author: Mr. Justice Black

text:
    ACCARDI et al. v. PENNSYLVANIA RAILROAD CO.
    No. 280.
    Argued January 20, 1966.
    Decided February 28, 1966.

      Richard A. Posner argued the cause for petitioners, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Marshall, Assistant Attorney General Douglas, Alan S. Rosenthal and Richard S. Salsman.

      Edward F. Butler argued the cause for respondent. With him on the brief was R. L. Duff.

   Mr. Justice Black

delivered the opinion of the Court.

Petitioners, who are World War II veterans and former employees of the Pennsylvania Railroad, brought this action claiming that their former employer denied them certain seniority rights guaranteed by § 8 of the Selective Training and Service Act of 1940. Section 8(b)(B) of that Act provides that upon application by any former employee who has satisfactorily completed his military service, a private employer “shall restore” such honorably discharged serviceman to his former “position or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.” Section 8 (c) re-emphasizes § 8 (b) (B) by providing that any person so restored “shall be so restored without loss of seniority.”

The facts in this case are undisputed. In 1941 and 1942 the six petitioners began working as firemen on tugboats owned by the Pennsylvania Railroad and operated in the Port of New York. Petitioners left their jobs in 1942 and 1943 to enter the armed services and after serving three years or more each received an honorable discharge. Shortly after discharge each was restored by the railroad to his former position as fireman with the same amount of seniority he had before leaving plus credit for the time spent in the armed forces, as required by the 1940 Act. All six continued to work for the railroad until 1960. In 1959 a labor dispute broke out when the Pennsylvania and nine other railroad carriers operating tugboats claimed that firemen were not necessary on the new diesel tugs, and the owners of the tugs sought to abolish the craft and class of fireman. The unions affected called a strike. This strike was settled in 1960 when petitioners’ union and the railroads entered an agreement which abolished the position of fireman on all diesel tugs. As their part of the bargain the railroads agreed to retain in their employ firemen with 20 years or more seniority who desired to remain, but all firemen with less than 20 years seniority were discharged. To make this settlement more acceptable to the employees, those who were discharged or who did not desire to stay with the railroads were paid a severance or separation allowance based on a formula set out in the agreement. Each of the petitioners involved in this case left his job with the Pennsylvania Railroad and received a separation allowance, but each received less than he thought was due. This lawsuit was begun as an attempt to recover what each believed was owed him by the railroad.

The amount of the separation allowances was determined, according to the language of the agreement, by the length of “compensated service” with the railroad. A month of “compensated service” was defined as any month in which the employee worked one or more days and “a year of compensated service is 12 such months or major portion thereof.” In computing petitioners’ separation allowances the railroad did not include the years spent in the armed forces as years of “compensated service.” Petitioners claim this was error and contrary to § 8 of the Selective Training and Service Act of 1940. Each petitioner received $1,242.60 less than he would have if given credit for the three or more years he spent in military service and the parties have stipulated that if petitioners are entitled to have the time in the service included in determining severance pay, judgment for this amount should be rendered for each of them. The District Court rendered judgment for petitioners. The Court of Appeals reversed, holding, contrary to the District Court, that the petitioners were not entitled to credit for their time in the service in computing the allowances because the allowances did not come within the concepts of “seniority, status, and pay.” 341 F. 2d 72.

The language of the 1940 Act clearly manifests a purpose and desire on the part of Congress to provide as nearly as possible that persons called to serve their country in the armed forces should, upon returning to work in civilian life, resume their old employment without any loss because of their service to their country. Section 8 (b)(B) of the statute requires that private employers reinstate their former employees who are honorably discharged veterans “to [their former] position or to a position of like seniority, status, and pay,” and § 8 (c) provides that such a person “shall be so restored without loss of seniority.” This means that for the purpose of determining seniority the returning veteran is to be treated as though he has been continuously employed during the period spent in the armed forces. Fishgold v. Sullivan Corp., 328 U. S. 275, 284-285. The continuing purpose of Congress in this matter was again shown in the Universal Military Training and Service Act, 62 Stat. 604, as amended, 50 U. S. C. App. § 451 et seq. (1964 ed.). Section 9 (c)(2) of that Act provides:

“It is hereby declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) [of this section] should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment.”

Respondent railroad does not quarrel with this interpretation of the statute but insists that the severance pay involved here was not based on seniority and that §§ 8 (b)(B) and (c) are wholly inapplicable to this case.

