author: Mr. Justice Marshall MR. Justice Harlan, Mr. Justice Douglas,

text:
    AMERICAN COMMERCIAL LINES, INC., et al. v. LOUISVILLE & NASHVILLE RAILROAD CO. et al.
    No. 797.
    Argued April 23-24, 1968.
    Decided June 17, 1968.

      Leonard S. Goodman and Harry C. Ames, Jr., argued the cause for appellants in all cases. With Mr. Goodman on the brief for appellant in No. 809 were Robert W. Ginnane and Fritz R. Kahn. With Mr. Ames on the brief for appellants in No. 797 were /. Raymond Clark,

      Robert E. Webb, and T. Randolph Buck. Peter T. Beardsley, Bryce Rea, Jr., Thomas M. Knebel, and Nuel D. Belnap filed briefs for appellants in No. 804. A. Alvis Layne and Robert L. Wright filed briefs for appellant in No. 808.

      Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Turner, and Howard E. Shapiro. Carl Helmetag, Jr., argued the cause for appel-lee railroads in all eases. With him on the brief were Stanfield Johnson, Elbert R. Leigh, James H. McGlothlin, James A. Bistline, Thormund A. Miller, William M. Moloney, Harry J. Breithaupt, Donal L. Turkal, Joseph E. Stopher, and R. Lee Blackwell.

      Together with No. 804, American Trucking Assns., Inc., et al. v. Louisville & Nashville Railroad Co. et al., No. 808, American Waterways Operators, Inc. v. Louisville & Nashville Railroad Co. et al., and No. 809, Interstate Commerce Commission v. Louisville & Nashville Railroad Co. et al., also on appeal from the same court.

   Mr. Justice Marshall

delivered the opinion of the Court.

The basic issue in these cases is whether the action of the Interstate Commerce Commission in disallowing a rate reduction proposed by the appellee railroads, 326 I. C. C. 77 (1965), was consistent with the provisions of § 15a (3) of the Interstate Commerce Act, 49 U. S. C. § 15a (3), added by 72 Stat. 572 (1958), which governs ratemaking in situations involving intermodal competition. A subsidiary but related issue is whether the Commission adequately articulated its reasons for disallowing the proposed rate. A statutory three-judge court, upon appeal of the Commission’s decision by the appellee railroads, held that the Commission’s decision was erroneous on both of the foregoing grounds. 268 F. Supp. 71 (D. C. W. D. Ky. 1967). Because of the importance of § 15a (3) as the primary guide to ICC resolution of rate controversies involving intermodal competition, we noted probable jurisdiction of the appeal taken by the Commission and the competing carriers from the decision of the District Court. 389 U. S. 1032 (1968). For the reasons detailed below, we conclude that the District Court erred in its rejection of the Commission’s decision, and the grounds on which it was based, and we reverse.

I.

Since 1953 the movement of ingot molds from Neville Island and Pittsburgh, Pennsylvania, to Steelton, Kentucky, has been almost exclusively by combination barge-truck service, and since 1960 the overall charge for this service has been $5.11 per ton. In 1963 the Pennsylvania Railroad and the Louisville & Nashville Railroad lowered their joint rate for this same traffic from $11.86 to $5.11 per ton. The competing barge lines, joined by intervening trucking interests, protested to the ICC that the new railroad rate violated § 15a (3) of the Interstate Commerce Act because it impaired or destroyed the “inherent advantage” then enjoyed by the barge-truck service. The Commission thereupon undertook an investigation of the rate reduction.

In the course of the administrative proceedings that followed, the ICC made the following factual findings about which there is no real dispute among the parties. The fully distributed cost to the railroads of this service was $7.59 per ton, and the “long term out-of-pocket costs” were $4.69 per ton. The fully distributed cost to the barge-truck service was $5.19 per ton. The out-of-pocket cost of the barge-truck service was not separately computed, but was estimated, without contradiction, to be approximately the same as the fully distributed cost and higher, in any event, than the out-of-pocket cost of the railroads. The uncontroverted shipper testimony was to the effect that price was virtually the sole determinant of which service would be utilized, but that, were the rates charged by the railroads and the barge-truck combination the same, all the traffic would go to the railroads.

The railroads contended that they should be permitted to maintain the $5.11 rate, once it was shown to exceed the out-of-pocket cost attributable to the service, on the ground that any rate so set would enable them to make a profit on the traffic. The railroads further contended that the fact that the rate was substantially below their fully distributed cost for the service was irrelevant, since that cost in no way reflected the profitability of the traffic to them. The barge-truck interests, on the other hand, took the position that § 15a (3) required the Commission to look to the railroads' fully distributed costs in order to ascertain which of the competing modes had the inherent cost advantage on the traffic at issue. They argued that the fact that the railroads’ rate would be profitable was merely the minimum requirement under the statute. The railroads in response contended that inherent advantage should be determined by a comparison of out-of-pocket rather than fully distributed costs, and they produced several economists to testify that, from the standpoint of economic theory, the comparison of out-of-pocket, or incremental, costs was the only rational way of regulating competitive rates.

The ICC rejected the railroads’ contention that out-of-pocket costs should be the basis on which inherent advantage should be determined. The Commission observed that it had in the past regularly viewed fully distributed costs as the appropriate basis for determining which of two competing modes was the lower cost mode as regards particular traffic. It further indicated that the legislative history of § 15a (3) revealed that Congress had in mind a comparison of fully distributed costs when it inserted the reference to the National Transportation Policy into that section in place of language sought by the railroads. The Commission also emphasized that there was a rulemaking proceeding pending before it in which the whole question of the proper standard of costing in situations involving intermodal competition was being examined in depth, and stated that “a radical departure from the fully distributed cost norm” would not be justified on the basis of the record before it in this case.

Having decided to utilize a comparison between fully distributed costs to determine inherent advantage, the Commission then concluded that the rate set by the railroads would undercut the barge-truck combination’s ability to exploit its inherent advantage because the rate would force the competing carriers to go well below their own fully distributed costs to recapture the traffic from the railroads. Moreover, since the result sought by the railroads was general permission to set rates on an out-of-pocket basis, the Commission concluded that eventually the railroads could take all the traffic away from the barge-truck combination because the out-of-pocket costs of the former were lower than those of the latter and, therefore, in any rate war the railroads would be able to outlast their competitors. Accordingly, the Commission ordered that the railroads’ rate be canceled.

The District Court read the statute and its accompanying legislative history to reflect a congressional judgment that inherent advantage should be determined in most cases by a comparison of out-of-pocket costs and that, therefore, railroads should generally be permitted to set any individual rate they choose as long as that rate is compensatory. The court also held that the Commission had failed adequately to articulate its reasons for deciding that the proper way of determining which mode of transportation was the more efficient was by comparison of fully distributed costs rather than out-of-pocket costs. Although this latter holding appears first in its opinion, it is evident that it must logically follow its ruling on the meaning of § 15a (3), since if Congress in enacting that section had already decided that inherent advantage should be determined by reference to fully distributed costs, there would be no special burden on the Commission to justify its use of them.

h-l

This Court has previously had occasion to consider the meaning and legislative history of § 15a (3) of the Interstate Commerce Act in ICC v. New York, N. H. & H. R. Co., 372 U. S. 744 (1963) (“New Haven”), and both the ICC and the District Court have relied heavily on that decision as support for the conflicting results reached by them in these cases. Because the statute and its relevant legislative history were so thoroughly canvassed there, we shall not undertake any extended discussion of the same material here. Instead, we shall refer to that opinion for most of the relevant history.

So far as relevant here, § 15a (3) provides that:

“[r]ates of a carrier shall not be held up to a particular level to protect the traffic of any other mode of transportation, giving due consideration to the objectives of the national transportation policy declared in this Act.”

The National Transportation Policy, 49 U. S. C. preceding § 1, states that it is the intention of the Congress:

“to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this act, so administered as to recognize and preserve the inherent advantages of each . . . .”

