative sentence for the individual criminal before the court. The sentence should be consistent with probation’s basic purpose of providing “an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement,” Roberts v. United States, 320 U. S. 264, 272 (1943), before such imprisonment “should stain the life of the convict,” United States v. Murray, 275 U. S. 347, 357 (1928).

The focus of probation is not on how society views the offense, but on how the sentencing judge views the offender. “Through the social investigation of the probation officer and the power to place suitable cases on probation,” the House Judiciary Committee stated in support of the first probation bill to be signed into law, “the court is enabled to discriminate and adapt its treatment to fit the character and circumstances of the individual offender.” H. R. Rep. No. 423, 68th Cong., 1st Sess., 2 (1924). The necessity to “individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender,” we have held, requires the “exercise of a broad discretion” and “an exceptional degree of flexibility.” Burns v. United States, 287 U. S. 216, 220 (1932). In exercising that broad discretion, of course, a sentencing judge can utilize probation in all but capital or life sentence cases.

In orienting the probation system toward the individual criminal and not the crime itself, and in making it available for felonies and misdemeanors as well as petty offenses, Congress clearly did not intend the maximum five-year probation period to be any indication of society’s views of the seriousness of crimes in general, except to provide that probation is inappropriate for capital or life sentence cases. Although the Court holds that “Congress has not viewed the possibility of five years’ probation as onerous enough to make an otherwise petty offense 'serious,’ ” presumably the Court would not be willing to hold that the upper limit of only five years’ probation is light enough to make any serious offense “petty.” For I do not take the Court’s opinion to mean that in areas of economic and public health regulation such as tax, antitrust, and drug control, where probation is often granted, a trial judge could deny a defendant’s demand for a jury trial by stating at the outset his intention to grant probation with a maximum of six months’ imprisonment on violation of its terms. I raise the possibility only because I think it shows that Congress enacted the probation system quite without regard to the “petty-serious” crime distinction, intending the system to have no impact on legislative judgments as to the relative seriousness of classes of crimes generally.

In view of this background, the fact that Congress could not, in all events, limit the right to a jury trial by the use of statutory “definitions,” and the dangers noted above in allowing a six-months-plus sentence to be imposed without a jury, I would stand by this Court’s decision in Gheff, supra, and say that six months is the maximum permissible nonjury sentence, whether served on probation or in prison, or both. Thus, only a two months’ jail term could be imposed in federal courts, for instance, if probation were revoked after four months. I dissent from the Court’s opinion holding otherwise.

Mr. Justice Black,

with whom Mr. Justice Douglas joins, dissenting.

I cannot say what is and what is not a “petty crime.” I certainly believe, however, that where punishment of as much as six months can be imposed, I could not classify the offense as “petty” if that means that people tried for it are to be tried as if we had no Bill of Rights. Art. Ill, § 2, of the Constitution provides that:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .”

And in Amendment VI it is provided that:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

Neither of these provisions gives any support for holding that a defendant charged with a crime is not entitled to a jury trial merely because a court thinks the crime is a “petty” one. I do not deny that there might possibly be some offenses charged for which the punishment is so minuscule that it might be thought of as petty. But to my way of thinking, when a man is charged by a governmental unit with conduct for which the Government can impose a penalty of imprisonment for any amount of time, I doubt if I could ever hold it petty. (See my dissent in Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216, 223.) Nor do I take any stock in the idea that by naming an offense for which a man can be imprisoned a “contempt,” he is any the less charged with a crime. See Green v. United States, 356 U. S. 165, 193 (dissenting opinion), and United States v. Barnett, 376 U. S. 681, 724 (dissenting opinion). Those who commit offenses against courts should be no less entitled to the Bill of Rights than those who commit offenses against the public in general.

For these reasons I dissent from the Court’s holding that the petitioner in this case is not entitled to a trial by jury.

       Congress has provided for a jury trial in certain cases of criminal contempt. See, e. g., 18 U. S. C. §§ 402, 3691, 3692. Section 3691 provides for a jury trial in contempts involving willful disobedience of court orders where the “act or thing done or omitted also constitutes a criminal offense under any Act of Congress, or under the laws of any state The present case falls within an exception to that rule for eases involving disobedience of any court order “entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.”

       If the statute creating the offense specifies a maximum penalty, then of course that penalty is the relevant criterion. See Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968).

       The Court in Cheff relied on 18 U. S. C. § 1, which defines a petty offense as “[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both . . . .”

       If imposition of sentence is suspended, the court may upon revocation of probation “impose any sentence which might originally have been imposed.” 18 U. S. C. § 3653. Under Cheff, that sentence would be limited to six months’ imprisonment.