The term “seniority” is nowhere defined in the Act, but it derives its content from private employment practices and agreements. This does not mean, however, that employers and unions are empowered by the use of transparent labels and definitions to deprive a veteran of substantial rights guaranteed by the Act. As we said in Fishgold v. Sullivan Corp., supra, “[N]o practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act.” At 285. The term “seniority” is not to be limited by a narrow, technical definition but must be given a meaning that is consonant with the intention of Congress as expressed in the 1940 Act. That intention was to preserve for the returning veterans the rights and benefits which would have automatically accrued to them had they remained in private employment rather than responding to the call of their country. In this case there can be no doubt that the amounts of the severance payments were based primarily on the employees’ length of service with the railroad. The railroad contends, however, that the allowances were not based on seniority, but on the actual total service rendered by the employee. This is hardly consistent with the bizarre results possible under the definition of “compensated service.” As the Government points out, it is possible under the agreement for an employee to receive credit for a whole year of “compensated service” by working a mere seven days. There would be no distinction whatever between the man who worked one day a month for seven months and the man who worked 365 days in a year. The use of the label “compensated service” cannot obscure the fact that the real nature of these payments was compensation for loss of jobs. And the cost to an employee of losing his job is not measured by how much work he did in the past— no matter how calculated — but by the rights and benefits he forfeits by giving up his job. Among employees who worked at the same jobs in the same craft and class the number and value of the rights and benefits increase in proportion to the amount of seniority, and it is only natural that those with the most seniority should receive the highest allowances since they were giving up more rights and benefits than those with less seniority. The requirements of the 1940 Act are not satisfied by giving returning veterans seniority in some general abstract sense and then denying them the perquisites and benefits that flow from it. We think it clear that the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall. We hold that the failure to credit petitioners’ “compensated service” time with the period spent in the armed services does not accord petitioners the right to be reinstated “without loss of seniority” guaranteed by §§ 8 (b)(B) and (c).

What we have said makes it unnecessary to discuss in detail the Court of Appeals’ holding that these allowances did not come within the concepts of “seniority, status, and pay” and thus were governed not by § 8 (b) (B) and the part of § 8 (c) relating to seniority but rather by the clause in § 8 (c) stating that returning veterans “shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces . . . .” The Government contends that the “other benefits” clause of § 8 (c) was added to the bill “for the express purpose of entitling employees to receive, while in service, such benefits as their employers accorded employees on leave of absence.” The legislative history referred to in the Government’s brief persuasively supports such a purpose.

This argument of the Government — that the “insurance or other benefits” clause was put in to provide these company benefits for the serviceman at the time he was in the armed forces — also finds some support in the fact that § 8 (c) provides that the serviceman would be entitled to these benefits only if they were “in effect with the employer at the time such person was inducted into such forces . . . .” Without attempting in this case to determine the exact scope of this provision of § 8 (c) it is enough to say that we consider that it was intended to add certain protections to the veteran and not to take away those which are granted him by § 8 (b) (B) and the other clauses of § 8 (c).

Since the Court of Appeals held that the provisions of § 8 (b)(B) did not apply to separation allowances it found it unnecessary to decide an alternative ground which the railroad contended should cause reversal. That contention was that since the agreement between the railroad and the union was entered into more than one year after petitioners were restored to their employment, the Act has no application to any rights created by the agreement. This argument rested on that part of § 8 (c) which provides that a veteran who is restored to employment “shall not be discharged from such position without cause within one year after such restoration.” The District Court rejected the contention as having no merit. We agree with the District Court and believe this contention to be so wholly without merit that the case need not be remanded to the Court of Appeals for its decision on the point. In Oakley v. Louisville & N. R. Co., 338 U. S. 278, 284, we said:

“[T]he expiration of the year did not terminate the veteran’s right to the seniority to which he was entitled by virtue of the Act’s treatment of him as though he had remained continuously in his civilian employment; nor did it open the door to discrimination against him, as a veteran. . . . His seniority status . . . continues beyond the first year of his reemployment . . .

What we said there governs this case. The District Court was correct in rejecting this contention of the railroad.

In the Court of Appeals the railroad also contended that the District Court had improperly computed the interest owing on the judgment awarded the plaintiffs. Because of its holding that petitioners were entitled to no recovery at all the Court of Appeals declined to decide the question of interest. The record before us does not present that question with sufficient clarity for us to pass upon it.

We affirm the judgment of the District Court holding that petitioners are entitled to recover from the railroad the stipulated damages due them because they are entitled to credit for the full amount of time served in the armed forces in calculating their severance pay. But the cause is remanded to the Court of Appeals for further consideration of the interest contention.

Reversed and remanded.

The Chief Justice took no part in the decision of this case.

       54 Stat. 890, as amended, 50 U. S. C. App. §308 (1946 ed.). Section 8 of the 1940 Act is now § 9 of the Universal Military Training and Service Act, 62 Stat. 614, as amended, 50 U. S. C. App. §459 (1964 ed.).

       The Department of Justice is representing petitioners in this case pursuant to § 8 (e) of the 1940 Act.

       Senator Sheppard in explaining an amendment which included the “other benefits” provision said:
      “That amendment would make certain that all trainees would receive the same insurance and other benefits as those who are on furlough or leave of absence in private life. It seems to me to be a good suggestion.” 86 Cong. Ree. 10914.
      And Congressman May, the Chairman of the House Committee on Military Affairs, had this colloquy with another Congressman on the same question:
      “Mr. MILLER. In reference to insurance, will that apply to group insurance? Many industrial plants, of course, carry group insurance. Under those contracts they continue their participation while a man is on vacation or on furlough. Would they continue those policies in force?
      “Mr. MAY. This would continue them in force and that is the very purpose of the legislation.” 86 Cong. Rec. 11702.


source: Caselaw Access Project

author: MR. Justice Douglas Mr. Justice Harlan,

license: Public Domain

text:
    STEVENS v. MARKS, NEW YORK SUPREME COURT JUSTICE.
    No. 210.
    Argued January 24, 1966.
    Decided February 28, 1966.