The enactment of § 15a (3) in 1958 was due primarily to complaints by the railroads that the ICC had maintained rates at artificially high levels in order to protect competing modes from being driven out of business by railroad competition. The bill that eventuated in the language that is presently § 15a (3) originally provided that the ICC, in considering rate reductions, should, in a proceeding involving competition with another mode of transportation, “consider the facts and circumstances attending the movement of the traffic by railroad and not by such other mode.” (Emphasis added.) 372 U. S., at 754. This language was objected to strongly by both the ICC and representatives of those carriers with which the railroads were in competition. See Hearings on S. 3778 before the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess. (1958). The basic ground of objection was that by looking only to the effect of a rate reduction on the carrier proposing it, the ICC would be unable to protect the “inherent advantages” enjoyed by competing carriers on the traffic to which a rate reduction was to be applied.

Unfortunately, the meaning of the term “inherent advantage,” which is what the Commission is supposed to protect, is nowhere spelled out in the statute. The railroads argue, and the District Court held, that Congress intended by the term to refer to situations in which one carrier could transport goods at a lower incremental cost than another. The fallacy of this argument is that it renders the term “inherent advantage” essentially meaningless in the context of the language and history of § 15a (3).

Since the pricing of railroad services below out-of-pocket or incremental cost would result in a net revenue loss to the railroad on the carriage, the ICC could prohibit such practices without reference to the costs of any other competing carrier. And this is precisely what the language of the bill as originally endorsed by the railroads would have provided by its use of the phrase “and not by such other mode.” See supra, at 580. This language was, however, rejected by the Congress and the alternative formulation proposed by the ICC, see Hearings, supra, at 169, was substituted for it.

As this Court said in the New Haven case:

“The principal reason for this reference [to the National Transportation Policy] . . . was to emphasize the power of the Commission to prevent the railroads from destroying or impairing the inherent advantages of other modes. And the precise example given to the Senate Committee, which led to the language adopted, was a case in which the railroads, by establishing on a part of their operations a compensatory rate below their fully distributed cost, forced a smaller competing lower cost mode to go below its own fully distributed cost and thus perhaps to go out of business.” 372 U. S., at 758.

Since these cases are identical to the example just described, it would seem that, at the very least, the result reached by the Commission here is presumptively in accord with the language of the statute and with the intent of Congress in utilizing that language.

The District Court, however, ignored the above portion of the New Haven opinion and seized on certain other language therein to the effect that:

“It may be, for example, that neither a comparison of ‘out-of-pocket’ nor a comparison of ‘fully distributed’ costs, as those terms are defined by the Commission, is the appropriate method of deciding which of two competing modes has the cost advantage on a given movement.” 372 U. S., at 760.

It coupled this language with its interpretation of § 15a (3) as having the purpose to promote “hard competition,” and concluded that the Commission had the burden of justifying any departure from using out-of-pocket cost as the means of determining inherent cost advantage.

We think that the District Court erred in its reading both of the prior New Haven decision and of the extent to which Congress intended to foster intermodal competition. We note first that nothing in the language of the New Haven opinion indicates a preference for either out-of-pocket or fully distributed costs as a measure of inherent advantage; rather, all that is said is that the appropriate measure “may be” neither. Given the fact that the insertion of the reference to inherent advantage into § 15a (3) came about at the insistence of carriers that were demanding that fully distributed costs be the sole measure of that advantage, we think that the clear import of the foregoing statement in the New Haven opinion was that the Commission could, after due consideration, decide that some other measure of comparative costs might be more satisfactory in situations involving intermodal competition than the one it had traditionally utilized. That is a far cry from saying that it must.

The District Court apparently believed that the Commission was required to exercise its judgment in the direction of using out-of-pocket costs as the rate floor because that would encourage “hard” competition. We do not deny that the competition that would result from such a decision would probably be “hard.” Indeed, from the admittedly scanty evidence in this record, one might well conclude that the competition resulting from out-of-pocket ratemaking by the railroads would be so hard as to run a considerable number of presently existing barge and truck lines out of business.

We disagree, however, with the District Court’s reading of congressional intent. The language contained in § 15a (3) was the product of a bitter struggle between the railroads and their competitors. One of the specific fears of those competitors that prompted the change from the original language used in the bill was that the bill as it then read would permit essentially unregulated competition between all the various transportation modes. It was argued with considerable force that permitting the railroads to price on an out-of-pocket basis to meet competition would result in the eventual complete triumph of the railroads in inter-modal competition because of their ability to impose all their constant costs on traffic for which there was no competition.

The economists who testified for the railroads in this case all stated that such an unequal allocation of constant costs among shippers on the basis of demand for railroad service, i. e., on the existence of competition for particular traffic, was economically sound and desirable. Apart from the merits of this contention as a matter of economic theory, it is quite clear that it was a contention that was not by any means wholly accepted by the Congress that enacted § 15a (3). One of the specific examples given of an undesirable practice, and accepted by the members of the Commerce Committee that drafted the statute as such, was a case in which certain railroads had engaged in day-to-day differential pricing on the carriage of citrus fruit from Florida depending on whether competitive carriage was available by ship that day. See Hearings, supra, at 153-155. Similar complaints were made about seasonal variations in rates by railroads depending on whether winter conditions interfered with the carriage of freight by water. Id., at 162-163. Yet, from an economic standpoint, such rate variations make perfect competitive sense insofar as maximization of railroad revenues is concerned.

The simple fact is that § 15a (3) was not enacted, as the railroads claim, to enable them to price their services in such a way as to obtain the maximum revenue therefrom. The very words of the statute speak of “preserving]” the inherent advantages of each mode of transportation. If all that was meant by the statute was to prevent wholly noncompensatory pricing by regulated carriers, language that was a good deal clearer could easily have been used. And, as we have shown above, at least one version of such clear language was proposed by the railroads and rejected by the Congress. If the theories advanced by the economists who testified in this case are as compelling as they seem to feel they are, Congress is the body to whom they should be addressed. The courts are ill-qualified indeed to make the kind of basic judgments about economic policy sought by the railroads here. And it would be particularly inappropriate for a court to award a carrier, on economic grounds, relief denied it by the legislature. Yet this is precisely what the District Court has done in this case.

We do not mean to suggest by the foregoing discussion that the Commission is similarly barred from making legislative judgments about matters of economic policy. It is precisely to permit such judgments that the task of regulating transportation rates has been entrusted to a specialized administrative agency rather than to courts of general jurisdiction. Of course, the Commission must operate within the limits set out by Congress in enacting the legislation it administers. But nothing we say here should be taken as expressing any view as to the extent that § 15a (3) constitutes a categorical command to the ICC to use fully distributed costs as the only measure of inherent advantage in intermodal rate controversies. As was stated in the New Haven case, it “may be” that after due consideration another method of costing will prove to be preferable in such situations as the present one. All we hold here is that the initial determination of that question is for the Commission.

It is in this connection that the timing of this case takes on particular significance. We have already observed that the ICC has presently pending before it a broad-scale examination of the whole question of the cost standards to be used where comparisons of inter-modal cost advantages are required. Rather than await the result of that rulemaking proceeding, the railroad appellees here determined to attempt to raise precisely the same issues in a much more circumscribed proceeding by unilaterally reducing their rates on one item of traffic. The District Court totally ignored the temporary nature of the ICC’s action in this case and the pendency of the rulemaking proceeding. Instead, it went ahead and, in the guise of resolving this particular controversy over a single rate reduction, rendered a decision which, for all practical purposes, made the rulemaking proceeding moot. While there might be some justification for such a course when the applicable statute clearly requires the agency to arrive at a given result, this case is emphatically not such a situation. As this Court stated in New Haven, “ [t] hese and other similar questions should be left for initial resolution to the Commission’s informed judgment.” 372 U. S., at 761.

The Commission stated here that it intended to exercise its informed judgment by considering the issues presented here in the context of a rulemaking proceeding where it could evaluate the alternatives on the basis of a consideration of the effects of a departure from a fully distributed cost standard on the transportation industry as a whole. Until that evaluation was completed, the Commission took the position that it would continue to follow the practice it had observed in the past of dealing with individual rate reductions on a fully distributed cost basis. The District Court, in effect, refused to permit the Commission to deal with the complex problems of developing a general standard of costing to use in determining inherent advantage in situations involving intermodal competition in the broad context of a rule-making proceeding. Instead, it ordered the Commission to resolve those problems in the narrow context of this individual rate reduction proceeding.

