author: Mr. Justice Stewart

text:
    UNITED STATES v. KORDEL et al.
    No. 87.
    Argued November 20, 1969
    Decided February 24, 1970

      Lawrence G. Wallace argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley.

      Solomon H. Friend argued the cause for respondents. With him on the brief was Sheldon S. Lustigman.

   Mr. Justice Stewart

delivered the opinion of the Court.

The respondents are the president and vice president, respectively, of Detroit Vital Foods, Inc. They were convicted in the United States District Court for the Eastern District of Michigan, along with the corporation, for violations of the Federal Food, Drug, and Cosmetic Act. The Court of Appeals for the Sixth Circuit reversed the respondents’ convictions on the ground that the Government’s use of interrogatories to obtain evidence from the respondents in a nearly contemporaneous civil condemnation proceeding operated to violate their Fifth Amendment privilege against compulsory self-incrimination. We granted certiorari to consider the questions raised by the Government's invocation of simultaneous civil and criminal proceedings in the enforcement of federal law.

In March 1960 the Division of Regulatory Management of the Food and Drug Administration (hereafter FDA) instructed the agency’s Detroit office to investigate the respondents’ possible violations of the Food, Drug, and Cosmetic Act. Within a month the Detroit office recommended to the Division a civil seizure of two of the respondents’ products, “Korleen” and “Frutex”; within another month the Division similarly recommended seizure to the FDA’s General Counsel. On June 6, 1960, the General Counsel requested the United States Attorney for the Eastern District of Michigan to commence an in rem action against these products of the corporation, and the United States Attorney filed a libel three days later. The corporation, appearing as the claimant, answered the libel on September 12, 1960. An FDA official in the Division of Regulatory Management then prepared extensive interrogatories to be served on the corporation in this civil action. The United States Attorney filed the agency’s interrogatories on January 6, 1961, pursuant to Rule 33 of the Federal Rules of Civil Procedure.

After the Division official had drafted the interrogatories, he recommended that pursuant to § 305 of the Food, Drug, and Cosmetic Act the FDA serve upon the corporation and the respondents a notice that the agency contemplated a criminal proceeding against them with respect to the transactions that were the subject of the civil action. On January 9, 1961, three days after the filing of the interrogatories in the civil action, the Detroit office received an instruction from the Division to serve the statutory notice. The Detroit office complied 10 days later, and on March 8, 1961, the agency held a hearing on the notice.

On April 10, the corporation, having received the FDA’s interrogatories but not yet having answered them, moved to stay further proceedings in the civil action or, in the alternative, to extend the time to answer the interrogatories until after disposition of the criminal proceeding signaled by the § 305 notice. The motion was accompanied by the affidavit of counsel. The moving papers urged the District Court to act under Rule 33 “in the interest of substantial justice” and as a “balancing of hardship and equities of the respective parties . . . Permitting the Government to obtain proof of violations of the Act by resort to civil discovery procedures, the movant urged, would be “improper” and would “work a grave injustice against the claimant”; it would also enable the Government to have pretrial discovery of the respondents’ defenses to future criminal charges. Counsel expressly disavowed any “issue of a self-incrimination privilege in favor of the claimant corporation.” And nowhere in the moving papers did counsel raise a claim of the Fifth Amendment privilege against compulsory self-incrimination with respect to the respondents.

On June 21,1961, the District Court denied the motion upon finding that the corporation had failed to demonstrate that substantial prejudice and harm would result from being required to respond to the interrogatories. The court reasoned that the § 305 notice did not conclusively indicate the Government would institute a criminal proceeding, that six to 12 months could elapse from the service of the statutory notice to initiation of a criminal prosecution, and that the Government could obtain data for a prosecution from the testimony in the civil action or by subpoenaing the books and records of the corporation. Accordingly, the court concluded, the interests of justice did not require that the Government be denied the information it wanted simply because it had sought it by way of civil-discovery procedures. On September 5, 1961, in compliance with the court’s directive, the corporation, through the respondent Feldten, answered the Government’s interrogatories.

On July 28, 1961, five weeks after the District Court’s order but more than a month before receipt of the answers to the interrogatories, the Director of the FDA’s Detroit office recommended a criminal prosecution to the Division. The Division forwarded the recommendation to the General Counsel on August 31, 1961, still prior to receipt of Feldten’s answers. While the matter was pending in the General Counsel’s office, the Division officer who had originally drafted the proposed interrogatories recommended that additional violations of the statute be alleged in the indictment. On June 13, 1962, the Department of Health, Education, and Welfare requested the Department of Justice to institute a criminal proceeding, and about two months after that the latter department instructed the United States Attorney in Detroit to seek an indictment. The civil case, still pending in the District Court, proceeded to settlement by way of a consent decree in November 1962, and eight months later the Government obtained the indictment underlying the present judgments of conviction.

I

At the outset, we assume that the information Feldten supplied the Government in his answers to the interrogatories, if not necessary to the proof of the Government’s case in the criminal prosecution, as the Court of Appeals thought, at least provided evidence or leads useful to the Government. However, the record amply supports the express finding of the District Judge who presided at the criminal trial, and who held an extensive evidentiary hearing on the respondents’ pretrial motion to suppress evidence, that the Government did not act in bad faith in filing the interrogatories. Rather, the testimony before the trial court demonstrated that the Division of Regulatory Management regularly prepares such interrogatories upon the receipt of claimants’ answers to civil libels, and files them in over three-fourths of such cases, to hasten their disposition by securing admissions and laying the foundation for summary judgments.

The Court of Appeals thought the answers to the interrogatories were involuntarily given. The District Judge’s order denying the corporation’s motion to defer the answers to the interrogatories, reasoned the court, left the respondents with three choices: they could have refused to answer, thereby forfeiting the corporation’s property that was the subject of the libel; they could have given false answers to the interrogatories, thereby subjecting themselves to the risk of a prosecution for perjury; or they could have done just what they did— disclose the requested information, thereby supplying the Government with evidence and leads helpful in securing their indictment and conviction.

In this analysis we think the Court of Appeals erred. For Feldten need not have answered the interrogatories. Without question he could have invoked his Fifth Amendment privilege against compulsory self-incrimination. Surely Feldten was not barred from asserting his privilege simply because the corporation had no privilege of its own, or because the proceeding in which the Government sought information was civil rather than criminal in character.

To be sure, service of the interrogatories obliged the corporation to “appoint an agent who could, without fear of self-incrimination, furnish such requested information as was available to the corporation.” The corporation could not satisfy its obligation under Rule 33 simply by pointing to an agent about to invoke his constitutional privilege. “It would indeed be incongruous to permit a corporation to select an individual to verify the corporation’s answers, who because he fears self-incrimination may thus secure for the corporation the benefits of a privilege it does not have.” Such a result would effectively permit the corporation to assert on its own behalf the personal privilege of its individual agents.