      John P. Schofield and Eugene Gressman argued the cause and filed briefs for petitioner in both cases.

      H. Richard Uviller argued the cause for respondents in both cases. With him on the brief were Frank S. Hogan and Michael R. Stack.

    Briefs of amici curiae, urging reversal, were filed by Robert J. Eliasberg and Kenneth C. Eliasberg for the Patrolmen’s Benevolent Association of the City of New York, and by Abraham Glosser for the Superior Officers Council of the City of New York Police Department.

      Together with No. 290, Stevens v. McCloskey, Sheriff, on certio-rari to the United States Court of Appeals for the Second Circuit.

   MR. Justice Douglas

delivered the opinion of the Court.

Petitioner, a member of the New York City Police Department, was summarily discharged on July 15, 1964. On June 26 he had been subpoenaed before a New York County grand jury, known as the First June 1964 Grand Jury. Before appearing in the grand jury room, an Assistant District Attorney advised him to sign a waiver of immunity, saying that otherwise he would be subject to removal from public office. He signed the waiver. Thereupon he was an unsworn witness before the grand jury:

“Q. Lieutenant . . . Stevens, as was pointed out to you earlier, this grand jury is inquiring into the crimes of conspiracy to commit the crime of bribery of a public officer and the crime of bribery of a public officer; do you understand that?
“A. I do.
“Q. Do you understand further that you have been called here as a potential defendant, not as a witness; do you understand that?
“A. I do.
“Q. Do you understand that under the Constitution of the United States you have the right to refuse to answer any questions that might tend to incriminate you; do you understand that?
“A. I do.
“Q. Do you understand further that under the New York State Constitution, and New York City Charter, a public officer is required, if he desires to continue to hold his public position, to sign a limited waiver of immunity; do you understand that?
“A. I do.
“Q. Do you understand that that means that if you sign a limited waiver of immunity which requires you to answer questions concerning the conduct of your public office, that what you say will be taken down and recorded, and that should this grand jury vote a true bill against you, that is an indictment — to indict you for a crime, the testimony you give can and will be used against you. Do you understand that?
“A. I do.
“Q. Are you prepared to sign a waiver of immunity?
“A. I am.”

That petitioner’s waiver of “all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment” covered both the privilege against self-incrimination and immunity from prosecution is evidenced by the foregoing colloquy.

Then petitioner was sworn, asked a few questions, given a questionnaire to fill out, and asked to return with it completed.

At these stages petitioner had no counsel. On July 15, he returned to a different grand jury — the Third July 1964 Grand Jury. Now he had counsel and refused to sign a waiver of immunity. He was examined, as before, concerning his knowledge that to save his job he had to waive his immunity. He acknowledged that he knew the consequences of his refusal to waive his immunity and was excused.

That same day, as a consequence of his refusal to waive immunity before the Third July 1964 Grand Jury, petitioner was discharged as a police officer.

On July 22 he was again summoned before the First June 1964 Grand Jury and put a certain question which he refused to answer on the basis of his state and federal constitutional rights. He was brought before a judge who directed him to answer the questions. He refused to answer “on the grounds stated in the State and Federal Constitution” and the judge found him in contempt. On July 28, a hearing was held, at which petitioner, through his counsel, contended that the waiver was invalid or, alternatively, had been effectively withdrawn. In either event his Fifth Amendment claim was valid under Malloy v. Hogan, 378 U. S. 1. For it was agreed that “there is no claim that this witness has been given immunity.” At the conclusion of the hearing, petitioner was fined $250 and given 30 days in the civil jail in New York City for that contempt. Petitioner promptly appealed to the Appellate Division of the New York Supreme Court. While this appeal was pending, he sought and was denied federal habeas corpus. Application of Stevens, 234 F. Supp. 25. The Appellate Division dismissed the appeal, stating its belief that Regan v. New York, 349 U. S. 58, was controlling. 22 App. Div. 2d 683, 253 N. Y. S. 2d 401. The New York Court of Appeals denied leave to appeal. 15 N. Y. 2d 483, 205 N. E. 2d 315. This is the conviction which is the basis of the petition in No. 210.

Thereafter, on September 28, petitioner was summoned again before the First June 1964 Grand Jury. Once again a question was put him and once more he refused to answer, claiming his privilege which, as we have said, was available to him under Malloy v. Hogan, supra, if the waiver was invalid or had been effectively withdrawn. He was brought before another judge who directed him to answer the question. On refusal, petitioner was held in contempt and fined $250 and sentenced to 30 days in jail. On January 11,1965, petitioner was once more summoned before the First June 1964 Grand Jury and refused again to answer a question on the ground that it was incriminating. He was taken before a judge and directed to answer. On his refusal he was fined $250 and sentenced to 30 days. While serving that jail term, petitioner once again sought a writ of habeas corpus in the United States District Court. The court denied relief, indicating that it regarded Regan v. New York, supra, binding authority. United States ex rel. Stevens v. McCloskey, 239 F. Supp. 419. The Court of Appeals for the Second Circuit affirmed. 345 F. 2d 305. It is this last conviction that is the basis of petitioner’s application for a writ of habeas corpus in No. 290.