We have already observed that the District Court erred in interpreting the New Haven decision to require the Commission to permit out-of-pocket pricing in most instances. Given the fact that New Haven indicated that the Commission was to exercise its informed judgment in ultimately determining what method of costing was preferable, it is clear that the District Court also erred in refusing to permit the Commission to exercise that judgment in a proceeding it reasonably believed would provide the most adequate record for the resolution of the problems involved. We can see no justification for denying the Commission reasonable latitude to decide where it will resolve these complex issues, in addition to how it will resolve them. The action by the District Court here not only deprives the Commission of the opportunity to make the initial resolution of the issues but also prevents it from doing so in a more suitable context.

This Court has just recently held that the Federal Power Commission had the authority to fix rates on an area-wide basis rather than on an individual producer basis and that, in order to make such a procedure feasible, it had statutory authority to impose a moratorium upon rate increases by producers for a period of 2% years after the setting of the area rate. Permian Basin Area Rate Cases, 390 U. S. 747 (1968). The basis for this holding was the principle that the “legislative discretion implied in the rate making power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination as well as that determination itself.” Id., at 776. That principle is equally applicable to rate regulation carried out by the ICC, especially where, as here, the determination made on an interim basis is in general accord with both the legislative history of the statute involved and the results in prior cases decided by the agency. Accordingly, we hold that the Commission had ample authority to decline to deal with the broad contentions advanced by the railroads in this individual rate case and that the District Court erred in failing to recognize that authority.

The District Court also objected to the failure of the Commission to explain why it permitted out-of-pocket ratemaking where the competing carrier was unregulated and not where the competitor was regulated. The short answer to this is that § 15a (3) by its own terms applies only to “modes of transportation subject to this Act,” which by definition means regulated carriers. As a result any arbitrariness that may flow from the distinction recognized by the Commission between regulated and unregulated carriers in situations of intermodal competition is the creation of Congress, not of the Commission.

The District Court also appears to have held that the Commission did not adequately explain how the rate set by the railroads would impair or destroy the barge-truck inherent advantage. Yet the Commission pointed out that the principle proposed by the railroads would, if recognized, permit the railroads to capture all the traffic here that is presently carried by the barge-truck combination because the railroads’ out-of-pocket costs were lower than those of the combined barge-truck service. The District Court seems to have been impressed by the fact that the railroads were merely meeting the barge-truck rate, despite the uncontroverted evidence that given equal rates all traffic would move by train. Given a service advantage, it seems somewhat unrealistic to suggest that rate parity does not result in undercutting the competitor that does not possess the service advantage. In any event, regardless of the label used, it seems self-evident that a carrier’s “inherent advantage” of being the low cost mode on a fully distributed cost basis is impaired when a competitor sets a rate that forces the carrier to lower its own rate below its fully distributed costs in order to retain the traffic. In addition, when a rate war would be likely to eventually result in pushing rates to a level at which the rates set would no longer provide a fair profit, the Commission has traditionally, and properly, taken the position that such a rate struggle should be prevented from commencing in the first place. Certainly there is no suggestion here that the rate charged by the barge-truck combination was excessive and in need of being driven down by competitive pressure. We conclude, therefore, that the Commission adequately articulated its reasons for determining that the railroads' rate would impair the inherent advantage enjoyed by the barge-truck service.

The judgment of the District Court is reversed and the cases are remanded to that court with directions to enter a judgment affirming the Commission’s order.

It is so ordered.

MR. Justice Harlan,

concurring in the result.

As I understand the Court’s position, it is that the Commission has not decided, and thus the Court need not decide, the question expressly left open in ICC v. New York, N. H. & H. R. Co., 372 U. S. 744: whether out-of-pocket costs, fully distributed costs, or some third standard should be the criterion for determining, under § 15a (3) of the Interstate Commerce Act, 49 U. S. C. § 15a (3), and the National Transportation Policy, preceding § 1 of the Act, which mode of transportation has the inherent advantage. The reasoning of the Court’s opinion is, I take it, that the Commission may properly adhere to a fully distributed costs standard pending its decision in a separate rulemaking proceeding, entitled Rules Governing the Assembling and Presenting of Cost Evidence, Docket No. 34013.

Although I do not doubt that an administrative agency may, where the orderly processes of adjudication or rule-making require, defer the resolution of issues to more appropriate proceedings, I should have had the greatest difficulty in saying that in fact this had occurred, or had been intended to occur, in these cases. Nonetheless, given both the Court’s conclusion and the isolated statements in the Commission’s opinion consistent with that conclusion, I believe it best to acquiesce in the result reached by the Court, rather than to express my views as a single Justice upon the issue which the Court shuns.

I would be less than candid if I did not say that I regard this disposition of these cases as unsatisfactory, for what is now done leaves this important question just where our decision of five years ago in the New Haven case left it, and new litigation will now be necessary to resolve the issue.

Mr. Justice Douglas,

dissenting.

I would affirm the judgment below for the reasons stated by the District Court in 268 F. Supp. 71.

       The United States, a statutory defendant in the District Court, supported the railroads’ position there and has participated in support of them in the proceedings before this Court.

       The -term “inherent advantage” comes from the National Transportation Policy, 49 U. S. C. preceding § 1, and is incorporated by reference into § 15a (3) of the Interstate Commerce Act. The meaning of the term is the central issue in these cases and will be discussed in considerable detail, infra, at 579-594.

       Fully distributed costs are defined broadly by the ICC as the “out-of-pocket costs plus a revenue-ton and revenue ton-mile distribution of the constant costs, including deficits, [that] indicate the revenue necessary to a fair return on the traffic, disregarding ability to pay.” New Automobiles in Interstate Commerce, 259 I. C. C. 475, 513 (1945).

       The long-term out-of-pocket costs were computed under an ICC-sponsored formula which generally holds that 80% of rail operating expenses, rents and taxes are out-of-pocket in that they will vary with traffic. To this is added a return element of 4% on a portion of the investment (all the equipment and 50% of the road property), which is apportioned to all traffic on a proportional basis. Compare n. 3, supra.

       This figure is not precisely a cost figure. Rather it is the barge fully distributed cost, plus the charge made for the truck portion of the service and the charge for barge-truck transfer. Since all parties seem willing to treat the figure as one of fully distributed cost for the barge-truck combination, no further mention will be made of its disparate elements.

       Because the barge-truck rate of $5.11 was below the fully distributed cost of the service, Division 2 of the ICC initially concluded that the barge-truck combination had forfeited its right to claim that its inherent advantage of lower fully distributed cost was being impaired by the railroads’ setting of a matching rate. On reconsideration, the full Commission reversed this ruling by Division 2, observing that there was no evidence that the failure of the barge-truck rate to equal fully distributed cost was due to anything but the barge lines’ ignorance of the precise amount of their fully distributed cost for this service. This determination is not challenged here by any party and we express no opinion on it.

       Out-of-pocket costs have been regarded generally in these cases as equivalent to what economists refer to as “incremental” or “marginal” costs. Accordingly we shall equate the terms likewise, although we have no intention of vouching for the accuracy of that equation as a matter of pure economics. Cf. n. 4, supra. Such costs are defined generally as the costs specifically incurred by the addition of each new unit of output and do not include any allocation to that unit of pre-existing overhead expenses.

       A rate is compensatory in the sense used by the District Court any time it is greater than the out-of-pocket cost of the service for which the rate is set. The term fully compensatory is sometimes used to describe a rate in excess of fully distributed costs.

       An illustration of such a case is the decision of the ICC that was reversed in the New Haven case. There the ICC had refused to permit the railroads to set a rate which was not only above their out-of-pocket cost for the service but was also above their fully distributed cost for approximately half of the movements involved. The Commission did not rely on a determination of which of the competing carriers had the inherent advantage as to costs, but instead decided broadly that the rate would eventually destroy the coastwise shipping industry and therefore should be prohibited. This Court held that, in general, the ICC was required to determine which of the competing carriers possessed the inherent advantage before a rate could be ordered cancelled in order to protect a carrier’s present rate. While the Court indicated that the Nation’s defense needs might permit protection of even a higher cost carrier in some cases, it held that the ICC had not adequately shown New Haven to be such a case.