The respondents press upon us the situation where no one can answer the interrogatories addressed to the corporation without subjecting himself to a “real and appreciable” risk of self-incrimination. For present purposes we may assume that in such a case the appropriate remedy would be a protective order under Rule 30 (b), postponing civil discovery until termination of the criminal action. But we need not decide this troublesome question. For the record before us makes clear that even though the respondents had the burden of showing that the Government’s interrogatories were improper, they never even asserted, let alone demonstrated, that there was no authorized person who could answer the interrogatories without the possibility of compulsory self-incrimination. To the contrary, the record shows that nobody associated with the corporation asserted his privilege at all. The respondents do not suggest that Feldten, who answered the interrogatories on behalf of the corporation, did so while unrepresented by counsel or without appreciation of the possible consequences. His failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.

Kordel’s claim of compulsory self-incrimination is even more tenuous than Feldten’s. Not only did Kordel never assert the privilege; he never even answered any interrogatories. The Court of Appeals nevertheless reversed his conviction because it thought it “clear from the record that Detroit Vital Foods, Inc., was merely the corporate device through which Kordel sold his products. The Government naturally wanted to cut through the facade and get to Kordel who was the president and dominant personality in the corporation.” We disagree. The Government brought its libel against the goods; the corporation, not Kordel, appeared as claimant. The Government subsequently prosecuted Kordel as an officer of the company. If anyone has sought to cut through the corporate facade so far as the Fifth Amendment privilege is concerned, it is Kordel: he has, in effect, attempted to fashion a self-incrimination claim by combining testimony that he never gave and an assertion of the privilege that he never made with another assertion of the privilege that his company never had.

The Court of Appeals thought that Kordel must go free in any event because the Government had used Feldten’s admissions in proving its criminal case against both respondents, in violation of the rule in Bruton v. United States. This too was error. Feldten’s admissions were never introduced in evidence at the trial, and thus Kordel cannot maintain that the reception in evidence of a codefendant’s inculpatory statements violated his Sixth Amendment right to confrontation.

II

The respondents urge that even if the Government’s conduct did not violate their Fifth Amendment privilege against compulsory self-incrimination, it nonetheless reflected such unfairness and want of consideration for justice as independently to require the reversal of their convictions. On the record before us, we cannot agree that the respondents have made out either a violation of due process or a departure from proper standards in the administration of justice requiring the exercise of our supervisory power. The public interest in protecting consumers throughout the Nation from misbranded drugs requires prompt action by the agency charged with responsibility for administration of the federal food and drug laws. But a rational decision whether to proceed criminally against those responsible for the misbranding may have to await consideration of a fuller record than that before the agency at the time of the civil seizure of the offending products. It would stultify enforcement of federal law to require a governmental agency such as the FDA invariably to choose either to forgo recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial.

We do not deal here with a case where the Government has brought a civil action solely to obtain evidence for its criminal prosecution or has failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution; nor with a case where the defendant is without counsel or reasonably fears prejudice from adverse pretrial publicity or other unfair injury; nor with any other special circumstances that might suggest the unconstitutionality or even the impropriety of this criminal prosecution.

Overturning these convictions would be tantamount to the adoption of a rule that the Government’s use of interrogatories directed against a corporate defendant in the ordinary course of a civil proceeding would always immunize the corporation’s officers from subsequent criminal prosecution. The Court of Appeals was correct in stating that “the Government may not use evidence against a defendant in a criminal case which has been coerced from him under penalty of either giving the evidence or suffering a forfeiture of his property.” But on this record there was no such violation of the Constitution, and no such departure from the proper administration of criminal justice.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice Black did not take part in the decision of this case.

       52 Stat. 1040, 21 U. S. C. § 301 et seq.

        United States v. Detroit Vital Foods, Inc., 407 F. 2d 570. The Court of Appeals initially reversed the judgments of conviction of all three defendants, but on the Government’s petition for rehearing it affirmed with respect to the corporation.

       395 U. S. 932.

       Rule 33 provides in pertinent part: “Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party.”

       Section 305 of the Act, 21 U. S. C. § 335, provides:
      “Before any violation of [the Act] ... is reported by the Secretary [of the Department of Health, Education, and Welfare] to any United States attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard to such contemplated proceeding.” Service of the statutory notice did not necessarily mean that a criminal prosecution would follow; the testimony before the District Court on the respondents’ pretrial motion to suppress evidence indicated that fewer than 10% of the matters involving a § 305 notice reach the stage of either indictment or information.

       Compare 407 F. 2d, at 575, with id., at 572.

        Id., at 573.

        Wilson v. United States, 221 U. S. 361, 377, 385; Boyd v. United States, 116 U. S. 616, 633-635; cf. United States v. 42 Jars . . . “Bee Royale Capsules,” 162 F. Supp. 944, 946, aff’d, 264 F. 2d 666.

        Curcio v. United States, 354 U. S. 118, 124; Wilson v. United States, supra, at 385; United States v. 3963 Bottles ... of .. . “Enerjol Double Strength,” 265 F. 2d 332, 335-336, cert. denied, 360 U. S. 931; United States v. 30 Individually Cartoned Jars . . . “Ahead Hair Restorer . . . ,” 43 F. R. D. 181, 187; cf. Shapiro v. United States, 335 U. S. 1, 27. That the corporation has no privilege is of course long established, and not disputed here. See George Campbell Painting Corp. v. Reid, 392 U. S. 286, 288-289; Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 196, 208, 209-210; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 726-727;
        Essgee Co. v. United States, 262 U. S. 151, 155-156; Wheeler v. United States, 226 U. S. 478, 489-490; Baltimore & Ohio R. Co. v. ICC, 221 U. S. 612, 622-623; Hale v. Henkel, 201 U. S. 43, 74-75; cf. Curcio v. United States, supra; United States v. White, 322 U. S. 694, 698, 705.

        Gardner v. Broderick, 392 U. S. 273, 276; McCarthy v. Arndstein, 266 U. S. 34, 40; Counselman v. Hitchcock, 142 U. S. 547, 562, 563-564; Boyd v. United States, supra; United States v. Saline Bank, 1 Pet. 100, 104; 8 J. Wigmore, Evidence §2257, pp. 339-340 (McNaughton rev. 1961); C. McCormick, Evidence § 123, p. 259 (1954).

        United States v. 3963 Bottles ... of .. . “Enerjol Double Strength,” supra, at 336; cf. United States v. 48 Jars . . . “Tranquilease,” 23 F. R. D. 192, 195, 196; 2A W. Barron & A. Holtzoff, Federal Practice and Procedure § 651, p. 101 (Wright ed. 1961).

        United States v. 3963 Bottles ... of .. . “Enerjol Double Strength,” supra, at 336.

       Cf. George Campbell Painting Corp. v. Reid, supra, at 289; Hale v. Henkel, supra, at 69-70.

       Cf. Minor v. United States, 396 U. S. 87, 98; Leary v. United States, 395 U. S. 6, 16; Marchetti v. United States, 390 U. S. 39, 48; Mason v. United States, 244 U. S. 362, 365.

       See Paul Harrigan & Sons v. Enterprise Animal Oil Co., 14 F. R. D. 333.