Both cases are here on writs of certiorari. 382 U. S. 809.

Not once in any of the hearings was petitioner told that if he responded with incriminating answers, the state immunity statute might preclude a prosecution based on such answers. On the contrary, the Assistant District Attorney made it clear that the view of the prosecution was that petitioner had waived any rights he might have had under the immunity statute:

“Q. And was it further told to you that it meant that if you signed a limited waiver of immunity, which required you to answer questions concerning your conduct in public office, that what you said would be taken down and recorded and that should this grand jury vote a true bill against you, that is an indictment, the testimony you gave could be and will be used against you? Was that explained to you?
“A. I believe it was, yes, sir.
“Q. And did you tell this grand jury you understood that?
“A. That’s right.”

The Assistant District Attorney went on to say:

“Q. And do you understand further that regardless of what your lawyer may say or what anyone else may say, that it is the contention of the People that this is a valid waiver of immunity and that you do not have immunity? Do you understand that?
“A. Yes, sir.”

As we read this record, petitioner was led to believe that he could invoke his federal privilege against self-incrimination only on pain of losing his public employment; that to retain his job he was obliged to sign a waiver; and that should he sign a waiver he would have no immunity in answering incriminating questions. Throughout the various appearances petitioner made before the grand juries and in the New York courts which held him in contempt, the prosecution consistently maintained that petitioner’s waiver was valid. And there was never any suggestion that if, as petitioner contended, the waiver were invalid or effectively withdrawn, he might obtain a valid immunity from subsequent prosecution.

Here lies the difference between this case and Regan v. New York. For after that case arose, New York amended its immunity statute. Instead of conferring automatic immunity on all witnesses who testify before the grand jury, immunity is now conferred “only by strict compliance with the procedural requirements of • our immunity statutes properly enacted . . . People v. Laino, 10 N. Y. 2d 161, 173, 176 N. E. 2d 571, 579. Section 381 of the Penal Law, as amended in 1953, provides that in any bribery investigation “the court, magistrate or grand jury, or the committee may confer immunity in accordance with the provisions” of § 2447. The latter section provides that an investigating grand jury is among those “authorized to confer immunity” in a proceeding relating to bribery, provided that certain procedural steps are taken: (a) the witness must refuse to answer on the ground of self-incrimination; (b) the grand jury must then be “expressly requested by the prosecuting attorney to order such person to . . . answer” ; (c) the grand jury must then order the person to answer; (d) the witness must then comply with the order to answer; and (e) thereupon “immunity shall be conferred.” Under these laws, immunity is not automatically conferred “merely by testifying.” People v. Laino, supra, at 172, 176 N. E. 2d, at 578. “Complete immunity from prosecution may be obtained by a prospective defendant, or any witness, only by strict compliance with the procedural requirements of our immunity statutes properly enacted ... or by virtue of immunity provisions in' our State Constitution . . . .” Id., at 173, 176 N. E. 2d, at 579.

In the present case neither the prosecutor nor the grand jury had any thought of conferring immunity on petitioner. They tried to hold petitioner to his waiver. Yet if he had gone ahead and testified and it were established in a later prosecution that his waiver was invalid, it seems that he would have been bereft of any immunity under the New York law, since the requirements of “strict compliance” had not been met. Accordingly, only if the petitioner’s waiver was valid and binding was he bound to testify — at least until the affirmative steps necessary to confer immunity were taken. Whether or not petitioner could validly assert the privilege against self-incrimination depends on whether the waiver was, as he contends, invalid or effectively withdrawn. Although the trial judge which first found him in contempt ruled that the waiver was valid, the Appellate Division considered that question irrelevant in light of Regan v. New York.

Since, as we have seen, Regan is inapposite, we conclude that at the time petitioner was held to be in contempt, he had — -as a matter of federal constitutional law — effectively withdrawn the waiver. When petitioner was asked to waive his federally secured right to refuse to answer the questions, he was informed that failure to execute the waiver would result in the loss of his public employment. Although it put petitioner to “a choice between the rock and the whirlpool” (Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583, 593), New York says that, having “voluntarily” waived his constitutional rights, petitioner may not thereafter claim his privilege. At petitioner’s first appearance before a grand jury after having consulted with counsel, petitioner attempted to do just that: he announced his intention to withdraw his waiver.

Even were we to assume, without deciding, that a State may constitutionally exact, on pain of loss of employment and in the absence of counsel, the waiver of a constitutional right, we would be unable to find any justification for denying the right to withdraw it. We hold that petitioner’s effort to withdraw the waiver was effective, and that in the absence of an immunity provision clearly made applicable to him, petitioner could properly stand on his privilege and refuse to answer potentially incriminating questions.