       The appellees also contend, and the District Court held, that the statements in the legislative history of § 15a (3) that Congress intended to compel the Commission to return to the approach to competitive rate regulation it had utilized in the case of New Automobiles in Interstate Commerce, 259 I. C. C. 475 (1945), indicate that out-of-pocket ratemaking was intended to be the rule in such cases. However, the passage quoted from New Automobiles simply states that the rates of one mode of transportation should not be held up merely to protect competing modes. It says nothing at all about inherent advantages.
      The railroads argue that the basic thrust of the New Automobiles case was to compare costs on an out-of-pocket basis. And it is true that many of the comparisons there made were on that basis. However, an examination of what the Commission actually said and did in New Automobiles compels the conclusion that no flat rule of comparison of out-of-pocket costs was there laid down. For example, the Commission concluded that on the basis of a comparison with the railroads' out-of-pocket costs for shipping automobiles, the truckers were the lower cost mode only up to 120 miles. On a fully distributed cost comparison the truckers were the lower cost mode up to 230 miles. 259 I. C. C., at 528. After discussing at some length the concept of reasonable minimum rates, the Commission ultimately concluded that generally the truckers had the cost advantage at distances up to 200 miles and that the railroads should be permitted to set rates that would permit them to compete for the longer-haul trafflc. 259 I. C. C., at 539.
      Given the fact that the Commission was dealing with an attempt by the truckers to get it to hold up railroad rates for distances even greater than 600 miles, it is not surprising that the issue of measuring inherent advantage as between fully distributed and out-of-pocket costs did not receive detailed consideration, since by either method the truckers were the low cost mode only up to a little more than 200 miles. Thus it cannot fairly be said that New Automobiles represents a considered choice between the two methods of cost comparison. Rather what it stands for is the principle emphasized in the New Haven case that the rates of one mode should not be held up to protect the revenues of a competitor without regard to which is the low cost carrier.
      In any event, what matters so far as § 15a (3) is concerned is not what the Commission meant in New Automobiles but what Congress thought it meant in 1958 when the section was enacted. As we have shown in the text of the opinion above, Congress considered New Automobiles to stand for the principle that the rate structure of a competing mode should not be protected by the Commission simply to prevent it from losing business through competition.

       The District Court also relied on the rejection of a similar proposal by truck and barge interests that fully distributed costs be the floor for reasonable minimum rates in the course of the enactment of the National Transportation Policy in 1940. It seems clear, however, that one of the major reasons for the rejection of the so-called Miller-Wadsworth amendment by Congress was the possibility that its enactment would prevent low-value industrial and agricultural commodities from being carried at a rate low enough to make it economically feasible to ship them in interstate commerce. See generally Nelson, Rate-Making In Transportation — Congressional Intent, 1960 Duke L. J. 221, 228-238.

         While it is true that, for varying and sometimes unexplained reasons, the Commission has not invariably used fully distributed costs as the basis for cost comparisons in situations involving inter-modal competition, see 268 F. Supp., at 78, it is also true that it has generally declared fully distributed cost comparisons to be preferable. Thus in the hearings on the bill that was to become §15a(3), Commissioner Freas stated:
      “Whenever conditions permit, given transportation should return the full cost of performing carrier service. ... In many instances, however, the full cost of the low-cost form of transportation exceeds the out-of-pocket cost of another. If, then, we are required to accept the rates of the high cost carrier merely because they exceed its out-of-pocket costs, we see no way of preserving the inherent advantages of the low cost carrier.” Quoted at 372 U. S., at 755.

       The District Court ascertained the legislative purpose to promote “hard competition” from the following passage from the New Haven opinion:
      “Section 15a (3), in other words, made it clear that something more than even hard competition must be shown before a particular rate can be deemed unfair or destructive. The principal purpose of the reference to the National Transportation Policy, as we have seen, was to prevent a carrier from setting a rate which would impair or destroy the inherent advantages of a competing carrier, for example, by setting a rate, below its own fully distributed costs, which would force a competitor with a cost advantage on particular transportation to establish an unprofitable rate in order to attract traffic.” 372 U. S., at 759.
      Since the sentence following the term “hard competition” described an example of the competition prohibited by the National Transportation Policy that is identical to the facts of the present case, the District Court’s use of the term to reverse the ICC’s decision here seems somewhat peculiar.

       Constant costs are, broadly speaking, those items of expense which are incurred by a business regardless of the scale of its operations. They are essentially the equivalent to what is commonly called overhead expenses. For railroads constant costs include such items as real estate taxes, certain rents, much right-of-way maintenance expense and similar expenses.

       Unequal allocation of constant costs as an element of the rate charged also occurs commonly where a bulky commodity is so low valued on a per ton basis that setting a rate by reference to the fully distributed cost of carrying the commodity would make it uneconomic to ship it. See n. 11, supra.

       This Court is not particularly suited to pass on the merits of the economic arguments made by the railroads’ expert witnesses in these cases. Moreover, their soundness is not especially relevant to the result we reach in the present posture of this controversy. However, because the economic testimony is emphasized so heavily by both the railroads and the United States in their arguments to us, we shall venture a few observations on it.
      Most of the economic testimony is directed towards proving that the utilization of out-of-pocket costs in setting rates permits the railroads to maximize their profits. To the extent that out-of-pocket costs are accurately computed, that proposition appears uncontro-vertible. The economists then go on to argue, in effect, that what is good for the railroads is good for the country. This argument is developed as follows. Whenever a railroad lowers its rate, the shipper to whom that rate is available benefits. As long as the rate is above the out-of-pocket cost of the service, the railroad benefits by obtaining the profits from traffic it formerly did not carry. The fact that a competing carrier may lose the revenue it previously earned by carrying the traffic is immaterial because the railroad’s ability to make a profit by charging the lower rate shows that it is, in some sense, more efficient than its competitor.
      In order to evaluate the foregoing argument certain other aspects of a railroad’s operation must be kept in mind. The reason why a railroad’s fully distributed costs are substantially greater than its out-of-pocket costs on any given traffic is, inter alia, because certain constant costs, see n. 14, supra, are allocated to that traffic on a proportional basis despite the fact that those costs will be incurred by the railroad whether it carries the particular traffic or not. These constant costs must be earned if the railroad is to stay in business. They are allocated proportionally on the theory that, all other factors being equal, such an allocation will be the best way of assuring that each shipper contributes his fair share towards covering the constant costs. Obviously to the extent that any shipper pays more of the constant costs than another without any good reason for so doing that shipper is, in some sense, discriminated against.
      The railroad economists point out that, because constant costs by definition are not attributable to the carriage of any particular traffic, it is to some extent arbitrary to allocate them to particular traffic. They further contend that all shippers presently utilizing a railroad’s services are benefited when the railroad obtains additional traffic at a profit to it, because that profit can be used to pay a portion of the constant costs currently being charged wholly to them. The fact that charging a rate less than its fully distributed cost of carrying the traffic results in the shipper of that freight paying a disproportionally low share of the railroad’s constant costs is considered to be outweighed by the overall benefit to the other shippers of having the absolute amount borne by them of the constant costs decreased by the profit earned on the traffic.
      It seems apparent, however, that in a case where the sole reason that a rate below fully distributed cost is necessary to attract such additional traffic is the competition of another mode of transportation, the continued existence of that competition is also the sole economic justification for maintaining the rate at a relative level that favors one shipper over others. If the competing carrier is driven out of business because of its inability to match the railroad’s lower rates set on an out-of-pocket basis, the economic justification for permitting the continuation of those low rates would seem to disappear. Yet the railroad economists assert that in such a situation the railroad should be required by the ICC to maintain the rate at its original level. The obvious reason for this position is that permitting a railroad to raise its rates once it had effectively destroyed a competitor in one area would enable it to price on an out-of-pocket basis in competition with another carrier in a different area thereafter and, in turn, drive that carrier out of business. Eventually a railroad could eliminate all its competitors whose out-of-pocket costs were higher than its own. After this was accomplished the railroad could re-price all its services on a fully distributed cost basis thereby eliminating all discrimination between its shipper customers.
      Of course, the shippers formerly served by competing modes at rates profitable to them but lower than the railroad’s fully distributed costs would at that point have lost the advantage of the low cost service. The only way to perpetuate the advantage previously enjoyed by those shippers would be, as the railroad economists recognized, artificially to maintain their rates at the former level despite the absence of present economic justification for such a low rate. (It is true that were the barriers to re-entry into the transportation market low, as asserted by the railroad economists, the potential competition created by the possibility of such re-entry by a competing mode could furnish an economic justification for the continuance of the original low rate. However, there is no factual evidence in this record from which it can be concluded that barriers to re-entry are low enough to create such potential competition.)
      If the only justification for the maintenance of a disproportionally low rate to some shippers is the fact that competition existed once upon a time for their business, would it be irrational to conclude that it would be preferable to keep the original competition in business to serve those shippers and to require the railroad to look elsewhere for additional revenue? Would it, for example, be possible for railroads to increase their revenues instead by increasing, through selective rate decreases, the volume of traffic shipped by persons who presently pay amounts in-excess of the fully distributed cost for the service afforded them? These are only a few of the questions that come to mind when we attempt to evaluate the economic arguments made in this ease. We do not pretend to be able to answer them. We merely note their existence as evidence that we do not find the arguments made to the ICC here as compelling as did the District Court.
      Our discussion here should not be interpreted as a rejection of the basic economic points made by the railroads. It is merely intended to illustrate the desirability of having the initial resolution of these issues made by a tribunal, and in a proceeding, more suitable than the present one.