       “[W]e are constrained, to view the [contempt] proceedings here as equivalent to a procedure to prosecute a petty offense, which under our decisions does not require a jury trial. . . . According to 18 U. S. C. § 1 (1964 ed.), ‘[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months’ is a ‘petty offense.’ Since Cheff received a sentence of six months’ imprisonment . . . , and since the nature of criminal contempt, an offense sui generis, does not, of itself, warrant treatment otherwise . . . , Cheff’s offense can be treated only as ‘petty’ in the eyes of the statute and our prior decisions. We conclude therefore that Cheff was properly convicted without a jury.” Cheff v. Schnackenberg, supra, at 379-380.

       Petitioner is required to make monthly reports to his probation officer, associate only with law-abiding persons, maintain reasonable hours, work regularly, report all job changes to his probation officer, and not leave the probation district without the permission of his probation officer.

       If its onerous conditions multiplied, probation could be even more restrictive than the emerging prison work-release programs.

       See the appendix to the Government’s brief before this Court for a survey of state probation law and practices.

       The actual question could never arise, of course, under the Court’s present practice of looking, in noncontempt cases, to the statute for the maximum penalty that could be imposed, rather than the sentence actually meted out, for its determination that a jury is or is not required.


author: Per Curiam.

text:
    THOMPSON v. TRAVELERS INSURANCE CO. et al.
    No. 1230.
    Decided May 19, 1969.

      T. Eugene Thompson, appellant, pro se.

      Oscar C. Adamson II and J. Neil Morton for appellees Travelers Insurance Co. et al.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    FRYAR v. OKLAHOMA et al.
    No. 730,
    Misc.
    Decided May 19, 1969.

      G. T. Blankenship, Attorney General of Oklahoma, and H. L. McConnell, Assistant Attorney General, for appellees.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Criminal Appeals of Oklahoma for further consideration in light of Smith v. Hooey, 393 U. S. 374.


text:
    JONES v. ILLINOIS BY ITS ELECTORAL BOARD.
    No. 1173.
    Decided May 19, 1969.

      William J. Scott, Attorney General of Illinois, and Francis T. Crowe, Assistant Attorney General, for appellee.
   Per Curiam.

The decision of the Illinois Supreme Court having been rendered prior to our decision in Moore v. Ogilvie, 394 U. S. 814, which overruled MacDougall v. Green, 335 U. S. 281, the judgment is vacated and the cause remanded so that it can be reconsidered in light of the changed circumstances.

Mr. Justice Harlan and Mr. Justice Stewart would affirm the judgment.


text:
    BUCKLEY et al., dba BUCKLEY’S AUTO WRECKING v. OHIO BY BARBUTO.
    No. 1209.
    Decided May 19, 1969.

      Edward D. Wyner for appellants.

      Paul W. Brown, Attorney General of Ohio, pro se, and Robert D. Macklin, Assistant Attorney General, for the Attorney General of Ohio, and James V. Barbuto, pro se, appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


author: Mr. Justice Brennan Mr. Justice Black,

text:
    CRANE v. CEDAR RAPIDS & IOWA CITY RAILWAY CO.
    No. 791.
    Argued April 24, 1969.
    Decided May 26, 1969.

      E. Barrett Prettyman, Jr., argued the cause for petitioner. With him on the briefs were John B. Halloran and James L. Alfveby.

      William M. Dallas argued the cause for respondent. With him on the brief was John F. Gaston.

      Edward J. Hickey, Jr., and James L. Highsaw, Jr., filed a brief for the Railway Labor Executives' Assn, as amicus curiae urging reversal.
   Mr. Justice Brennan

delivered the opinion of the Court.

The question in this case is whether a State may make the defense of contributory negligence available to a railroad sued by a nonemployee for damages for personal injuries caused by the railroad’s failure to maintain its freight cars “with couplers coupling automatically by impact/’ as required by § 2 of the Federal Safety Appliance Act of 1893, 27 Stat. 531, 45 U. S. C. § 2.

Petitioner was in the employ of Cargill, Inc., at its Cedar Rapids, Iowa, meal house and elevator on the line of respondent railroad. Petitioner’s duties were to move, weigh, and load freight cars spotted by respondent on Cargill’s siding track. He was working on the top of the third of a string of six cars when a coupler malfunctioned and caused the first two cars to break away. Petitioner dismounted and ran to the runaway cars. He climbed to the roof of one and was attempting to apply its brake when he fell 12 to 14 feet to a cement apron between the tracks and suffered severe injuries. He brought this action in tort in the Iowa District Court of Linn County. The only claim submitted to the jury was that petitioner’s injuries resulted from respondent’s maintenance, in violation of § 2, of a freight car with a defective coupler. Over petitioner’s objection the jury was instructed in accordance with settled Iowa tort law that it was petitioner’s burden “to establish by a preponderance or the greater weight of the evidence . . . that [he] was free from contributory-negligence,” defined as “negligence on the part of a person injured . . . which contributed in any way or in any degree directly to the injury.” The jury returned a verdict for respondent railroad. The Supreme Court of Iowa affirmed, - Iowa -, 160 N. W. 2d 838 (1968). We granted certiorari. 393 U. S. 1047 (1969). We affirm.