        Lucy v. Sterling Drug, Inc., 240 F. Supp. 632, 634; Click v. McKesson & Robbins, Inc., 10 F. R. D. 477, 479, 480; Bowles v. Safeway Stores, Inc., 4 F. R. D. 469, 470; Blanc v. Smith, 3 F. R. D. 182, 183. The respondents, urging that the Government had the burden of establishing the availability of an agent to answer for the corporation, rely upon the decision of the Court of Appeals for the District of Columbia Circuit in Communist Party v. United States, 118 U. S. App. D. C. 61, 331 F. 2d 807, cert. denied, 377 U. S. 968. But there the court departed from the customary allocation of the burden on the ground that the mere act of volunteering the information sought, or even of showing that an effort had been made to find someone who would answer, was itself potentially incriminatory. Id., at 68-69, 331 F. 2d, at 814-815.

       See United States v. American Radiator & Standard Sanitary Corp., 388 F. 2d 201, 204, cert. denied, 390 U. S. 922; United States v. Simon, 373 F. 2d 649, 653, cert. granted sub nom. Simon v. Wharton, 386 U. S. 1030, vacated as moot, 389 U. S. 425; but see National Discount Corp. v. Holzbaugh, 13 F. R. D. 236, 237.

        Gardner v. Broderick, 392 U. S. 273, 276; Rogers v. United States, 340 U. S. 367, 372-375; United States v. Monia, 317 U. S. 424, 427; Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113; Brown v. Walker, 161 U. S. 591, 597.

       407 F. 2d, at 575.

       391 U. S. 123. See 407 F. 2d, at 575.

       See Bruton v. United States, supra, at 126.

       Cf. Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 51-52 (Sherman Act).

       Cf. United States v. Procter & Gamble Co., 356 U. S. 677, 683-684; United States v. Pennsalt Chemicals Corp., 260 F. Supp. 171; and see United States v. Thayer, 214 F. Supp. 929; Beard v. New York Central R. Co., 20 F. R. D. 607.

       See Smith v. Katzenbach, 122 U. S. App. D. C. 113, 114-116, 351 F. 2d 810, 811-813; United States v. Lipshitz, 132 F. Supp. 519, 523; United States v. Guerrina, 112 F. Supp. 126, 128.

       Cf. Nelson v. United States, 93 U. S. App. D. C. 14, 19, 21, and n. 19, 208 F. 2d 505, 510, 512, and n. 19, cert. denied, 346 U. S. 827.

       Cf. United States v. American Radiator & Standard Sanitary Corp., 388 F. 2d 201, 204-205, cert. denied, 390 U. S. 922.

         Federal courts have deferred civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seemed to require such action, sometimes at the request of the prosecution, Campbell v. Eastland, 307 F. 2d 478, cert. denied, 371 U. S. 955; United States v. Bridges, 86 F. Supp. 931, 933; United States v. 30 Individually Cartoned Jars . . . “Ahead Hair Restorer 43 F. R. D. 181, 187 n. 8; United States v. One 1964 Cadillac Coupe DeVille, 41 F. R. D. 352, 353-354; United States v. $2,437 United States Currency, 36 F. R. D. 257; United States v. Steffes, 35 F. R. D. 24; United States v. Maine Lobstermen’s Assn., 22 F. R. D. 199; United States v. Cigarette Merchandisers Assn., 18 F. R. D. 497; United States v. Linen Supply Institute, 18 F. R. D. 452; sometimes at the request of the defense, Kaeppler v. Jas. H. Matthews & Co., 200 F. Supp. 229; Perry v. McGuire, 36 F. R. D. 272; cf. Nichols v. Philadelphia Tribune Co., 22 F. R. D. 89, 92.

       407 F. 2d, at 575-576


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Douglas,

license: Public Domain

text:
    UNITED STATES v. REYNOLDS et ux.
    No. 88.
    Argued January 14, 1970
    Decided February 24, 1970

      Assistant Attorney General Kashiwa argued the cause for the United States. With him on the brief were Solicitor General Griswold, Raymond N. Zagone, and Robert S. Lynch.

      Erwin S. Solomon argued the cause and filed a brief for respondents.
   Mr. Justice Stewart

delivered the opinion of the Court.

The United States brought this suit in the United States District Court for the Western District of Kentucky to condemn more than 250 acres of the respondents’ land for a federal development known as the Nolin Reservoir Project located in that State. An important issue in the case was raised by the respondents’ claim that 78 acres of the land, taken for construction of recreational facilities adjacent to the reservoir, had not been within the original scope of the project. A jury awarded the respondents $20,000 as just compensation for all the land taken. Upon an appeal by the respondents, the Court of Appeals for the Sixth Circuit reversed the judgment and ordered a new trial, finding that the District Judge in his instructions to the jury had erroneously referred to matters disclosed outside the jury’s presence. The trial and appellate courts were in agreement, however, in rejecting the Government’s contention that the “scope-of-the-project” issue was for the trial judge to decide and should not, therefore, have been submitted to the jury at all. There being a conflict between the circuits on this question, we granted certiorari to consider a recurring problem of importance in federal condemnation proceedings. 396 U. S. 814.

The Fifth Amendment provides that private property shall not be taken for public use without just compensation. And “just compensation” means the full monetary-equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken. In enforcing the constitutional mandate, the Court at an early date adopted the concept of market value: the owner is entitled to the fair market value of the property at the time of the taking. But this basic measurement of compensation has been hedged with certain refinements developed over the years in the interest of effectuating the constitutional guarantee. It is one of these refinements that is in controversy here.

The Court early recognized that the “market value” of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary. And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the “just compensation” that the Constitution requires. On the other hand, the development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking.

In United States v. Miller, 317 U. S. 369, the Court gave full articulation to these principles:

“If a distinct tract is condemned, in whole or in part, other lands in the neighborhood may increase in market value due to the proximity of the public improvement erected on the land taken. Should the Government, at a later date, determine to take these other lands, it must pay their market value as enhanced by this factor of proximity. If, however, the public project from the beginning included the taking of certain tracts but only one of them is taken in the first instance, the owner of the other tracts should not be allowed an increased value for his lands which are ultimately to be taken any more than the owner of the tract first condemned is entitled to be allowed an increased market value because adjacent lands not immediately taken increased in value due to the projected improvement.
“The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement. If, on the other hand, they were, the Government ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The owners ought not to gain by speculating on probable increase in value due to the Government’s activities.” 317 U. S., at 376-377.

There is no controversy in the present case regarding these basic principles. The parties agree that if the acreage in issue was “probably within the scope of the project from the time the Government was committed to it,” substantially less compensation is due than if it was not. For if the property was probably within the project’s original scope, then its compensable value is to be measured in terms of agricultural use. If, on the other hand, the acreage was outside the original scope of the project, its compensable value is properly measurable in terms of its economic potential as lakeside residential or recreational property.

The issue between the parties is simply whether the “scope-of-the-project” question is to be determined by the trial judge or by the jury. There is no claim that the issue is of constitutional dimensions. For it has long been settled that there is no constitutional right to a jury in eminent domain proceedings. See Bauman v. Ross, 167 U. S. 548, 593. As Professor Moore has put the matter:

“The practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain.”