       It is, of course, true that such discriminations need have no necessary relationship to a railroad’s cost of service, whether that is computed on a fully distributed or out-of-pocket basis. On the other hand, it is also evident that what is basically at issue is a carrier’s right to price discriminatorily, either between shipments or shippers, in order to maximize revenues by competition. By contrast it can be noted that the railroads have apparently retained their prior rate of $11.86 per ton on ingot molds in areas where they have no competition from barge-truck service. The discrimination thus created is not too dissimilar from that embodied in the above examples.

       do not, however, believe that the Court’s position is really supported by its references to the area pricing and moratoria systems approved by the Court in the Permian Basin Area Rate Cases, 390 U. S. 747. The Court’s opinion in those cases emphasized that those administrative devices were warranted in light of the terms of the Natural Gas Act and of the extraordinary difficulties of regulating independent producers of that commodity. I should not have thought it useful or desirable to extrapolate from those unusual circumstances any general extension of the discretion of administrative agencies. Of course, the specific proposition taken by the Court today from the opinion in those cases, which had in turn been taken from Los Angeles Gas Co. v. Railroad Commission, 289 U. S. 287, 304, may be regarded as a general principle sustained by a number of the Court’s opinions. The difficulty, I should have supposed, is that even that general proposition is only dimly relevant to the questions now before us.

       The appearance and disappearance of the suggestion that these questions must be deferred pending the Commission’s rulemaking proceedings on the presentation of cost evidence deserves a more complete chronicle than the Court has given. In 1965, more than three years after the Commission initiated its rulemaking proceeding, 27 Fed. Reg. 4102, and some two months before it decided these cases, the Commission held that “a comparison of out-of-pocket costs is the most appropriate method for ascertaining . . . inherent competitive advantage” where one of the competing modes is unregulated. The Commission found it unnecessary to defer that question, or even to mention its separate rulemaking proceeding. Grain in Multiple-Car Shipments — River Crossings to the So., 325 I. C. C. 752, 772.
      In the present case, the report and order of the Commission’s Division 2 indicated that it “adhere [d] to the utilization of fully distributed costs as the standard for determining the inherent advantage of low cost in the situation presented.” 323 I. C. C. 758, 762-763. The opinion did not pause to refer to the rulemaking proceeding. In the report and order of the full Commission on reconsideration, the only reference to the rulemaking proceeding was the brief passage quoted by the Court from the opinion’s final section. 326 I. C. C. 77, 84. The three dissenting members of the Commission found it unnecessary to refer to the rulemaking proceeding. Id., at 85, 86, 90.
      One year after its decision in these cases, the Commission had occasion to review its approach to these problems. Although the Commission adhered to its decisions in these cases and in Grain in Multiple-Car Shipments—River Crossings to the So., supra, it did not find it necessary to advert to its separate rulemaking proceedings. It concluded that where the competition from a regulated carrier is “relatively limited” it would apply the rule from Grain in Multiple-Car Shipments, and not that from these cases. There is no evidence whatever that the Commission regarded these two lines of authority merely as temporary expedients, useful only until more careful analysis is possible. Wine, Pacific Coast to the East, 329 I. C. C. 167, 171-175. And see the concurring opinions of Vice Chairman Tucker and Commissioner Freas, id., at 176, as well as the separate opinion of Commissioner Murphy, dissenting in part, id., at 177.
      Although the three-judge District Court set aside the Commission’s order in these cases, it did not mention the rulemaking proceeding. 268 F. Supp. 71.
      In its jurisdictional statement to this Court, the Commission adverted to the rulemaking proceeding only in a single sentence, with an identifying footnote, contained in the statement’s conclusion. Jurisdictional Statement in No. 809, at 17. In the memorandum of the United States, urging that probable jurisdiction be noted, it was said that these cases “present a major issue reserved by this Court” in New Haven, which was “whether out-of-pocket costs, fully distributed costs, or ‘some different measure’ should be the criterion for determining which mode of transportation has the inherent advantage . . . .” Memorandum for the United States 3-4. In the various briefs presented to the Court in these four cases, including the briefs of the United States and of the Commission, I have looked in vain for any suggestion that, as the Court now holds, the Commission’s opinion was intended merely to defer resolution of the question reserved in New Haven. Indeed, I have searched unsuccessfully in the Commission’s brief for any reference, however fleeting, to the rulemaking proceeding. One might have supposed that if, as the Court now finds, the existence of the rule-making proceeding was, in the Commission’s view, decisive to the result of this ease, the Commission would have found room in its brief of 51 pages at least to cite those proceedings. It is difficult to escape the inference that the Court has, on a basis that will doubtless prove as surprising to the parties as it did to me, simply postponed decision of a difficult issue.

       It is, however, proper to add that I have found no support in the record for the Court’s suggestion that “the railroad appellees here determined to attempt to raise precisely the same issues [as in the rulemaking proceeding] in a much more circumscribed proceeding by unilaterally reducing their rates on one item of traffic.” Ante, at 590-591.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Harlan, Mr. Justice Fortas, MR. Chief Justice Warren, Mr. Justice Douglas,

license: Public Domain

text:
    WAINWRIGHT v. CITY OF NEW ORLEANS.
    No. 13.
    Argued October 9-10, 1967.
    Decided June 17, 1968.

      Melvin L. Wulf argued the cause for petitioner. With him on the brief were Norman Dorsen and Marvin M. Karpatkin.

      Richard C. Seither argued the cause for respondent. With him on the brief was Alvin J. Liska.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Harlan,

concurring.

I wish to state in a few words my reasons for joining in the dismissal of this writ as improvidently granted. For reasons stated in the dissenting opinion of my Brother Douglas I agree that the dispositive federal issue in this case is whether the petitioner used an unreasonable amount of force in resisting what on this record must be regarded as an illegal attempt by the police to search his person. I find this record too opaque to permit any satisfactory adjudication of that question. See Rescue Army v. Municipal Court, 331 U. S. 549, 568-575.

Mr. Justice Fortas,

with whom Mr. Justice Marshall joins,

concurring.

With profound deference to the opinions of my Brethren who have filed opinions in this case, I am impelled to add this note. Upon oral argument and further study after the writ was granted, it became apparent that the facts necessary for evaluation of the dispositive constitutional issues in this case are not adequately presented by the record before us. It is also entirely clear that they cannot now be developed on remand with any verisimilitude.

The central issue that this case appeared to present for decision when certiorari was granted is of great importance. It is whether the police, seeing a pedestrian who fits the description of a person suspected of murder, may accost the pedestrian and stop him; and when and to what extent is the accosted person justified in refusing to cooperate with efforts of the police to establish that he is or is not the person whom they seek.