The Safety Appliance Act did not create a federal cause of action for either employees or nonemployees seeking damages for injuries resulting from a railroad’s violation of the Act. Moore v. C. & O. R. Co., 291 U. S. 205 (1934). Congress did, however, subsequently provide a cause of action for employees: The cause of action created by the Federal Employers’ Liability Act of 1908, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., embraces claims of an employee based on violations of the Safety Appliance Act. In such actions, the injured employee is required to prove only the statutory violation and thus is relieved of the burden of proving negligence, O’Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384 (1949); Coray v. Southern Pac. R. Co., 335 U. S. 520 (1949); Affolder v. New York, C. & St. L. R. Co., 339 U. S. 96 (1950). He is not required to prove common-law proximate causation but only that his injury resulted “in whole or in part” from the railroad’s violation of the Act, 45 U. S. C. § 51; Rogers v. Missouri Pac. R. Co., 352 U. S. 500 (1957), and the railroad is deprived of the defenses of contributory negligence and assumption of risk, 45 U. S. C. §§ 53, 54.

In contrast, the nonemployee must look for his remedy to a common-law action in tort, which is to say that he must sue in a state court, in the absence of diversity, to implement a state cause of action. Fairport, P. & E. R. Co. v. Meredith, 292 U. S. 589 (1934). “[T]he right to recover damages sustained . . . through the breach of duty sprang from the principle of the common law . . . and was left to be enforced accordingly . . . Moore v. C. & O. R. Co., supra, at 215. In consequence, we have consistently held that under the present statutory scheme the definition of causation and the availability of the defenses of assumption of risk and contributory negligence are left to state law. Schlemmer v. Buffalo, R. & P. R. Co., 220 U. S. 590 (1911); Fairport, P. & E. R. Co. v. Meredith, supra, at 598; Moore v. C. & O. R. Co., supra, at 215; Tipton v. Atchison, T. & S. F. R. Co., 298 U. S. 141 (1936). Our examination of the relevant legislative materials convinces us that this line of decisions should be reaffirmed.

We recognize the injustice of denying recovery to a nonemployee which would not be denied to an employee performing the same task in the same manner as did petitioner. But it is for Congress to amend the statute to prevent such injustice. It is not permitted the Court to rewrite the statute.

Affirmed.

Mr. Justice Black,

with whom The Chief Justice and Mr. Justice Douglas join,

dissenting.

Congress, not the States, passed the Federal Safety Appliance Act of 1893, 27 Stat. 531, 45 U. S. C. § 1 et seq. Consequently, I think the question of a railroad’s liability to a person injured by a violation of that Act is a federal, not a state, question. Although it is true that several old cases, cited by the Court, gave the Safety Appliance Act a different interpretation, and left injured workers to whatever remedies they might have under state law, the premises of these old decisions have been thoroughly and I think properly discredited. See J. I. Case Co. v. Borak, 377 U. S. 426 (1964).

The Federal Employers’ Liability Act of 1908, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., allows railroad employees injured by violations of the Safety Appliance Act to recover against their employer, and contributory negligence of the employee is not a defense. I cannot believe that Congress intended that contributory negligence should become a defense simply because the action is brought by a nonemployee, when an employee doing the same work and subjected to the same violation of the Safety Appliance Act could clearly recover. For this reason I would hold that under federal law contributory negligence is not a defense in this case and reverse the judgment of the Iowa Supreme Court.

       Section 2 of the Safety Appliance Act provides:
      “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” 45 U. S. C. § 2.

       In addition to the Federal Safety Appliance Act and the Federal Employers’ Liability Act, see H. R. Rep. No. 1386, 60th Cong., 1st Sess., 6 (1908).

       See Louisell & Anderson, The Safety Appliance Act and the FELA: A Plea for Clarification, 18 Law & Contemp. Prob. 281 (1953).


author: Mr. Justice Stewart

text:
    SULLIVAN, TAX COMMISSIONER OF CONNECTICUT, et al. v. UNITED STATES et al.
    No. 610.
    Argued April 2, 1969.
    Decided May 26, 1969.

      F. Michael Ahern, Assistant Attorney General of Connecticut, argued the cause for appellants. With him on the briefs were Robert K. Killian, Attorney General, and Ralph G. Murphy and Richard A. Gitlin, Assistant Attorneys General.

      Harris Weinstein argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, and Stuart A. Smith.