One final point remains. Although the courts below did not consider the possibility, the briefs suggest that petitioner might, quite apart from the statutory immunity conferred by § 2447, have been given immunity by operation of law. It is said that, as the New York courts have interpreted the state constitution, a potential defendant may not be compelled to appear before a grand jury; any testimony given by him during such an appearance may not thereafter be used against him. People v. Steuding, 6 N. Y. 2d 214, 160 N. E. 2d 468; People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571. Thus it might be thought that this “automatic” immunity resulting from petitioner’s appearance before the grand jury makes this case precisely identical with Regan. We cannot agree. We need not stop to determine whether the immunity said to be conferred here — which merely prevents the use of the defendant’s testimony or its fruits in any subsequent prosecution but, apparently, does not preclude prosecution based on “independent” evidence (People v. Laino, supra; People v. Ryan, 11 App. Div. 2d 155, 204 N. Y. S. 2d 1) — constitutes that “absolute immunity against further prosecution” about which the Court spoke in Counselman v. Hitchcock, 142 U. S. 547, 586, and which the Court said was necessary if the privilege were to be constitutionally supplanted. And see Albertson v. Subversive Activities Control Board, 382 U. S. 70, 79-81. For even if the Steuding-Laino immunity were available to petitioner, he was led to believe — as we have already seen — that no immunity provisions were applicable to his case.

In this sense the case is very close to Raley v. Ohio, 360 U. S. 423, where the existence of immunity was never suggested to the witnesses, later held in contempt. In that case the State Supreme Court held that the immunity under the statute was automatically available to the witnesses and advice of the investigating agency was not necessary. But we reversed those judgments of conviction since what the State was doing was “convicting a citizen for exercising a privilege which the State clearly had told him was available to him” (id., at 438), and we went on to say:

“A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them. Lanzetta v. New Jersey, 306 U. S. 451. Inexplicably contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the force of criminal sanctions. United States v. Cardiff, 344 U. S. 174. Here there were more than commands simply vague or even contradictory. There was active misleading. Cf. Johnson v. United States, 318 U. S. 189, 197. The State Supreme Court dismissed the statements of the Commission as legally erroneous, but the fact remains that at the inquiry they were the voice of the State most presently speaking to the appellants. We cannot hold that the Due Process Clause permits convictions to be obtained under such circumstances.” Id., at 438-439.

Raley demonstrates that the State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties. A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity, as broad in scope as the privilege it replaces, is available and applicable to him. This, it seems to us, is the teaching of Raley, and accordingly the Steuding-Laino immunity — if otherwise applicable- — cannot now be invoked to validate these contempt convictions.

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Stewart joins, concurring in part and dissenting in part.

Proper disposition of these cases is rendered more difficult because of seeming confusion that has attended them all along the line. In the courts below the significance of an important New York statutory amendment was apparently overlooked. This Court granted certio-rari limited to a question which, in my view, the record does not present and which the Court does not answer. The judgments below are now reversed on different grounds never properly set forth by petitioner. With this background, a good case could be made for dismissing the writs as improvidently granted. However, I believe briefing and argument have brought to the fore errors sufficiently plain to warrant setting aside these judgments, although my analysis differs from the Court’s and I consider that a remand, and not an outright reversal, is called for.

It is common ground that petitioner cannot be jailed for refusing to incriminate himself unless either he waived his federal privilege against self-incrimination, or immunity adequate to offset that privilege was conferred upon him. Taking up the first possibility— waiver of the privilege against self-incrimination — it seems to me evident that petitioner was never asked to sign, nor did he sign, a waiver of that privilege. What the New York Constitution and the New York City Charter explicitly require be signed, and what petitioner did in terms sign, is a waiver of immunity from criminal prosecution, that is, a waiver not of the federal privilege but of the state immunity that may be granted to circumvent the privilege. That a waiver of the privilege and a waiver of immunity may both often lead a witness to incriminate himself is no reason to blur these two different legal concepts. A State in exacting a waiver of the privilege should turn square corners; New York did not ask for nor did it obtain a waiver of the privilege in this instance, so that basis for justifying the contempt convictions is out of the case. The only other basis is a claim that New York has conferred immunity upon petitioner adequate to replace the privilege.

Before turning to that issue, it should be noted that there can be no reason to consider now whether petitioner’s purported waiver of immunity was ineffective or withdrawn. If the Court is right in saying that no statutory immunity was ever conferred and that immunity under the state constitution cannot now be relied on by New York because of Raley v. Ohio, 360 U. S. 423, then it is hardly necessary to decide if this never-conferred immunity was adequately waived or the waiver effectively withdrawn. If New York did properly confer adequate immunity and so offset the privilege, then under Regan v. New York, 349 U. S. 58, it is irrelevant at this stage whether petitioner has or has not lost the benefits of that immunity through waiver since he is obliged to testify in either event. Adequacy or withdrawal of a waiver of the privilege against self-incrimination might sometimes be relevant at this stage, but no waiver of the privilege was even attempted in this instance as I have noted above. On this phase of the case, it only remains for me to demur to the Court’s statement that “we would be unable to find any justification for denying the right to withdraw” the waiver (pp. 243-244, ante). New York has the very deepest interest in uprooting and punishing misconduct by its officials; it also has a narrower interest in having an investigation, commenced on the premise of a waiver, not suddenly balked by the witness’ change of heart. It seems to me there is no federal constitutional reason why a witness who has properly given a voluntary waiver either of his privilege or his immunity should not be held to it.

Turning now to the conferral of immunity as a means of offsetting the privilege and justifying these convictions, I agree with the Court that the pertinent New York statute quite plainly is no longer an automatic immunity statute and that it was not brought into play in this instance. While further consideration on this score should not be foreclosed on the remand which for reasons later indicated I believe should take place here, People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571, seems fairly persuasive that this literal construction of the statute is accurate. Disregarding the statute then, the convictions can stand only if immunity adequate to offset the privilege flowed from the state constitution and if petitioner was not misled in his reliance on the privilege. For reasons now set forth, I believe these questions should be decided only after a remand to the state courts.