I am not prepared to say that, regardless of the presence or absence of adequate cause for police action, the arrest or the attempt by the officers to search is unlawful, as my Brother Harlan's opinion suggests, where the accosted person produces no identification, attempts three times to walk away, and refuses to dispel any doubt by showing that his forearm is not tattooed. I should want to know whether, in fact, there was constitutionally adequate cause for the police to suspect that the pedestrian was the man sought for murder.

If the Court should, on an adequate record, determine that the police action in stopping and arresting petitioner violated his constitutional rights, there would remain, among other issues the question of culpability for the scuffle that ensued. My Brethren who have written in this case seem agreed that the record is too sketchy to permit decision of this issue.

The Court has properly dismissed the writ as improvidently granted. I respectfully submit that the Court is correct to leave the matter there. I should regret any inference that might be derived from the opinions of my Brethren that this Court would or should hold that the police may not arrest and seek by reasonable means to identify a pedestrian whom, for adequate cause, they believe to be a suspect in a murder case. I do not believe that this Court would or should, without careful analysis, endorse the right of a pedestrian, accosted by the police because he fits the description of a person wanted for murder, to resist the officers so vigorously that they are “bounced from wall to wall physically” or to react “like a football player going through a line.” Our jurisprudence teaches that we should decide issues on the basis of facts of record. This is especially important in the difficult, dangerous, and subtle field where the essential office of the policeman impinges upon the basic freedom of the citizen.

MR. Chief Justice Warren,

dissenting.

About midnight on October 12, 1964, petitioner, a student at Tulane University Law School, left his French Quarter apartment in New Orleans to get something to eat. Approximately four blocks from his apartment, two officers of the New Orleans Police Department who had observed petitioner as they cruised by in their car stopped him because in their opinion he fitted the description of a man suspected of murder. That suspect had tattooed on his left forearm the words “born to raise hell.” Petitioner told the officers he had identification at home but not on his person. He gave them his name and address, and informed them he was a law student and was on his way to get something to eat. The officers told petitioner they thought he resembled a murder suspect, and asked him to remove his jacket so they could check his forearm for the tattoo. Petitioner refused, saying he would not allow himself “to be molested by a bunch of cops here on the street,” and he “didn’t want to be humiliated by the police.” Petitioner was then suffering from a skin ailment which he apparently regarded as unsightly and which would have been exposed had he removed his jacket, though he did not communicate this to the police. The police arrested him on a charge of vagrancy by loitering and frisked him.

During this incident petitioner attempted three times peacefully to walk away from the officers. The first two attempts came after petitioner had given what he regarded as sufficient identification. The third, although the officers were not certain about this, apparently occurred after petitioner was informed he was under arrest. Evidently on the basis of this last attempt, petitioner was subsequently charged with resisting an officer. Petitioner used no force in any of his attempts to walk away and each time stopped when so directed by the police.

After petitioner was inside the police car he called the officers “stupid cops,” whereupon they told him he would also be charged with reviling the police. When the car arrived at the police station, petitioner offered to produce identification if they would take him home, but this offer was rejected. In the stationhouse, petitioner was interrogated for about 10 minutes concerning a “possible murder suspect.” Thereafter, he was booked for vagrancy by loitering, resisting an officer, and reviling the police.

An officer then told petitioner to remove his jacket. Petitioner refused, folding his arms and crouching in a corner. Two officers, according to one of them, then “got hold of each of his arms . . . [and] tried to pry his arms apart, and . . . were bounced from wall to wall and bench to bench and back again.” Petitioner did not strike at or kick the officers, but rather, according to one officer, “danc[ed] from wall to wall . . . trying to keep us from getting his arms.” According to another, the officers were jostled only by “the combined effort of Mr. Wainwright in his refusal to remove the jacket. Force was necessary to remove the jacket by the officers.” The officers sustained no bruises, marks, or torn clothing as a result of this incident, and succeeded in removing petitioner’s jacket and discovering he had no tattoo.

Petitioner’s trial for the three charges based on the episode in the street — vagrancy by loitering, resisting an officer and reviling the police — commenced on December 4, 1964. After partial testimony the trial was adjourned, and not resumed until May 7, 1965, when the court heard further partial testimony and adjourned over petitioner’s objection. The trial was again resumed on May 14, and at the close of the State’s case on that day petitioner’s motion for dismissal was taken under advisement, and three new charges based on events inside the police station were lodged against him. Respondent, before this Court, characterizes the original charges which were prosecuted against petitioner intermittently over a six-month period as “long-abandoned.” Why the police waited six months before bringing charges based on events occurring within the police station is nowhere explained.

These new charges consisted of two counts of disturbing the peace by assaulting police officers, and one count of resisting an officer. Petitioner was convicted in the Municipal Court on all three counts. On appeal to the Criminal District Court, petitioner argued that his arrest and subsequent search were unlawful, and therefore he had a right to resist the search. He claimed that “[t]he legality of the arrest must be shown in order to find the defendant guilty of any crime in resisting it.” He also argued that the evidence showed only that he tried to hold his jacket on, and that resistance of this type does not constitute the crime of assault. The court reversed the conviction for resisting an officer on the ground that the resistance must occur while the officer is making an arrest to constitute a crime under the ordinance. However, the court found the arrest was lawful, and since “[t]he defendant was in police custody pursuant to a legal arrest . . . the officers had the right and the obligation to search the defendant....” It held that “an individual in lawful police custody” cannot resist the actions of the police in doing their duty, and therefore affirmed the convictions for assault.

Petitioner sought writs of certiorari, prohibition, and mandamus in the Louisiana Supreme Court, again arguing that because the arrest and search were unlawful he had a right to resist, and also that the “evidence merely shows that the defendant acted in self-defense and resisted the removal of his clothing.” The court denied his application, holding: “The ruling of the Criminal District Court for the Parish of Orleans is correct.”

Petitioner argues before this Court that his arrest and subsequent search in the stationhouse were unlawful and that he had a right under the Fourth Amendment reasonably to resist the unlawful search. In my view, there can be no doubt on this record that the arrest and subsequent search of petitioner were illegal. I believe that the illegality of the search alone requires reversal of the judgment below, which rejected possibly meritorious state-law claims on the erroneous premise that the search was lawful. Therefore, in accordance with this Court’s well-established practice “not to formulate a rule of constitutional law broader than is required by the precise facts presented in the record,” Garner v. Louisiana, 368 U. S. 167, 163 (1961), I would reverse and remand this case without reaching the question whether petitioner had, and acted within, a Fourth Amendment right to resist.

The officers had neither a warrant nor probable cause to arrest petitioner for vagrancy by loitering. The loitering charge was based on the inconsequential circumstance that petitioner had been standing still for 5 to 10 seconds before the police approached him. That petitioner had no identification papers on his person and had very little funds obviously add nothing which could constitutionally make his conduct criminal. Cf. Thompson v. City of Louisville, 362 U. S. 199 (1960).

My Brother Fortas suggests that we cannot determine whether petitioner’s arrest was unlawful because the record does not reveal whether the officers had probable cause to arrest him for murder. I agree that the record does not permit a determination of whether the officers could lawfully have arrested petitioner for murder. With due respect, however, I suggest that this is an irrelevant inadequacy in the record. The record does establish that petitioner was not arrested for murder. The record does establish that the police interrogated petitioner for about 10 minutes concerning the murder before it was decided that he would not be booked for murder. The record does establish that petitioner was booked only for vagrancy by loitering, resisting an officer, and reviling the police.

“Booking” is an administrative record of an arrest. When a defendant is booked, an entry is made on the police “arrest book” indicating, generally, the name of the person arrested, the date and time of the arrest or booking, the offense for which he was arrested, and other information. In Louisiana, as in most jurisdictions, the police are required by law to book a suspect in this manner. La. Code Crim. Proc., Art. 228. And as the Official Comment upon the pertinent Louisiana statute recognizes, this official and permanent arrest record “provides a valuable protection against secret arrests and improper police tactics.” 1 La. Code Crim. Proc., p. 131. I see no more justification for permitting the State to disregard its own booking record than for permitting any other administrative body to disregard its own records. Quite the contrary. In the “low-visibility” sphere of police investigatory practices, there are obvious and compelling reasons why official records should prevail over the second-guessing of lawyers and judges. Nor would holding the police to official records frustrate any legitimate interest of society. If the police in this case really believed that petitioner was the murder suspect, and if they had probable cause to so believe, all they had to do was to arrest and book him for murder. If they did not have such probable cause at the time they confronted petitioner on the street, they might have used techniques short of arresting him on a trumped-up charge to verify their suspicions.