It is not, therefore, to the Seventh Amendment that we look in this case, but to the Federal Rules of Civil Procedure. Rule 71A (h) provides that, except in circumstances not applicable here, “any party” to a federal eminent domain proceeding “may have a trial by jury of the issue of just compensation,” unless the court in its discretion orders that that issue “shall be determined by a commission of three persons appointed by it. ... Trial of all issues shall otherwise be by the court.” The Rule thus provides that, except for the single issue of just compensation, the trial judge is to decide all issues, legal and factual, that may be presented. The critical inquiry is thus whether “the issue of just compensation,” as that phrase is used in the Rule, is broad enough to embrace the question whether the condemned property was probably within the scope of the federal project.

Although the matter could be decided either way without doing violence to the language of Rule 71A (h), we think the Rule’s basic structure makes clear that a jury in federal condemnation proceedings is to be confined to the performance of a single narrow but important function — the determination of a compensation award within ground rules established by the trial judge. The Rule gives the trial court discretion to eliminate a jury entirely. And when a jury is afforded, the sweeping language of the final sentence of the Rule discloses a clear intent to give the district judge a role in condemnation proceedings much broader than he occupies in a conventional jury trial. It is for him to decide “all issues” other than the precise issue of the amount of compensation to be awarded. It follows that it is for the judge to tell the jury the criteria it must follow in determining what amount will constitute just compensation, and that in order to do so he must decide the “scope-of-the-project” issue as a preliminary matter. We therefore approve and adopt the procedural rule announced by the Court of Appeals for the Fifth Circuit in Wardy v. United States, 402 F. 2d 762, and hold that it is for the judge and not the jury to decide whether the property condemned was probably within the project’s original scope.

Finally, the Government asks us to take this occasion to “clarify” the “scope-of-the-project” test. We think the test was stated with admirable clarity by a unanimous Court in Miller: if the “lands were probably within the scope of the project from the time the Government was committed to it,” no enhancement in value attributable to the project is to be considered in awarding compensation. As with any test that deals in probabilities, its application to any particular set of facts requires discriminating judgment. The rule does not require a showing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use.

The judgment of the Court of Appeals is vacated, and the case is remanded to the United States District Court for the Western District of Kentucky for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

All constitutional questions aside, there was in the present case a right to trial by jury on “the issue of just compensation” as provided in Rule 71A (h). I do not see how “the issue of just compensation” can be decided without considering whether or not the property was probably within or not within the project's original scope. As the opinion of the Court makes plain, important questions of value turn on that decision. In this case it is seen in the difference between the value of the property as agricultural land and its value as potential lakeside residential or recreational property.

If it were certain beyond doubt that the property was within the original scope of the project, a different question might be presented. But there is nothing in this record to show that respondents’ property was included in the original design. We deal here with probabilities or perhaps with possibilities. If the property were not within the original design, a purchaser could reasonably anticipate that he would be able to devote the land to its highest economic use reflected in part by its proximity to the Government’s project. Henry George would have it otherwise; but that has not been the direction of our economy. Hence what we are talking about is market value and that in turn includes all of the ingredients that make up price. The most central element of price in the area now litigated was the relation of the land to the original project and that issue was one of fact. The “issue of just compensation” as used in Rule 71A (h) truly cannot be resolved without considering that question.

There seems to be no reason why the jury chosen by Congress to decide the final issue of "just compensation” should be denied the power to determine the subordinate issues of fact upon which the jury’s final verdict must rest.

There are powerful forces loose in this country that deprecate the use of juries. The Department of Justice and other federal agencies often seem to dislike juries in condemnation cases. In my Circuit, juries have unexpectedly risen up in favor of homeowners and against Washington, D. C., and granted “just compensation” in large sums, in retaliation, it is believed, against hard-nosed officials who, with all the power of the central government, seek to plow them under. At other times the jury has acted differently and cut down the award. Juries in these condemnation cases perform, in other words, an historic restraint on both executive and judicial power. See Bushell’s Case. 6 How. St. Tr. 999, decided in 1670.

       Congress authorized the Nolin Reservoir Project in 1938 as part of a comprehensive flood control plan for the Ohio and Mississippi Rivers. See Act of June 28, 1938, § 4, 52 Stat. 1217. Congress first appropriated funds for the planning stage of the project in 1956. See Public Works Appropriation Act of 1957, 70 Stat. 479. In July 1958 the Chief of Army Engineers approved a general design memorandum contemplating the construction of recreational areas in connection with the project, but evidently not specifying where they would be. The first funds for construction were appropriated in 1958. See Public Works Appropriation Act of 1959, 72 Stat. 1573. Construction began in January 1959.
      Most of the respondents’ acreage condemned by the Government was taken because it would be inundated by the reservoir, and there is no question that this land was within the original scope of the project. But 78 acres of the tract were taken for the construction of recreational facilities adjacent to the reservoir itself. These 78 acres were not referred to in a design memorandum submitted in June 1959. They were, however, designated for taking in a memorandum approved in October of that year. It has been Government policy to build recreational areas in conjunction with federal reservoir projects since 1944. Act of December 22, 1944, § 4, 58 Stat. 889.

        United States v. 811.92 Acres of Land, 404 F. 2d 303.

       The Court of Appeals for the Fifth Circuit has held that the “scope-of-the-project” issue is to be determined by the trial judge. Wardy v. United States, 402 F. 2d 762, 763.

         Monongahela Navigation Co. v. United States, 148 U. S. 312, 326.

        United States v. New River Collieries Co., 262 U. S. 341, 343; Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 304.

         New York v. Sage, 239 U. S. 57, 61; Boom Co. v. Patterson, 98 U. S. 403, 408.

        Kerr v. South Park Commissioners, 117 U. S. 379, 386.

        Shoemaker v. United States, 147 U. S. 282, 304-305.

        United States v. Virginia Electric & Power Co., 365 U. S. 624, 635-636; United States v. Cors, 337 U. S. 325, 332-334.

        United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 81; Boom Co. v. Patterson, supra.

         5 J. Moore, Federal Practice ¶38.32 [1], p. 239 (2d ed. 1969). (Footnote omitted.)

       The full text of Rule 71A (h) is as follows:
      “If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons appointed by it. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53. Trial of all issues shall otherwise be by the court.”

       In United States v. Miller, supra, it appears that that question was decided by the trial judge, who excluded all evidence of enhanced value attributable to the project. 317 U. S., at 372-373. While this Court's opinion in Miller approved of that procedure, it is to be remembered that the case was decided before the adoption of Rule 71A (h) in 1951, at a time when federal courts in condemnation proceedings followed the procedures of the States in which they were located. See Advisory Committee Notes to Rule 71A; 7 J. Moore, supra, ¶ 71A.03, p. 2716 (2d ed. 1968).