As construed in Laino, the New York Constitution gives automatic immunity only against use of compelled testimony and its fruits, 10 N. Y. 2d, at 173, 176 N. E. 2d, at 579, and the Court today leaves undecided the question whether this immunity is sufficient to supplant the privilege. While the reference to “absolute immunity against further prosecution” in Counselman v. Hitchcock, 142 U. S. 547, 586, may point toward a negative answer, I agree that the question ought not be decided until it is necessarily presented after a full briefing and argument by the parties. It is perhaps reason enough for postponement that the negative answer would perforce invalidate one or more federal statutes which protect only against later use of compelled testimony. In addition, this Court has recently extended the Fifth Amendment to the States, Malloy v. Hogan, 378 U. S. 1, and abolished the “two sovereignties” rule, Murphy v. Waterfront Comm’n, 378 U. S. 52, so that an expansive reading of the privilege could have a far more serious impact than was true in the days of Counselman. In any event, the question need not be reached if Raley v. Ohio, 360 U. S. 423, governs the instant case.

As I read Raley, it holds that the State may not lead witnesses into believing that no immunity provisions are applicable and then, when the witnesses stand on their privilege, hold them in contempt on the ground that immunity provisions supplanted the privilege. In this case the Court apparently believes that statements of the prosecutor and trial court led petitioner to think that no immunity provisions applied to him even contingently; if this is so, then I would agree the State cannot now rely on the state constitution, or the state statute for that matter, to negative petitioner’s privilege. However, there are no findings on how petitioner understood the statements made to him and they are certainly susceptible of quite a different interpretation. It may well be that the State meant, and was understood by the petitioner, to convey only that it believed petitioner’s waiver of immunity to be valid and irrevocable so that it would attempt to prosecute him on the basis of any testimony he gave. On this reading, it is quite possible that both the State and petitioner believed that adequate immunity provisions were generally applicable to the extent of supplanting the privilege and that petitioner would be shielded at a later trial if the State there proved to be wrong in its views on waiver. If so, and assuming the state constitution does in law provide adequate immunity, then petitioner was obliged to testify under Regan and was not relevantly misled. The present record was not formulated with regard to the Raley problem, that issue was not briefed in its present form, and it seems to me wrong to decide the point without a remand.

I would vacate both judgments and remand the case to the state courts so the State may there try to establish that apart from a possible waiver adequate immunity was conferred, and so that petitioner may try to show that he was misled on this score.

       Article I, §6, of the New York Constitution provides in part: “No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal ease to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office or of any public office held by him within five years prior to such grand jury call to testify, or the performance of his official duties in any such present or prior offices, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years from the date of such refusal to sign a waiver of immunity against subsequent prosecution, or to answer any relevant question concerning such matters before such grand jury, and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.”

       The waiver read in part:
      “. . .all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment for or on account of, regarding or relating to any matter, transaction or thing, concerning the conduct of my office or the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the . . . official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence, documentary or otherwise, before the 1st, 1964 Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury.”

       This was the view of the Appellate Division which, when affirming petitioner’s first contempt conviction, said: “[I]f the waiver of immunity is still valid, petitioner no longer has any privilege to refuse to testify.” 22 App. Div. 2d 683, 684, 253 N. Y. S. 2d 401, 402.

        Malloy v. Hogan, 378 U. S. 1, holding that the Fourteenth Amendment guaranteed a witness the protection of the Fifth Amendment’s privilege against self-incrimination, was decided June 15,1964.

       Petitioner’s counsel made the following statement: “May we also have the record clarified, Your Honor. It is my understanding, based on what was said here the last time in court before Your Honor, that there is no claim that this witness has been given immunity. The claim is that he has signed a valid waiver and that he refused to testify under it, and that is why Your Honor has found him guilty of criminal contempt, is that right?” The court replied, “That covers the situation.”

        Began v. New York arose under an earlier version of the New York immunity law, which conferred automatic immunity from prosecution on anyone who testified before the grand jury. Regan had, like petitioner, executed a waiver of immunity and later sought to repudiate it. Unclear of his rights, Regan refused to testify though ordered to do so. This Court affirmed his contempt conviction, refusing to consider questions raised as to the validity of his waiver and the efficacy of his efforts to withdraw it. The Court’s theory was that regardless of the validity of the waiver, Regan was bound to answer the questions put to him: If the waiver was valid and binding, then of course he must answer since he had waived the right to refuse to do so. If the waiver was invalid, then petitioner would have immunity from prosecution, and thus could not rely on the privilege against self-incrimination.

       This sentence was served.

       See Regan v. New York, 349 U. S. 58, 59, note 2 and accompanying text, for a discussion of the earlier version of that section.

       That immunity was never properly conferred on petitioner was, as we read this record, recognized by petitioner’s counsel and by the judge which first found him in contempt of court. See note 5, supra, and accompanying text.