It is perfectly plain, however, that the police in this case were, to say the least, not confident that petitioner was the murder suspect, and that the vagrancy charge here was used as a pretext for holding petitioner for further questioning concerning the murder. This technique, using a minor and imaginary charge to hold an individual, in my judgment deserves unqualified condemnation. It is a technique which makes personal liberty and dignity contingent upon the whims of a police officer, and can serve only to engender fear, resentment, and disrespect of the police in the populace which they serve.

Since the arrest was unlawful, the subsequent search of petitioner in the stationhouse was also unlawful. See Henry v. United States, 361 U. S. 98 (1959); Trupiano v. United States, 334 U. S. 699 (1948); Johnson v. United States, 333 U. S. 10 (1948); United States v. Di Re, 332 U. S. 581 (1948). Because the opinion of the court below was predicated upon the asumption that this search was lawful, I think that the judgment below must be reversed. If the Louisiana courts had reached the correct conclusion that the police officers had no authority to search petitioner, they might well have concluded that petitioner was within his rights under local law in resisting this unlawful search.

There are two relevant and related legal principles which the Louisiana courts might have drawn upon in considering this question. The first is the principle of self-defense, which was inferentially raised by petitioner in his appeal to the Criminal District Court and expressly noted in his application to the Louisiana Supreme Court. The idea that an individual cannot be held criminally responsible for acts done in reasonable defense of his person is deeply rooted in our jurisprudence. Self-defense has long been recognized in Louisiana, and is now provided for by several sections of the State Criminal Code, one of which states:

“The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person . . . ; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense . . . .”

The Supreme Court of Louisiana has recently intimated that this defense is available to a defendant charged with aggravated assault upon a police officer, if the asserted assault was committed after the officer attempted unlawfully to arrest the defendant. Whether such a defense is available against the disturbing-the-peace-by-assault charge upon which petitioner was convicted and whether the record in the instant case establishes such a defense are questions of Louisiana law.

The second principle which the state courts might regard as dispositive in this case was announced by .the Louisiana Supreme Court in City of Monroe v. Ducas, 203 La, 971, 14 So. 2d 781 (1943):

“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.”

Petitioner vigorously argued in the state courts that he had a right to resist the stationhouse search which he contended was unlawful, but the state courts never came to grips with this issue because they held he was then in “lawful police custody” pursuant to “a legal arrest.” By virtue of the City of Monroe case, supra, it appears with unmistakable clarity that an individual in Louisiana has a right under state law reasonably to resist an unlawful arrest. Whether this state right encompasses the right to resist an unlawful search and whether the amount of resistance here was reasonable are questions of state law.

Since the state courts’ appraisal of these crucial questions of state law was foreordained by their erroneous ruling that the search of petitioner was lawful, they should be permitted the opportunity to reconsider these questions. Accordingly, I would reverse the judgment below and remand this case to the Louisiana Supreme Court for further proceedings consistent with this opinion. Because I believe the question whether the police can arrest someone on a trumped-up minor charge pending investigation of other crimes warrants this Court’s condemnation, and because, unlike my Brethren, I do not find this record too opaque for what I consider a proper disposition, I respectfully dissent from the dismissal of the writ of certiorari as improvidently granted.

Mr. Justice Douglas,

dissenting.

If this case is to be decided by the traditional Fourth Amendment standards applicable prior to Terry v. Ohio, ante, p. 1, the question is whether a person who is unconstitutionally arrested must submit to a search of his person, or whether he may offer at least token resistance.

Police officers while cruising late one night saw petitioner standing on a street corner and concluded that he fitted the general description of a murder suspect. They accosted him and asked him to identify himself. He had no identification on his person, only at home. He gave the officers his name and address, and informed them that he was a law student. The officers told him he was being questioned because he fitted the description of a murder suspect who had on his left forearm a tattoo which read, "born to raise hell.” The officers asked him to remove the coat he was wearing so they could check his forearm, but he refused. He was then “seized” and taken to the police station, where he was asked to remove his jacket. He refused, folding his arms and crouching in a corner. The officers then attempted to take his jacket off, each pulling on one arm. There was no battle or fracas of any consequence. Petitioner, however, did resist this attempt by moving about and by pushing one officer to one side and then pushing the other officer to the other side. But so far as the record shows no more violence happened than that produced by the combined efforts of petitioner and the officers which caused the officers to be butted around the room. He did not strike at the officers, or kick them, and none of them had any marks or bruises or torn clothing.

He was booked on three charges — vagrancy, resisting an officer, and reviling the police.

At the end of the State’s case petitioner moved for dismissal of the charges. That ruling was held under advisement and petitioner was at once arraigned on three new charges, one of resisting an officer and two for disturbing the peace by assaulting an officer. The trial on this second case was had and petitioner fined $25 on each charge or given 30 days in jail on each charge, the sentences being suspended. On appeal the conviction of resisting an officer was reversed, but his conviction on two charges of disturbing the peace was affirmed by the Criminal District Court and later by the Supreme Court of Louisiana, the complaint in the first case apparently being abandoned. While petitioner tried to get the appellate courts to incorporate the record in the first case into the record in the second, that was not done. But that defect has been remedied here, the transcripts of all the hearings now being before the Court.

“A. No, dancing from .wall to wall.”

The records before us do not even approach establishing probable cause for arrest. The officers had no warrant. They did not see petitioner commit any crime. There was no arrest which could be justified under the heading of vagrancy. That could be made use of only by the factor of loitering, but petitioner was seen standing still for only five to 10 seconds. To be sure he did not have identification papers on him and “very little funds.” But those factors obviously could not be ingredients of a crime under our present system of government. Cf. Thompson v. Louisville, 362 U. S. 199.

It is plain that the officers “seized” petitioner to question him further concerning a murder. It is apparently on that ground that the Criminal District Court concluded that petitioner’s arrest was “legal.” But he was not arrested for murder or for any related offense, but only for vagrancy. The circumstances of this case show that the arrest was no more than arrest on suspicion, which of course was unconstitutional — at least prior to Terry v. Ohio — and robs the search of any color of legality. Henry v. United States, 361 U. S. 98.

Under our authorities (cf. Elk v. United States, 177 U. S. 529, 534-535; and see United States v. Di Re, 332 U. S. 581, 594), at least prior to the ill-starred case of Terry v. Ohio, a citizen had the right to offer some resistance to an unconstitutional “seizure” or “search.” Must he now stand quietly and supinely while officers “pat him down,” whirl him around, and throw him in the wagon?

The present episode may be an insignificant one and the hurt to petitioner nominal. But the principle that a citizen can defy an unconstitutional act is deep in our system. Thomas v. Collins, 323 U. S. 516, 532-537.

When in a recent case (Wright v. Georgia, 373 U. S. 284, 291-292), it was said that “failure to obey the command of a police officer constitutes a traditional form of breach of the peace,” we made a qualification: “Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”

Wé should not let those fences of the law be broken down.

This case points up vividly the dangers which emanate from the Court’s decision in Terry v. Ohio, the so-called “stop-and-frisk” case. If this case is to be decided by the new test of “searches” and “seizures” announced in that case, startling problems are presented. The officers here had no more than an unsubstantiated suspicion that petitioner was a murder suspect, a suspicion based only on a superficial resemblance between petitioner and the wanted man. Thus they had no right to “seize” petitioner. Is the case dismissed as improvidently granted because the officers had “reasonable suspicion” justifying the seizure, or reasonable grounds to believe that petitioner was armed and dangerous? These questions are not answered by the Court; and leaving them unanswered gives a new impetus to Terry v. Ohio. If this “seizure” was constitutional, then the sleepless professor who walks in the night to find the relaxation for sleep is easy prey to the police, as are thousands of other innocent Americans raised in the sturdy environment where no policeman can lay a hand on the citizen without “probable cause” that a crime has been or is about to be committed. That was the philosophy of Walt Whitman, Vachel Lindsay, and Carl Sandburg and it was faithfully reflected in our law.