    Briefs of amici curiae in support of appellants were filed by the State of Louisiana and by the Attorneys General for their respective States as follows: MacDonald Gallion of Alabama, Duke W. Dunbar of Colorado, Robert K. Killian of Connecticut, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Kent Frizzell of Kansas, John B. Breckinridge of Kentucky, James S. Erwin of Maine, Francis B. Burch of Maryland, Robert H. Quinn of Massachusetts, Frank J. Kelley of Michigan, Douglas M. Head of Minnesota, John C. Danforth of Missouri, Clarence A. H. Meyer of Nebraska, Harvey Dickerson of Nevada, Arthur J. Sills of New Jersey, Robert B. Morgan of North Carolina, Helgi Johanneson of North Dakota, Paul W. Brown of Ohio, G. T. Blankenship of Oklahoma,
      Robert Y. Thornton of Oregon, William C. Sennett of Pennsylvania, Herbert F. DeSimone of Rhode Island, Gordon Mydland of South Dakota, George F. McCanless of Tennessee, Crawford C. Martin of Texas, Vernon B. Romney, Jr., of Utah, Robert Y. Button of Virginia, Slade Gorton of Washington, and James E. Barrett of Wyoming; by Gary K. Nelson, Attorney General, for the State of Arizona; by Thomas C. Lynch, Attorney General, Ernest P. Goodman, Assistant Attorney General, and Philip W. Marking, Deputy Attorney General, for the State of California, and William J. Scott, Attorney General, for the State of Illinois; and by Louis J. Lefkowitz, Attorney General, Ruth Kessler Toch, Solicitor General, and Robert W. Bush, Assistant Attorney General, for the State of New York.

      Benjamin M. Wall filed a brief for Stanley Fissel as amicus curiae in support of the United States et al.
   Mr. Justice Stewart

delivered the opinion of the Court.

The issue raised by this appeal is whether § 514 of the Soldiers’ and Sailors’ Civil Relief Act prohibits Connecticut from imposing its sales and use taxes on servicemen stationed there who are residents or domicil-iarios of other States. The United States instituted this action in federal court against the appropriate Connecticut officials on behalf of the aggrieved servicemen. The District Court entered a declaratory judgment that the federal statute prevents collection of the sales and use taxes from such servicemen, and the Court of Appeals affirmed. We noted probable jurisdiction of this appeal.

The sales and use taxes imposed by the Connecticut Education, Welfare and Public Health Tax Act are typical of those enacted by the vast majority of States. A tax of 3yz% is levied on the gross receipts from sales of tangible personal property at retail within the State. Although the retailer is liable for payment of the tax, he is required to pass it on to purchasers by adding it to the original sales price of all items sold. The use tax is imposed at the same rate on “the storage, use or other consumption” in the State of tangible personal property purchased from any retailer. The use tax provisions — designed to reach the use or consumption in the State of property purchased outside it — exempt all transactions which are subject to the sales tax. And while the consumer is liable directly to the State for the use tax, he can discharge his liability by paying it to the retailer if the retailer is “engaged in business” within the State and therefore required to collect the use tax. The use tax is also imposed upon purchasers of motor vehicles, boats, or airplanes from nonretailers. The amount of any tax under the Act is reduced by whatever sales or use tax has already been collected “by any other state or political subdivision thereof.” Finally, the Act commands that all proceeds of the sales and use taxes “shall be allocated to and expended for public health, welfare and education purposes only.”

By stipulation and affidavits in the District Court, the parties offered some examples of the imposition of these taxes on naval personnel stationed in Connecticut but domiciled elsewhere. Lieutenant Schuman, a Nebraska domiciliary, and Commander Carroll, a Michigan domiciliary, bought used motorboats from nonretailers in Connecticut and were assessed a use tax. Schuman paid the tax under protest, and Carroll has refused to pay, each claiming that he is exempt under the Soldiers’ and Sailors’ Civil Relief Act. Lieutenant Commander Shaffer and Commander Foster, who are domiciled in Pennsylvania and Texas respectively, each purchased a new car; the Connecticut retailer collected and paid the sales tax. Foster registered his car in Texas, which also exacted a sales or use tax. Finally, Commander Roloff, whose home State is Wisconsin, purchased a used car in Florida and paid that State a 2% sales tax. When he registered the car in Connecticut, he was assessed and paid the use tax, with credit for the Florida sales tax.

As enacted in 1942, § 514 of the Soldiers’ and Sailors’ Civil Relief Act provided that for purposes of any state “taxation in respect of any person, or of his [personal] property, income, or gross income,” he shall not be deemed to have lost his residence or domicile in his home State or acquired a residence in any other State “solely by reason of being absent [from home] in compliance with military or naval orders.” Clarifying language was added in 1944 to provide that for purposes of taxation in respect of personal property, the “personal property shall not be deemed to be located or present in or to have a situs for taxation in such State.” Also in 1944 Congress enacted a special subsection for automobiles: servicemen are exempt from “licenses, fees, or excises imposed in respect of motor vehicles or the use thereof” if they have paid such levies in their home States. Finally, in 1962, Congress added the provision that § 514 applies to property in any tax jurisdiction other than the serviceman’s home State, “regardless of where the owner may be serving” in compliance with military orders.