       As for the suggestion that withdrawal of the waiver in mid-hearing poses an administrative inconvenience, we only note that there was no such inconvenience here. Petitioner had answered only a few perfunctory questions at his first appearance before the grand jury. He asserted his desire to withdraw the waiver immediately upon returning before the grand jury.

       The suggestion that we should remand the case to the New York courts for a finding of whether or not petitioner was misled is, we think, wide of the mark. A State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late.

       Certiorari was limited to the question whether a law is unconstitutional which requires the discharge and bars the rehiring of any public officer who refuses to sign a waiver of immunity and claims his privilege against self-incrimination. 382 U. S. 809.

       N. Y. Const., Art. I, §6, requires “a waiver of immunity against subsequent criminal prosecution” and the New York City Charter, § 1123, requires that one “waive immunity from prosecution.” The document signed by petitioner stated that he waived “all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment N. Y. Penal Law § 2446 states that where any law provides that a person shall not be prosecuted because of his testimony or that testimony he gives shall not be used against him, that person may file a statement “expressly waiving such immunity or privilege.”

       In Laino the New York Court of Appeals stated that immunity under the state statutes could be acquired only “by strict compliance with the procedural requirements ...” 10 N. Y. 2d, at 173, 176 N. E. 2d, at 679. N. Y. Penal Law § 2447, governing the procedure for conferring statutory immunity, provides that in the case of a grand jury, the grand jury must be “expressly-requested” by the prosecutor to order the witness to answer and the grand jury must give that order; there appears to have been neither request nor order in this case. That courts might “estop” the prosecutor from later prosecuting in these circumstances should not be taken as the deliberate, assured grant of immunity the Constitution requires.

       See, e. g., 49 U. S. C. §9 (1964 ed.) See generally Murphy v. Waterfront Comm’n, 378 U. S. 52, 104, n. 6 (concurring opinion of MR. Justice White).

       A number of States appear to provide immunity no greater than that implied by the New York Constitution. See, e. g., Ariz. Rev. Stat. Ann. § 13-384; Conn. Gen. Stat. § 12-2.

       It should be noted that nothing in the record indicates that petitioner raised the Raley argument in the lower courts, and that case was not even cited in his petitions for certiorari.

       In a footnote, the Court appears to announce as a new and distinct principle that “[a] State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his” before overriding the privilege (p. 246, n. 11, ante). Reading the words “valid immunity” literally, the statement is simply inconsistent with Regan. If instead the Court means that immunity — albeit contingent on the invalidity of a waiver — -must be “affirmatively demonstrated,” regardless of whether the State misled the witness and regardless of whether the witness well knew he had contingent immunity, then I disagree with that proposition which is not supported by Raley.

       The case to be so remanded is No. 210; No. 290, which originated in the Federal District Court as a habeas corpus suit should be returned there to await the outcome of any further state proceedings.


author: Per Curiam. Mr. Justice Harlan, Mr. Justice Douglas,

text:
    HICKS v. DISTRICT OF COLUMBIA.
    No. 51.
    Argued October 21, 1965.
    Decided February 28, 1966.
    Reported below: See 197 A. 2d 154.

      Charles W. Wolfram argued the cause for petitioner, pro hac vice, by special leave of Court. With him on the briefs were Lawrence Speiser, Melvin L. Wulf and Monroe Freedman.

      Hubert B. Pair argued the cause for respondent. With him on the brief were Chester H. Gray, Milton D. Kor-man and Ted D. Kuemmerling.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Harlan,

concurring.

Among the several reasons which support the action of the Court in dismissing the writ in this case as improvidently granted, I rest my decision to join in this disposition on the lack of a record, without which I do not believe the constitutional issues tendered can properly be decided.

Mr. Justice Douglas,

dissenting.

I.

We granted certiorari in this case to consider what I think is an important question: the constitutionality of petitioner’s conviction of “vagrancy.” Relying on our determination that this case presented substantial questions of constitutional law, the parties comprehensively-briefed those questions and we heard argument. But now the Court decides that the writ of certiorari must be dismissed as improvidently granted.

With all respect, I must dissent from this disposition of the case.

In the first place, the alleged “untimeliness” of the petition was called to the attention of the Court by respondent in its brief opposing the grant of certiorari. We were thus fully aware of this point when we granted the writ. Moreover, Rule 22 (2) is not jurisdictional or mandatory and may be waived by this Court under proper circumstances, at least where no jurisdictional statute is involved. Heflin v. United States, 358 U. S. 415, 418, n. 7. Having brought the case here, required the parties to brief the issues, and heard argument, it is most inappropriate to decline to exercise our discretion and waive the time bar of Rule 22 (2).

Nor, in my opinion, is the objection to the adequacy of the record well founded. Petitioner argued in this Court that the statute defining “vagrant” is unconstitutionally vague. The challenged statute is § 22-3302 (3) of the District of Columbia Code, and it provides that a “vagrant” is:

“Any person leading an immoral or profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation or source.”

We do not need a detailed account of the particular facts of this case in order to pass on the claim that this statute lacks the specificity that due process of law requires. In Lanzetta v. New Jersey, 306 U. S. 451, 453, we said:

“If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. . . . It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. . . . No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”

The Court held the challenged statute bad in that case without considering the defendant’s conduct which formed the basis of the prosecution. If a penal statute is so imprecise as to deny fair warning to those who might transgress it, any conduct of the defendant prosecuted under it which might have been proscribed by a more precisely worded statute is irrelevant.