       “The question was whether appellants’ ‘lands were probably within the scope of ,the project from the time the Government was committed to it.’ . . . Appellants contend that the jury should have been allowed to answer this question. Under rule 71A (h) the jury’s function is limited to determining ‘just compensation.’ It is the duty of the court to decide the legal issues, as well as all other fact issues. [Citations omitted.] Thus, instead of infringing on the jury’s functions, the judge merely decided a legal question which limited the factors necessary to the determination of ‘just compensation.’ ” Wardy v. United States, 402 F. 2d, at 763. See also Scott Lumber Co. v. United States, 390 F. 2d 388, 392 (C. A. 9th Cir.); United States v. 91.69 Acres of Land, 334 F. 2d 229, 231-232 (C. A. 4th Cir.).

       Compare John L. Roper Lumber Co. v. United States, 150 F. 2d 329, 332, with Scott v. United States, 146 F. 2d 131, 132-133.

       Progress and Poverty, Book VI (50th Ann. ed. 1945).

       In United States v. Certain Lands, 144 F. Supp. 206, a road was taken and the question of “just compensation” turned on whether the construction of a substitute facility was necessary. The court held that that issue of necessity was properly left to the jury:
      “In the average condemnation proceeding, many factors must be considered in arriving at just compensation, factors which are only established and available after the exercise of a fact-finding process. There appears to be no reason for introducing a trial by jury into condemnation proceedings unless the jury’s province is broad enough to include the weighing of evidence which directly relates to the issue of compensation. It would seem that in this case the determination as to whether any substitute facilities are required at all is indeed a part of the ‘issue of just compensation/ one of the factors to be taken into account by the jury in reaching its verdict.” Id., at 214.

       The present Rule 71A, which in absence of an Act of Congress gives the courts discretion to have the issue of compensation decided by a commission of three, was inspired by the Act governing condemnations by the TVA which required the appointment of a commission in all cases, 48 Stat. 70. See Notes of Advisory Committee, 28 U. S. C., following Rule 71A. But that Act was amended in 1968. See 82 Stat. 885, 16 U. S. C. § 831x (1964 ed., Supp. IV). Under the bill as reported out of the Senate Committee on Public Works either party had on demand “an absolute right to a jury trial.” S. Rep. No. 930, 90th Cong., 1st Sess., 2. “Proponents of the legislation indicated that no landowner should be denied his basic right to a trial by jury involving the condemnation of his property. In addition, it was indicated that the absence of a right to a jury trial had generated friction between TVA and landowners which was seriously affecting the public relations of that agency.” Ibid.

      The Senate Committee stated: “While the committee makes no judgment as to the benefits of either the commissioner or jury-trial system, it does feel that a right to trial-by-jury is basic to our American way of life, and accordingly recommends adoption of this legislation.” Id., at 3.
      That bill was amended on the floor of the Senate to modify the provision for an absolute right to jury trial by making Rule 71A applicable to TVA condemnation proceedings. The discussion in support of this amendment, however, again stressed the general dissatisfaction with the commission system, and emphasized the right to jury trial in all but the most “extraordinary circumstances.” 113 Cong. Rec. 36979-36981.

       See John L. Roper Lumber Co. v. United States, 150 F. 2d 329, where the jury refused the land owner any increment of value occasioned by the land’s proximity to the project.


author: Me. Justice White

text:
    CZOSEK et al. v. O’MARA et al.
    No. 234.
    Argued January 13, 1970
    Decided February 24, 1970

      Richard R. Lyman argued the cause for petitioners. With him on the brief was Clarence M. Mulholland.

      James P. Shea argued the cause for respondents O’Mara et al. On the brief was William B. Mahoney. Richard F. Griffin argued the cause for respondent Erie Lackawanna Railroad Co. With him on the brief were Thomas G. Rickert and Courtland R. LaVallee.

   Me. Justice White

delivered the opinion of the Court.

In 1960, the corporate respondent, Erie Lackawanna Railroad Company, was formed by the merger of the Erie Railroad and the Delaware, Lackawanna & Western Railroad. Thereafter, the individual respondents, former employees of the Delaware Lackawanna, continued as employees of the Erie Lackawanna until 1962, when they were furloughed; after the 1962 furlough, the respondent employees were never recalled by the railroad. Deeming the furlough a final discharge, the individual respondents brought suit in the District Court for the Western District of New York against the Erie Lacka-wanna and against the International Brotherhood of Firemen and Oilers, subordinate organizations within the union, and local and national officers of the union. The allegations were that the railroad had wrongfully discharged the plaintiffs in violation of § 5 et seq. of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U. S. C. § 5 et seq., the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq., and the agreement between the Erie Lackawanna and its employees entered into to implement the 1960 merger of the Erie and the Delaware Lackawanna; and that the union defendants had been “guilty of gross nonfeasance and hostile discrimination” in arbitrarily and capriciously refusing to process the claims of plaintiffs, who had “been replaced by ‘pre-merger’ employees of the Erie Railroad.” Damages in the sum of $160,000 were sought against the railroad, the union defendants, or both. The District Court dismissed the complaint against the railroad for failure to exhaust administrative remedies under the Railway-Labor Act and for lack of diversity jurisdiction; the court dismissed the complaint against the union because the complaint failed adequately to allege a breach of duty and because the employees could have processed their own grievances.

On appeal, the Court of Appeals for the Second Circuit reversed the District Court’s decision with respect to the action against the union defendants. O’Mara v. Erie Lackawanna R. Co., 407 F. 2d 674 (1969). The Court of Appeals held that the complaint was adequate to allege a breach by the union of its duty of fair representation subject to vindication in the District Court without resort to administrative remedies. Dismissal of the complaint against the railroad was affirmed; but on remand the individual respondents were to be granted leave to maintain their action against the railroad if they should choose to amend their complaint to allege that the employer was somehow implicated in the union’s discrimination.

We granted certiorari, 396 U. S. 814 (1969), and we affirm the judgment of the Court of Appeals. Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, “where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation,” complaints should be construed to avoid dismissals and the plaintiff at the very least “should be given the opportunity to file supplemental pleadings unless it appears 'beyond doubt’ that he cannot state a good cause of action.” 407 F. 2d, at 679. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). And surely it is beyond cavil that a suit against the union for breach of its duty of fair representation is not within the jurisdiction of the National Railroad Adjustment Board or subject to the ordinary rule that administrative remedies should be exhausted before resort to the courts. Glover v. St. Louis-S. F. R. Co., 393 U. S. 324 (1969); Conley v. Gibson, supra. The claim against the union defendants for the breach of their duty of fair representation is a discrete claim quite apart from the right of individual employees expressly extended to them under the Railway Labor Act to pursue their employer before the Adjustment Board.