We think it clear from the face of § 514 that state taxation of sales to servicemen is not proscribed. A tax on the privilege of selling or buying property has long been recognized as distinct from a tax on the property itself. And while § 514 refers to taxes “in respect of” rather than “on” personal property, we think it an overly strained construction to say that taxation of the sales transaction is the same as taxation “in respect of” the personal property transferred. Nor does it matter to the imposition of the sales tax that the property “shall not be deemed to be located or present in or to have a situs for taxation” in Connecticut. The incidence of the sales tax is not the property itself or its presence within the State. Rather it is the transfer of title for consideration, a legal act which can be accomplished without the property ever entering the State. Had Congress intended to include sales taxes within the coverage of § 514, it surely would not have employed language so poorly suited to that purpose as “taxation in respect of the personal property.”

It is contended on behalf of the servicemen that, even if § 514 does not encompass sales taxes, at least it prohibits taxation of the use of personal property. Not only are use taxes said to fall literally within the meaning of the phrase “taxation in respect of the personal property,” but § 514 specifically refers in two places to property “or the use thereof.” Moreover, it is argued, the sole jurisdictional basis of the use tax is the location of the personal property in Connecticut; yet imposition of a tax with such incidence on a serviceman contravenes the command of § 514 that his personal property “shall not be deemed to be located or present in or to have a situs for taxation in such State.” While we agree that use taxes are not so clearly excluded by the language of § 514 as are sales taxes, neither do we believe that they are clearly included. And consideration of the purpose and legislative history of § 514 along with its language and other factors has led us to the conclusion that Congress did not intend to free servicemen stationed away from home from the sales or use taxes of the host State.

The legislative history of the 1942 enactment and the 1944 and 1962 amendments of § 514 reveals that Congress intended the Act to cover only annually recurring taxes on property — the familiar ad valorem personal property tax. Thus, the reports advert to the possibility that servicemen ordered to move around the country— as they were increasingly during World War II — might have their property taxed by more than one State “within the same calendar year.” And the reports throughout refer explicitly to “personal-property taxes on property.” The language of these reports is simply irreconcilable with the proposition that Congress thought the Act would apply to a tax which, like the sales or use tax, does not apply annually to all personal property within the State but is imposed only once and then only when there has been a retail sales transaction.

The absence of any reference to sales and use taxes in the history of § 514 is particularly illuminative of legislative intent when considered in the light of Congress’ full awareness of such state taxes and their relationship to federal interests. Sales and use taxes were prevalent by 1942, and Congress had dealt specifically with them only two years earlier. In the 1940 Buck Act, Congress provided that the States have “full jurisdiction and power to levy and collect” sales and use taxes in “any Federal area,” except with respect to the sale or use of property sold by the United States or its instrumentalities through commissaries, ship’s stores, and the like. If nothing else, this statute illustrates that Congress in 1942 was fully cognizant of state sales and use taxes and identified them by name when it wanted to deal with them. Moreover, it is unlikely that Congress, which had in 1940 expressly authorized sales and use taxation of servicemen everywhere on federal military reservations except post exchanges, would two years later have exempted so many of them from such taxes by means of such imprecise language as that of § 514 of the Soldiers’ and Sailors’ Civil Relief Act. And since servicemen can apparently purchase all the necessities and many of the luxuries of life tax-free at military commissaries, Congress may reasonably have considered the occasional sales and use taxes that servicemen might have to pay an insignificant burden, as compared with annual ad valorem property taxes, and consequently not deserving of the same exemption.

Section 514 does not relieve servicemen stationed away from home from all taxes of the host State. It was enacted with the much narrower design “to prevent multiple State taxation of the property.” And the substantial risk of double taxation under multi-state ad valorem property taxes does not exist with respect to sales and use taxes. Like Connecticut, nearly every State which levies such taxes provides a credit for sales or use taxes paid on the transaction to another State. Of course it is true, as we held in Dameron v. Brodhead, 345 U. S. 322, that § 514 prevents imposition of ad valorem property taxes even though the serviceman’s home State does not tax the property. But the predominant legislative purpose nonetheless remains highly relevant in determining the scope of the exemption, and the absence of any significant risk of double taxation under state sales and use taxes generally is therefore strong evidence of congressional intent not to include them in §514.

The language of § 514 does not undercut our conclusion that Congress did not propose to exempt servicemen from sales and use taxes. The appellees, like the courts below, make much of the reference at two places in the section to property “or the use thereof.” This phrase first appeared in the 1944 addition of subsection (2) (b):

“When used in this section, . . . (b) the term 'taxation’ shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State ... of which the person is a resident or in which he is domiciled has been paid.”

The second reference to “use” did not appear until the addition to subsection (1) of the following sentence in 1962:

“Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders . . . .”