The interest of society in apprehending murderers is obviously strong; yet when the manhunt is on, passions often carry the day. I fear the long and short of it is that an officer’s “seizure” of a person on the street, even though not made upon “probable cause,” means that if the suspect resists the “seizure,” he may then be taken to the police station for further inquisition. That is a terrifying spectacle — a person is plucked off the street and whisked to the police station for questioning and identification merely because he resembles the suspected perpetrator of a crime. I fear that with Terry and with Wainwright we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes but of modern Iran, “democratic” Formosa, and Franco Spain, with which we are now even more closely allied.

       The ordinance under which petitioner was convicted provides: “No person shall disturb the public peace by assaulting or beating another or by threatening to do bodily harm to another.” § 42-24 Code of the City of New Orleans, Louisiana.

       The reviling-the-police charge arose from an incident subsequent to the unlawful arrest. While it is not entirely clear from the testimony whether the charge of resisting an officer was based on petitioner’s pre- or post-arrest attempt to walk away, the decision of the Criminal District Court reversing petitioner’s conviction for resisting an officer based on events inside the pdiee station makes clear that to constitute a crime under the relevant New Orleans ordinance the resistance must occur in the process of an arrest. Therefore, petitioner’s pre-arrest attempts to walk away are irrelevant. His post-arrest attempt, just as his post-arrest alleged reviling of the police, cannot justify the initial arrest for vagrancy. Cf. United States v. Di Re, 332 U. S. 581, 595 (1948); Byars v. United States, 273 U. S. 28, 29 (1927). In any event, it is evident that these two charges are as baseless as the vagrancy charge. A peaceful attempt to walk away from a police officer, where the accused has identified himself, has committed no crime in the presence of the officer, and stops as soon as the officer directs him to cannot be regarded as the crime of resisting an officer, and, it is fairly clear, would not be so regarded in Louisiana. See State v. Dunnington, 157 La. 369, 102 So. 478 (1924); State v. Scott, 123 La. 1085, 49 So. 715 (1909). And with due regard for the sensitivity of police officers, it is simply inconceivable that it can be made criminal to speak the words “stupid cop,” without more, in the privacy of a police car. It seems likely that the abandonment of the prosecution on these charges after the State had presented its case indicates that the prosecuting officials were well aware of the groundlessness of all three charges.

       See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 379-382 (1965). Cf. The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 8 (1967).

       See, e. g., New York City Charter and Administrative Code §435-12.0 (1963); District of Columbia Code §4^134 (1967).

       La. Code Crim. Proc., Art. 228, provides that: “It is the duty of every peace officer making an arrest, or having an arrested person in his custody, promptly to conduct the person arrested to the nearest jail or police station and cause him to be booked. A person is booked by an entry, in a book kept for that purpose, showing his name and address, the offense charged against him, by whom he was arrested, a list of any property taken from him, and the date and time of booking. Every jail and police station shall keep a book for the listing of the above information as to each prisoner received. The book shall always be open for public inspection. The person booked shall be imprisoned unless he is released on bail.” (Emphasis added.)

       Of course, I do not mean to suggest that a defendant arrested and booked for one crime cannot later be charged with other crimes. The point is simply that when a controversy arises over the legality of the arrest, the police should be held to the booked offense.

       For example, one officer might have followed petitioner while the other secured more detailed information about the murder suspect from headquarters, and/or checked petitioner’s identification by looking at a phonebook or going to the address he gave them. They might also have checked with someone connected with petitioner’s law school. Another alternative would have been to suggest that petitioner voluntarily return to his apartment, which the officers knew was only four blocks away from the scene of the arrest, to secure identification — an offer which petitioner made upon arrival at the police station and the officers rejected.

       Cf. United States v. Carignan, 342 U. S. 36, 46 (1951); Culombe v. Connecticut, 367 U. S. 568, 631-632 (1961). Respondent, the City of New Orleans, urges that in 1958 it abandoned the practice of arresting for vagrancy pending investigation of other offenses. If this is so, the city is. deserving of commendation. Irrespective of the general policy of the city, however, the instant case clearly demonstrates that the practice continues.

        State v. Chandler, 5 La. Ann. 489 (1850); State v. Scossoni, 48 La. Ann. 1464, 21 So. 32 (1896); State v. Baptiste, 105 La. 661, 30 So. 147 (1901); State v. Bolden, 107 La. 116, 31 So. 393 (1902) ; State v. Short, 120 La. 187, 45 So. 98 (1907); State v. Robinson, 143 La. 543, 78 So. 933 (1918); State v. Van Duff, 146 La. 713, 84 So. 29 (1920). See generally Comment, Self-Defense in Louisiana — The Criminal Law and the Tort Law Compared, 16 Tulane L. Rev. 609 (1942).

       La. Rev. Stat. §14:19. This statute has been broadly interpreted by the Louisiana Supreme Court. State v. Rowland, 246 La. 729, 167 So. 2d 346 (1964). See also La. Rev. Stat. §§ 14:18, 14:20, 14:21, 14:22.

         State v. Tedeton, 243 La. 1031, 150 So. 2d 4 (1963). However, the assault in the Tedeton case was found to have been committed before any attempted arrest.

        City of Monroe v. Ducas, 203 La. 971, 979, 14 So. 2d 781, 784 (1943). See also Lyons v. Carroll, 107 La. 471, 31 So. 760 (1902).

       1 do not, as my Brothers Harlan and Fortas suggest, consider the record too sketchy for determining the degree of force employed by petitioner in resisting the officers. The record discloses that no violence and little force were used by petitioner.
      Lieutenant Martello, the officer apparently in charge of the station to which petitioner was taken, testified as follows:
      “Mr. Wainwright refused to take his jacket off ... so I instructed him I would have the jacket removed by the doorman.
      “He again refused. He walked into a comer, grabbed his jacket by his hands, folding his arms, and he said, 'If you want this jacket off take it off.’
      “Officer O’Rourke and Officer Gilford asked him to take the jacket off and he didn’t respond, so they physically took the jacket off of him. He done everything in his power to keep them from removing the jacket. In this operation the officers were bounced from wall to wall physically, and with the assistance of a couple of other police officers they put handcuffs on one of his arms, and they removed his jacket.”
      On cross-examination, Martello elaborated:
      “Q. You testified that Mr. Wainwright crouched in a corner, held his jacket to him, now what did he do when Officers O’Rourke and Gilford tried to remove it?
      “A. He tried to keep it on by holding it.
      “Q. How?
      “A. By folding his arms (demonstrates).
      “Q. He didn’t do anything else?
      “A. No, not to my knowledge.
      “Q. If Officer O’Rourke and Officer Gilford got thrown around the room, it was through their own effort?
      “A. No, it was the combined effort of Mr. Wainwright in his refusal to remove the jacket. Force was necessary to remove the jacket by the officers.
      “Q. He didn’t do anything but try to hold the jacket on?
      “A. They tried to take it off, and he was trying to keep the jacket on.
      "Q. He held very still?
      “A. No, it was a struggle.
      “Q. Did he strike out at the officers?
      “A. No.
      “Q. Did he kick the officers?
      “A. I didn’t see him. He could have. I didn’t see him. It wasn’t visible to me.”
      Later, in answer to a question posed by the court, Martello stated that none of the four officers who removed petitioner’s jacket suffered any "marks, bruises, or tom clothing.”
      On cross-examination Officer O’Rourke testified as follows:
      “Q. How was he [petitioner] pushing you around? Did he strike out at someone?
      “A. No. Like a football player going through a line.
      “Q. Did he try to run?

       What transpired after the arrest for vagrancy demonstrates that the officers merely suspected petitioner was involved in the murder because of a superficial resemblance to the wanted man. Officers testified that the reason they wished to remove petitioner’s jacket after he was in custody was to see if his arm was tattooed— that is, to ascertain if petitioner’s resemblance to the murder suspect was more than superficial.