Neither the individual respondents nor the railroad sought review here of the Court of Appeals’ judgment insofar as it sustained the dismissal of the complaint against the railroad absent allegations implicating the railroad in the union’s claimed breach of duty. The petitioning union defendants, however, challenge this aspect of the Court of Appeals’ decision, insisting that they may not be sued alone for breach of duty when the damage to employees had its roots in their discharge by the railroad prior to the union’s alleged refusal to process grievances. Apparently fearing that if sued alone they may be forced to pay damages for which the employer is wholly or partly responsible, the petitioners claim error in the Court of Appeals’ affirmance of the dismissal of the suit against the railroad. These fears are groundless. The Court of Appeals permitted the railroad to be made a party to the suit if it is properly alleged that the discharge was a consequence of the union’s discriminatory conduct or that the employer was in any other way implicated in the union’s alleged discriminatory action. If these allegations are not made and the employer is not a party defendant, judgment against petitioners can in any event be had only for those damages that flowed from their own conduct. Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer. If both the union and the employer have independently caused damage to employees, the union cannot complain if separate actions are brought against it and the employer for the portion of the total damages caused by each.

Since the petitioning union defendants will not be materially prejudiced by the possible absence of the respondent railroad as a codefendant at trial and since neither the railroad nor the aggrieved employees sought review of the Court of Appeals’ judgment, we have no occasion to consider whether under federal law, which governs in cases like these, the employer may always be sued with the union when a single series of events gives rise to claims against the employer for breach of contract and against the union for breach of the duty of fair representation or whether, as the Court of Appeals held, when there are no allegations tying union and employer together, the union is suable in the District Court for breach of duty but resort must be had to the Adjustment Board for a remedy against the employer.

Affirmed.

The Chief Justice would dismiss the writ of certiorari as improvidently granted.

       Section 3 First (i) of the Railway Labor Act, 45 U. S. C. § 153 First (i), authorizes reference to the Adjustment Board of disputes “between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions . . . .” Section 3 First (j) of the Act, 45 U. S. C. § 153 First (j), provides that “[pjarties may be heard either in person, by counsel, or by other representatives, as they may respectively elect . . . .” The individual employee’s rights to participate in the processing of his grievances “are statutory rights, which he may exercise independently or authorize the union to exercise in his behalf.” Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 740 n. 39 (1945), adhered to on rehearing, 327 U. S. 661 (1946).

       See Glover v. St. Louis-S. F. R. Co., 393 U. S. 324 (1969); Cunningham v. Erie R. Co., 266 F. 2d 411 (C. A. 2d Cir. 1959); Richardson v. Texas & N. O. R. Co., 242 F. 2d 230 (C. A. 5th Cir. 1957). See also Ferro v. Railway Express Agency, Inc., 296 F. 2d 847 (C. A. 2d Cir. 1961).

       See Vaca v. Sipes, 386 U. S. 171, 196-198 (1967).


author: Per Curiam. Mb. Justice Douglas,

text:
    JONES v. STATE BOARD OF EDUCATION OF TENNESSEE et al.
    No. 731.
    Argued January 19-20, 1970
    Decided February 24, 1970

      Beber F. Boult, Jr., argued the cause for petitioner. With him on the briefs were Charles Morgan, Jr., Richard Bellman, Melvin L. Wulf, and Eleanor H. Norton.

      Robert H. Roberts, Assistant Attorney General of Tennessee, argued the cause for respondents. With him on the brief were David M. Pack, Attorney General, and Thomas E. Fox, Deputy Attorney General.
   Per Curiam.

Petitioner Jones was suspended indefinitely as a student at Tennessee A. & I. State University in the summer 1967. His indefinite suspension was confirmed after a hearing in September of that year, in which charges against him were specified, evidence taken, and findings made. He, along with two other suspended students, brought suit in the United States District Court for the Middle District of Tennessee, seeking to set aside the suspension on First Amendment and due process grounds. After a hearing, the District Court granted judgment on merits to defendants with an opinion. 279 F. Supp. 190 (1968). On appeal the Court of Appeals for the Sixth Circuit affirmed. 407 F. 2d 834 (1969). We granted certiorari, 396 U. S. 817 (1969), primarily to consider the issues raised by Jones’ claim that he had been separated from the university solely because of his distribution of leaflets urging a boycott of fall registration.

After oral argument, and on closer review of the record, it emerges — as it did not from the certiorari papers or the opinions of the District Court and the Court of Appeals — that Jones’ indefinite suspension was based in part on a finding that he lied at the hearing on the charges against him. This fact sufficiently clouds the record to render the case an inappropriate vehicle for this Court’s first decision on the extent of First Amendment restrictions upon the power of state universities to expel or indefinitely suspend students for the expression of views alleged to be disruptive of the good order of the campus. Accordingly the writ of certiorari is dismissed as improvidently granted.

It is so ordered.

Mb. Justice Black, for reasons set out in the above opinion and others stated in his dissent in Tinker v. Des Moines School Dist., 393 U. S. 503, 515-526, would affirm the judgment below.

Mb. Justice Douglas,

with whom Mb. Justice Bbetstnan concurs,

dissenting.

Petitioner, a student at Tennessee A. & I. State University, was dismissed from the school on charges preferred by a Faculty Advisory Committee and heard by it. One of the charges read as follows:

“You are charged with distributing literature and soliciting students, all of which was designed to boycott the registration at the University for the Fall Quarter 1967. This occurred during the Summer of 1967.”

The literature urging a boycott of registration was a pamphlet which is printed in the Appendix to this opinion.

Petitioner, being suspended indefinitely, brought this suit in the District Court for an injunction and other relief. That court denied relief, 279 F. Supp. 190, and the Court of Appeals affirmed. 407 F. 2d 834. Our failure to reverse is a serious setback for First Amendment rights in a troubled field.

The leaflet now censored may be ill-tempered and in bad taste. But we recognized in Terminiello v. Chicago, 337 U. S. 1, that even strongly abusive utterances or publications, not merely polished and urbane pronouncements of dignified people, enjoy First Amendment protection. We said in Terminiello:

“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Id,., at 4.

Students are certainly entitled to enjoy First Amendment rights. West Virginia v. Barnette, 319 U. S. 624, 637; Sweezy v. New Hampshire, 354 U. S. 234, 250. This does not mean that free speech can be used with impunity as an excuse to break up classrooms, to destroy the quiet and decorum of convocations, or to bar the constitutional privileges of others to meet together in matters of common concern. But the campus, where this leaflet was distributed, is a fitting place for the dissemination of a wide spectrum of ideas.

Moreover, it is far too late to suggest that since attendance at a state university is a “privilege,” not a “right,” there are no constitutional barriers to summary withdrawal of the “privilege.” Such labeling does not resolve constitutional questions, as we recently noted in Shapiro v. Thompson, 394 U. S. 618, 627 n. 6. The doctrine that a government, state or federal, may not grant a benefit or privilege on conditions requiring the recipient to relinquish his constitutional rights is now well established. E. g., Cafeteria Workers v. McElroy, 367 U. S. 886, 894; Sherbert v. Verner, 374 U. S. 398, 404; Speiser v. Randall, 357 U. S. 513, 519-520; Garrity v. New Jersey, 385 U. S. 493, 499-500; Kwong Hai Chew v. Golding, 344 U. S. 590, 597-598; Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583, 593-594; see Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-1454 (1968); Comment, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968). As stated in Homer v. Richmond, 292 F. 2d 719, 722:

“One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.”