We think that, in light of the clear indications of congressional intent discussed above, the most sensible inference to be drawn from this language is that the only taxes on the use of property from which servicemen are exempted are the special registration taxes imposed annually by all States on the use of motor vehicles. Indeed, this interpretation is supported by the structure of § 514 itself. There is no reference to “use” of property in those portions of subsection (1) which set out the basic exemption and in which Congress would naturally have been expected to mention use taxes had it meant to include them. Moreover, subsection (2)(b) does not say that for purposes of § 514 “taxation” includes “licenses, fees, or excises” on the use of all personal property except those in respect of motor vehicles for which such fees have not been paid at home. Rather it says that “taxation” includes such levies only on motor vehicles when they have been paid at home. Thus, as we held in California v. Buzard, 382 U. S. 386, subsection (2) (b) does not encompass ordinary revenue-raising excise or use taxes, but is limited to “those taxes which are essential to the functioning of the host State’s licensing and registration laws in their application to the motor vehicles of nonresident servicemen.” Id., at 395. The Court held in Buzará that § 514 exempted servicemen from the California tax on automobiles, not because it was an excise tax on use covered by subsection (2)(b), but rather because it was not such a tax. The so-called “license fee” there in question was an annual tax in the amount of 2% of the assessed market value of the car — a levy which was indistinguishable from the annually recurring ad valorem taxes that § 514 was designed to cover.

It is thus evident that in subsection (2) (b) Congress was dealing solely with a unique form of state “tax”— the motor vehicle registration fee. Because such fees are not always clearly classifiable as property taxes, servicemen would not be exempted from many of them by subsection (1) of § 514. Since annually recurring license fees raise much the same risk of double taxation to transitory military personnel as do property taxes, Congress evidently decided in 1944 to extend the exemption of § 514 to include motor vehicle registration fees as well as property taxes. From 1944 to 1962 the oaly reference in § 514 to “use” of property was found in subsection (2)(b). And, in view of the narrow purpose of that subsection and the absence for 20 years of any other reference to “use” in § 514, we cannot believe the repetition of that word in the 1962 amendment — described by Congress as a mere clarification of the existing law — can be deemed to have added all use taxes to the coverage of the statute. The 1962 amendment merely reflected the prior reference to the “use” of motor vehicles in subsection (2)(b).

Finally, we find unpersuasive the appellees’ contention that, since the Connecticut use tax can be applied only with respect to personal property used within the State, its imposition on servicemen away from home cannot be squared with the declaration of § 514 that “personal property shall not be deemed to be located or present in or to have a situs for taxation in such State.” That clause is modified by the opening words of the sentence — “[f]or the purposes of taxation in respect of the personal property.” Section 514, therefore, does not in terms relieve servicemen from every state tax which is somehow dependent on the presence of personal property within the State. Rather, it provides only that a State cannot justify imposing the taxes to which § 514 was initially intended to apply — annually recurring ad valorem property taxes — on the ground of the property’s presence within the State.

This construction is confirmed by the explanation which Congress itself gave for the addition in 1944 of the language on which the appellees rely:

“The purpose of the proposed legislation is to clarify the intent of section 514 of the Soldiers’ and Sailors’ Civil Relief Act .... When that provision of law was added to the act to relieve persons in service from liability of double taxation by being moved from one State to another under orders, it was intended that it should apply to personal-property taxes as well as to income taxes. As presently constituted, it primarily affects taxes in respect to income and other taxes based on residence or domicile, but it does not prevent the State of ‘temporary residence’ from taxing tangible personal property actually located in such State so long as the tax does not depend on residence or domicile. A few States have taken the position that tangible personal property of military personnel who are only temporarily within their jurisdiction does not acquire a situs for taxation, but it has been held that section 514 of the act as now written does not affect the right of a State to assess personal-property taxes on property within its jurisdiction.”

The 1944 amendment, therefore, had only the limited purpose “to clarify” Congress’ original intent to cover “personal-property taxes on property,” not to expand the exemption in a manner which would include sales or use taxes.

For these reasons we hold that § 514 of the Soldiers’ and Sailors’ Civil Relief Act does not exempt servicemen from the sales and use taxes imposed by Connecticut. Accordingly, the judgment is Reversed.

       As added by § 17 of the Soldiers’ and Sailors’ Civil Relief Act Amendments of 1942, 56 Stat. 777, and as amended, 58 Stat. 722, 76 Stat. 768, 50 U. S. C. App. § 574.