This does not mean that the whole panoply of the Bill of Rights is applicable to student dismissal proceedings. It does mean, however, that where there are “constitutional restraints upon state and federal governments” in dealing with the persons subject to their supervision, the persons in question have “a constitutional right to notice and a hearing before they can be removed.” Cafeteria Workers v. McElroy, supra, at 898.

Judge Rives, speaking for the Court of Appeals for the Fifth Circuit, stated in Dixon v. Alabama State Board, 294 F. 2d 150, 157: “[No] one can question that the right to remain at the college in which the plaintiffs were students in good standing is an interest of extremely great value.” Judge Rives went on to hold that such “privilege” or “right” could not be taken away without notice and hearing. Id., at 158. Thus the dissent of Judge Clark in Steier v. New York State Education Comm’r, 271 F. 2d 13, 22-23, became the law. See Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1028-1034 (1969).

When we look at the present proceeding we learn that there was notice and that there were hearings. The charge was circulating the leaflet, which clearly was a First Amendment right. As we said in Tinker v. Des Moines School Dist., 393 U. S. 503, 506:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

At the very least the suspension raises a serious constitutional question in the absence of provision for a timely judicial determination of the First Amendment claims. Cf. Freedman v. Maryland, 380 U. S. 51.

The circulation did not disrupt a classroom or any other university function. It would seem, therefore, that it is immune from punishment, censorship, and any form of retaliatory action.

“Neither the state in general, nor the state university in particular, is free to prohibit any kind of expression because it does not like what is being said.” Wright, supra, at 1039.

The suspension of petitioner was based in part on distributing the literature and in part on the committee’s conclusion that, when petitioner at the hearing denied that he “passed out such literature,” he “did not tell the truth.”

But lying to school authorities was no part of the charges leveled against petitioner. If he is to be expelled for lying, he is entitled to notice and opportunity to be heard on that charge. We said in a case involving the disbarment of a lawyer, “The charge must be known before the proceedings commence.” In re Ruffalo, 390 U. S. 544, 551. In that case one of the grounds of disbarment was petitioner’s employment of one Orlando as an investigator. That was not included in any charge made prior to the disbarment hearing. Petitioner was not aware that it would be considered as a disbarment offense until after both he and Orlando testified on all aspects of that phase of the case. We said that disbarment proceedings

“become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.
“How the charge would have been met had it been originally included in those leveled against petitioner ... no one knows.
“This absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process.” Id., at 551-552.

Procedural due process in the present case requires that if petitioner is to be deprived of an education at Tennessee A. & I. for lying, he be given notice of that precise charge and an opportunity to be heard.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

“In the early years of the civil rights movement in America, college students in Nashville’s black universities were in the forefront of the struggle. Today, a new vanguard has formed and once again, students at Tennessee State University are called to the helm.

“The great white fathers downtown have given the ultimatum to the administrators of this school. They’ve begun the conspiracy to seize total control of the puppet administrators and the entire student body. For their own security, and in the vested interest of the MAN, the Juda administration has sold out the student body by directing the following atrocities against us:

“1. Students whose names appeared in the Nashville rags — namely the Banner and the Tennessean — in connection with the April ‘disturbances’ have been dismissed from this university without pre-warning of their dismissal, and without the opportunity to appear before the student senate to hear the charges brought against them, and to appeal their cases.
“COMMENT: If the puppets want to adopt the uncivilized tactics used by the MAN, we must move to correct these erroneously acting, educated TOMS.
“2. Legislation has been taken to decrease the number of out-of-state students by increasing out-of-state fees, and adopting rigid academic standards.
“COMMENT: The puppet fools have taken this action to remove academic freedom, and student dissent from university life. Thus they secure their own shaky jobs, and their positions in the circus of white man’s society. These people are too blind to see that the MAN initiated these moves so that he may ‘morally’ proceed to infiltrate our black university with his teachers and students who are more adept in perpetuating his culture than the puppets who are already here.
“3. Non-city students have been required to move on campus with an increase in dormitory fees.
“COMMENT: Thus the campus will become a concentration camp controlled and contained by the legislation of the racist dogs downtown, the acts of the puppet administrators, the billy clubs and guns of Nashville’s racist cops, and ultimately the gestapo tactics of the honorable national guard, whose pale faces have already been seen in Memphis, Nashville, Chattanooga.

“No longer can we as intelligent human beings allow others to make a charade of democratic principle by submitting to the tyranny of a dictatorial administration. Let it be resolved that . . .

“1. We as students of this university will not allow ourselves to be herded into concentration camps disguised as the ‘university campus.’
“2. We, as intelligent black students, will not be guarded by trembling, powerless idiots who call themselves administrators.
“3. We, as black human beings will not be recorded in the pages of history as an ununified race of people, exterminated by the guns of submission and hate.

“A generation of inactivity has given today’s black students [a] responsibility of informing and uniting our fellow classmates so that we can fight to remove the injustices directed against us as black people.

“CAST YOUR VOTE FOR STUDENT POWER ! ! ! BOYCOTT REGISTRATION SEPTEMBER 23 AND FOR AS LONG AS THE PUPPET ADMINISTRATION REFUSES TO ACKNOWLEDGE THAT THIS IS OUR UNIVERSITY!

SNCC.”


author: Per Curiam.

text:
    CONTRACTORS CARGO CO. v. UNITED STATES et al.
    No. 912.
    Decided February 24, 1970

      William P. Sullivan and William P. Jackson, Jr., for appellant.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Nahum Litt for the United States et al., and Wyman G. Knapp for Dealers Transit, Inc., et al., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    TURNER et al. v. CLAY et al.
    No. 982.
    Decided February 24, 1970

      Harry M. Lightsey, Jr., for appellants.

      Huger Sinkler for Clay et al., and Daniel R. McLeod, Attorney General of South Carolina, and C. Tolbert Goolsby, Jr., Assistant Attorney General, for Thornton, Secretary of State of South Carolina, appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question.


text:
    PRE-FAB TRANSIT CO. v. UNITED STATES et al.
    No. 988.
    Decided February 24, 1970

      Edward, K. Wheeler, Robert G. Seaks, and Robert E. Joyner for appellant.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, Robert W. Ginnane, Fritz R. Kahn, and Nahum, Litt for the United States et al., Martin J. Leavitt for Miami Transportation Co., Inc., et al., and James E. Wilson and Edioard G. Villalon for Hennis Freight Lines, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    LOCKE v. CALIFORNIA
    No. 1008.
    Decided February 24, 1970

      Julian Herndon, Jr., for appellant.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was ta.ken as a petition for a writ of certiorari, certiorari is denied.


text:
    CHEMICAL LEAMAN TANK LINES, INC., et al. v. UNITED STATES et al.
    No. 880.
    Decided February 24, 1970

      Phineas Stevens, Thomas E. James, and Harry C. Ames, Jr., for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, Fritz R. Kahn, and Jerome E. Sharfman for the United States et al., and Earl T. Thomas for Bell, dba Bell Transport Co., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    KELLER v. DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL OF CALIFORNIA
    No. 1009.
    Decided February 24, 1970

      Burton Marks for appellant.
   Per Curiam.