       Although the issue was raised in the District Court, the appellants no longer dispute the right of the United States to bring this action on behalf of the servicemen in federal court. See Department of Employment v. United States, 385 U. S. 355, 358; United States v. Arlington County, 326 F. 2d 929.
      In this Court the United States has presented arguments prepared by officers of the Department of Justice in support of the judgment below. The Solicitor General and the Assistant Attorney General in charge of the Tax Division of the Department of Justice have informed the Court, however, that they have not been persuaded by those arguments, and that they do not believe that § 514 was intended to apply to the ordinary retail sales tax and concomitant use tax now imposed by most of the States. For other examples of such divergence of opinion among representatives of the United States before this Court, see De Laval Steam Turbine Co. v. United States, 284 U. S. 61, 67-68; Kornhauser v. United States, 276 U. S. 145, 147-151.

       270 F. Supp. 236. The District Court later amended its judgment to permit Connecticut to continue to collect sales and use taxes from nonresident servicemen, provided that the amounts collected would be refunded if the judgment was ultimately sustained.

       398 F. 2d 672.

       393 U. S. 1012.

       Conn. Gen. Stat. Rev. §§ 12-406 to 12-432a.

       See J. Hellerstein, State and Local Taxation Cases and Materials 15 (3d ed. 1969). 35 States have filed briefs in this case in support of the position of Connecticut.

       § 12-408 (1).' This section also imposes the sales tax on “the privilege of . . . transferring occupancy of any room or rooms in a hotel or lodging house.”

       §12-408 (2).

       § 12-411 (1).

       See, e. g., Stetson v. Sullivan, 152 Conn. 649, 652-653, 211 A. 2d 685, 686; Avco Mfg. Corp. v. Connelly, 145 Conn. 161, 170-171, 140 A. 2d 479, 484; Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 299-300, 57 A. 2d 128, 130-131.

       §12-413 (1).

       §§12-411 (2), (3).

       § 12-431.

       §12-430 (5).

       § 12-432.

       Lieutenant Schuman joined the United States as a party plaintiff in the District Court, seeking to represent the class of all servicemen or former servicemen from whom Connecticut had collected or threatened to collect any sales or use tax. The complaint was dismissed as to him for lack of jurisdiction, on the grounds that the requisite jurisdictional amount was not alleged to be in controversy and that the Eleventh Amendment forbids a suit by a private individual against a State in the federal courts. 270 F. Supp. 236, 246-247.

       Foster’s situation is not entirely clear. His affidavit states that officials of the Connecticut Department of Motor Vehicles informed him that he was required to pay a use tax but the tax actually paid was identified on the dealer’s invoice as a sales tax. The latter seems to be correct, since the purchase was from a Connecticut retailer. Texas officials told Foster he would have to pay a sales tax in order to register the car in that State. The Texas tax collector’s receipt does not identify whether the payment was a sales or use tax, however, and under the Texas statutes it appears more likely that it was the latter. Tex. Rev. Civ. Stat., Art. 6.01, provides that the motor vehicle sales tax applies only to sales in the State, while the use tax, in the same amount, applies to out-of-state sales of motor vehicles for use in Texas.

       56 Stat. 777.

       The word “personal” was interpolated by the 1944 amendment. 58 Stat. 722.

       76 Stat. 768.

       Section 514, as set forth in 50 U. S. C. App. § 574, now reads in its entirety as follows:
      “(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent. For the purposes of taxation in respect of the personal property, income, or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such pierson is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district. Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders: Provided, That nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942.
      “(2) When used in this section, (a) the term ‘personal property’ shall include tangible and intangible property (including motor vehicles), and (b) the term ‘taxation’ shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State, Territory, possession, or District of Columbia of which the person is a resident or in which he is domiciled has been paid.”

       See, e. g., N. Jacoby, Retail Sales Taxation 3-4 (1938). And see n. 28, infra.

       The Connecticut statute defines a “sale” generally as “[a]ny transfer of title ... for a consideration.” § 12-407 (2) (a). And see Avco Mfg. Corp. v. Connelly, 145 Conn. 161, 172, 140 A. 2d 479, 484-485. The term also includes a transaction in which the right of possession is transferred but the seller retains title as security. §12-407 (2) (f).

       See Conn. Gen. Stat. Rev. § 42ar-2-401 (3).

       S. Rep. No. 1558, 77th Cong., 2d Sess., 11 (1942); H. R. Rep. No. 2198, 77th Cong., 2d Sess., 6 (1942).

       S. Rep. No. 959, 78th Cong., 2d Sess., 1 (1944). See also the reference to “personal property taxes” in H. R. Rep. No. 1514, 78th Cong., 2d Sess., 2 (1944). The reports on the 1942 Act talked about “taxation of the property” and the possibility that “the personal property . . . may become hable for taxes in several States.” S. Rep. No. 1558, supra, n. 26, at 11; H. R. Rep. No. 2198, supra, n. 26, at 6. At the time of the 1962 Amendment, the reports continued to describe the taxes covered by § 514 as those “imposed upon property of a serviceman.” S. Rep. No. 2182, 87th Cong., 2d Sess., 1 (1962); H. R. Rep. No. 2126, 87th Cong., 2d Sess., 1 (1962).

       It has frequently been said that a use tax, like a sales tax, is an excise or privilege tax different in kind from a tax on property. E. g., Monamotor Oil Co. v. Johnson, 292 U. S. 86, 93; Bowman v. Continental Oil Co., 256 U. S. 642, 649. As the Connecticut Supreme Court has described the very tax here in question, “The use tax is not a tax on property but is described in the act as, and in fact is, in the nature of an excise tax upon the privilege of using, storing or consuming property.” Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 307, 57 A. 2d 128, 134. This distinction may sometimes be more formal than actual, cf. Henneford v. Silas Mason Co., 300 U. S. 577, 582, 586. But its long-time general acceptance supports the conclusion that when Congress talked about taxes on, or even “in respect of,” personal property, it did not thereby include use taxes.
      This conclusion is further buttressed by the close interconnection of sales and use taxes. See generally 3 State Taxation of Interstate Commerce, H. R. Rep. No. 565, 89th Cong., 1st Sess., 607-620 (1965). As a complement to the sales tax and an integral part of a single broad pattern of excise taxes, the use tax is not likely to have been grouped by Congress with taxes “in respect of the personal property.”

       By 1938, more than half the States had adopted sales and use taxes. See 3 State Taxation of Interstate Commerce, supra, n. 28, at 609.

       54 Stat. 1059, now 4 U. S. C. §§ 105-110.

       4 U. S. C. § 105 (a) states:
      “No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.”

       4 U. S. C. § 107 states:
      “(a) The provisions of sections 105 and 106 of this title shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof, or the levy or collection of any tax with respect to sale, purchase, storage, or use of tangible personal property sold by the United States or any instrumentality thereof to any authorized purchaser.
      “(b) A person shall be deemed to be an authorized purchaser under this section only with respect to purchases which he is permitted to make from commissaries, ship's stores, or voluntary unincorporated organizations of personnel of any branch of the Armed Forces of the United States, under regulations promulgated by the departmental Secretary having jurisdiction over such branch.”

       The stipulation filed in the District Court contained the following:
      “11. Most of the day-to-day purchases of tangible personal property, which includes food, clothing, toilet articles and other personal items, made by servicemen in Connecticut are made from military exchanges, and commissaries operated by the armed services on military installations.
      “12. Sales made by military exchanges and commissaries operated by the armed services on military installations to servicemen are not subject to any tax under the Tax Act.”

       Conversely, the administrative burden which the States would have to shoulder if § 514 applied to sales and use taxes is potentially far greater than that attributable to the exemption from ad valorem property taxes. Whereas property taxation involves only the property owner and the tax officials, sales and use taxation usually requires participation and accounting by the seller as well. And the accounting difficulties which retailers and the States would encounter in determining for thousands of transactions which customers were properly exempt under § 514 are considerably greater than any that Congress can be thought to have envisioned for the exemption from property taxes alone.

       S. Rep. No. 1558, supra, n. 26, at 11; H. R. Rep. No. 2198, supra, n. 26, at 6. This purpose was restated in the 1944 reports: “When the Soldiers’ and Sailors’ Civil Relief Act of 1940 was amended by the act of October 6, 1942, a provision was written into the act to relieve persons in the service from liability of double taxation by being moved from one State to another under orders.” H. R. Rep. No. 1514, supra, n. 27, at 2. And see S. Rep. No. 959, supra, n. 27, at 1.

       See Prentice-Hall State and Local Tax Service, All States Unit, ¶ 92,963.

       See also Snapp v. Neal, 382 U. S. 397, 398: “We reverse on the authority of our holding today in Buzará that the failure to pay the motor vehicle ‘license, fee, or excise’ of the home State entitles the host State only to exact motor vehicle taxes qualifying as ‘licenses, fees, or excises’; the ad valorem tax, as the Mississippi Supreme Court acknowledged, is not such an exaction.”

       Indeed, the Court in Buzará emphasized that the tax had been adopted by California “as a substitute for local ad valorem taxation of automobiles.” 382 U. S., at 395, n. 9. California’s sales and use taxes were not involved in that case.

       See California v. Buzard, 382 U. S., at 394, n. 8, for the various methods by which States impose registration or license fees on motor vehicles.

       “This bill amends the tax immunity provisions of the Soldiers' and Sailors’ Civil Relief Act ... so as to clarify a situation which sometimes results in taxation contrary to the intent of the act. More specifically, the bill provides that where a serviceman is absent from his residence or domicile solely by reason of compliance with military or naval orders, the tax immunity provision of existing law shall apply with respect to his personal property, or the use thereof, within any tax jurisdiction other than his State of residence or domicile, regardless of where such serviceman may be located in compliance with such orders.” (Emphasis supplied.) S. Rep. No. 2182, supra, n. 27, at 1.

       S. Rep. No. 959, supra, n. 27, at 1.