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:
    ASSOCIATED TRUCK LINES, INC., et al. v. UNITED STATES et al.
    No. 997.
    Decided February 24, 1970

      Conrad A. Bradshaw, Peter T. Beardsley, R. Edwin Brady, Albert B. Rosenbaum, Roland Rice, and Richard R. Sigmon for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Howard E. Shapiro, Robert W. Ginnane, and Fritz R. Kahn for the United States et al., and Edward A. McCabe for National Furniture Traffic Conference, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    KELLY et ux. v. MOUNTAIN STATES TELEPHONE & TELEGRAPH CO.
    No. 1077.
    Decided February 24, 1970

      Gilbert M. Westa for appellee.
   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:
    UNITED STATES v. WIERNICK
    No. 937.
    Decided February 24, 1970

      Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Edward Fenig for the United States.

      Raymond J. Smith for appellee.
   Per Curiam.

The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Illinois for further consideration in light of Buie v. United States, 396 U. S. 87.


text:
    SUSSMAN v. UNITED STATES
    No. 226.
    Decided February 24, 1970

      William J. Evans and L. Keith Simmer, Jr., for petitioner.

      Solicitor General Griswold for the United States.
   Per Curiam.

The petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit further consideration in light of Turner v. United States, 396 U. S. 398.


text:
    BURRUSS et al. v. WILKERSON et al.
    No. 864.
    February 24, 1970

      Carl Rachlin, Melvin L. Wulj, and Eleanor Holmes Norton for appellants.

      Robert Y. Button, Attorney General of Virginia, Richard N. Harris, Assistant Attorney General, John S. Davenport III, and Henry T. Wickham for appellees.
    Briefs of amici curiae in support of appellants were filed by Ramsey Clark, David Rubin, and John W. Douglas for the National Education Association et al., and by Joseph L. Rauh, Jr., John Silard, J. Albert Woll, Thomas E. Harris, Stephen I. Schlossberg, and David A. Binder for the American Federation of Labor — Congress of Industrial Organizations et al.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Douglas and Mr. Justice White are of the opinion that probable jurisdiction should be noted and the case set for oral argument.


author: Per Curiam. Mr. Justice Douglas,

text:
    UNITED STATES v. COTTON et al.
    No. 1022.
    Decided February 24, 1970

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.

      William M. Kunstler for appellees.
   Per Curiam.

motion of the appellees for leave to proceed in-forma pauperis is granted. The motion to dismiss is granted and the appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.

Mr. Justice Douglas,

dissenting.

The requirement for filing the record in an appeal within the time prescribed by Rule 13 is not jurisdictional. Rather it is a provision of our own Rule which we often waive in the interests of justice. We should waive it here. The appeal now dismissed was solely protective under 18 U. S. C. § 3731. The main remedy sought was mandamus in the Court of Appeals, and the record naturally went to that court, not here. The issue tendered by the appeal now dismissed is whether the District Court properly dismissed the indictment, because there could be no “fair trial” in the district at that time and that if a continuance was granted, appellees would be denied a speedy trial guaranteed by the Constitution.

That is an important question we should hear and decide.


text:
    UNITED STATES v. SANTOS et al.
    No. 861.
    February 24, 1970

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States in both cases.

      Julius Lucius Echeles Maurice J. Walsh and Carl M. Walsh for respondent in No. 873.

       Together with No. 873, United States v. Perlman, also on petition for writ of certiorari to the same court.

   Per Curiam.

The motion of respondent Ward, for leave to proceed in forma pauperis in No. 861, is granted.

The petitions for writs of certiorari are judgments are vacated and the cases are remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Buie v. United States, 396 U. S. 87.


author: Per Curiam

text:
    KOLDEN v. SELECTIVE SERVICE LOCAL BOARD NO. 4
    No. 70.
    Decided February 24, 1970

      Melvin L. Wulf, Chester Bruvold, and Lynn Costner for petitioner in No. 70. John J. Abt for petitioner in No. 73. Stanley Faulkner for petitioner in No. 164. Mr. Wulf for petitioner in No. 183. Robert Eugene Smith for petitioner in No. 331. Sheldon M. Meizlish for petitioners in No. 449.

      Solicitor General Grisioold, Assistant Attorney General Ruckelshaus, Morton Hollander, and Ralph A. Fine for respondents in Nos. 70, 164, and 183. Solicitor General Grisioold, Assistant Attorney General Ruckelshaus, and Mr. Hollander for respondents in No. 73. Solicitor General Griswold for respondents in Nos. 331 and 449.

       Together with No. 73, Chaikin v. Selective Service Local Board 66 et al.; No. 164, Faulkner v. Laird, Secretary of Defense, et al.; No. 183, Osher v. Selective Service Local Board No. 6 et al., petitions for writs of certiorari to the United States Court of Appeals for the Second Circuit; No. 331, Kraus v. Selective Service Local 25 et al., on petition for writ of certiorari to the States Court of Appeals for the Fourth Circuit; and No. 449, Anderson et al. v. Hershey, National Director, Selective Service et al., on petition for writ of certiorari to the United States of Appeals for the Sixth Circuit.

   Per Curiam

The petitions for writs of certiorari are granted, judgments are vacated and the cases are remanded to the respective United States Courts of Appeals for further consideration in light of Breen v. Selective Service Board, 396 U. S. 460.

Mr. JüíStice Harlan reverse these cases and remand them on the basis of his concurring opinion in Breen v. Selective Service Board, 396 U. S., at 468, and the Court’s opinion in Gutknecht v. United States, 396 U. S. 295.


text:
    TROUTMAN v. UNITED STATES
    No. 623.
    Decided February 24, 1970

      George C. Pontikes for petitioner in No. 623. Howard Moore, Jr., for petitioner in No. 411, Misc.

      Solicitor General Griswold, eral Wilson, and Philip R. Monahan for the United States in No. 623. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome Feit, and Edward Fenig for the United States in No. 411, Mise.

       Together with No. 411, Misc., Battiste v. United States, on petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

   Per Curiam.

The motion to proceed in forma pauperis Misc., is granted. The petitions for writs of certiorari are granted, the judgments are vacated, and the cases remanded to the respective United States Courts of Appeals for further consideration in light of Gutknecht v. United States, 396 U. S. 295.


text:
    WYMAN, COMMISSIONER OF SOCIAL SERVICES OF NEW YORK v. BOWENS et al.
    No. 866.
    Decided February 24, 1970

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, for appellant in No. 866. Leonard C. Koldirt for appellant in No. 874.

      Sydney M. Spector and Richard A. Ellison for appel-lees in both cases.

       Together with No. 874, Lascaris, Commissioner of Onondaga County Department of Social Services v. Bowens et al., on appeal from the United States District Court for the Northern District of New York.

   Per Curiam

The motion of the appellees for leave to proceed in forma pauperis is granted. The motions to affirm are granted and the judgments are affirmed. Shapiro v. Thompson, 394 U. S. 618 (1969).

Justice, Mr. Justice Black, and Mr. Justice Harlan are of the opinion that probable jurisdiction should be noted and the cases set for oral argument.