The Lanzetta case is close kin to the present one because the crime there charged was one of being a “gangster” which was defined as any person “not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime in this or in any other State.” 306 U. S., at 452. The Court, without considering the facts of record, looked only at the statute and the charge of the indictment and ruled that the Act was unconstitutional for vagueness.

If one takes my view and approaches this case as an attempt by the Government to regulate the status of being a vagrant, the absence of a detailed record is — as with the vagueness point — no impediment to proper analysis.

II.

Our vagrancy laws stem from the series of the Statutes of Labourers (23 Edw. 3; 25 Edw. 3, Stat. I) first passed in 1349 and amended and modified from time to time over the next 200 years. They reflected “the criminal aspect of the poor laws.” They “confined the labouring population to stated places of abode, and required them to work at specified rates of wages. Wandering or vagrancy thus became a crime.” History tells the story from the point of view of the Establishment: that wandering bands of people, who had left their masters, committed all sorts of crimes and hence must be punished for wandering. That philosophy obtains in this country, because the English statutes provided the seed of our vagrancy-laws. Article IV, ¶ 1, of the Articles of Confederation assured the free inhabitants of each State, save “paupers, vagabonds, and fugitives from Justice,” the privileges and immunities of citizenship of the several States, and the right of free ingress and egress to and from each State.

But there was incongruity in superimposing the English anti-migratory policy upon the law of America:

“Vast movements of people motivated by urgent economic need settled this country from Europe, pushed settlement westward and fed growing cities from rural population reservoirs. England’s Enclosure Acts, by withdrawing land from agricultural use, swelled the army of English vagrants; America invited migration with the lure of free land. The same elements of the population who on one side of the Atlantic were rogues and vagabonds, on the other were frontiersmen.”

America’s vagrancy laws were expanded to cover a host of acts other than wandering — begging, drunkenness, disorderly conduct, loitering, prostitution, lewdness, narcotics peddling, and so on. They were justified here, as in early England, as devices of control. This Court, writing in 1837, said:

“We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be labouring under an'infectious disease.” City of New York v. Miln, 11 Pet. 102, 142-143.

The wanderer, the pauper, the unemployed — all were deemed to be potential criminals. As stated by the Court of Appeals for the District of Columbia Circuit in District of Columbia v. Hunt, 82 U. S. App. D. C. 159, 161, 163 F. 2d 833, 835, “A vagrant is a probable criminal; and the purpose of the statute is to prevent crimes which may likely flow from his mode of life.” The vagrant, therefore, is not necessarily one who has committed any crime but one who reflects “a present condition or status.” Handler v. Denver, 102 Colo. 53, 58, 77 P. 2d 132, 135. Cf. Ex parte Branch, 234 Mo. 466, 470-471, 137 S. W. 886, 887. That condition is not a failure to make a productive contribution to society, for the idle rich are not reached. The idle pauper is the target. Insofar as that status reflects pauperism it suggests the need for welfare; and insofar as it reflects idleness it suggests the need for the intervention of employment agencies. I do not see how under our constitutional system either of those elements can be made a crime. To do so serves the cause either of arrests and convictions on suspicion or of arrests and convictions of unpopular minorities (Edelman v. California, 344 U. S. 357, 366, dissenting opinion) — procedures very convenient to the police but foreign to our system.

I do not see how economic or social status can be made a crime any more than being a drug addict can be. Robinson v. California, 370 U. S. 660, 668 (concurring opinion). No overt act of criminal dimensions is charged here. Petitioner was either arrested on suspicion or for innocent acts which were used as a cloak for an arrest on grounds the police could not establish. In either event the arrest and conviction were, in my view, unconstitutional.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING.

Guitarist Conviction Stirs Protest

By STERLING Seagrave

The Washington Post

June 14, 1963

Eddie Hicks, the 25-year-old Dupont Circle troubadour convicted of vagrancy because he spent his afternoons playing a guitar in Dupont Circle, was given a suspended sentence yesterday.

The American Civil Liberties Union announced it would appeal the Hicks case and attack the constitutionality of his conviction under the vagrancy statute. The ACLU said the statute was unclear and was being used by police to persecute Hicks and others who were only enjoying themselves innocently in a public park.

The young troubadour was arrested by a Park Policeman Wednesday after being warned not to play his guitar in Dupont Circle. As a result, residents of the area and “regulars” in the park are protesting what they consider an invasion of their right to assemble in peaceful recreation.

Top officials of the Interior Department spoke out in favor of guitar playing and folk singing as a “wholesome activity that should not be disturbed but encouraged” in the Nation’s public parks.

At the trial Wednesday, Park Policeman James E. Thomas told Judge Thomas C. Scalley that Hicks was unemployed. Hicks testified that he was only visiting Washington for a few weeks and that he had shown Thomas a $20 bill when the policeman had threatened to arrest him for vagrancy if he ever came back to Dupont Circle.

When he was arrested Wednesday, Hicks was sitting on a bench with a friend, his guitar in a case and money in his pocket, testimony showed.

At the sentencing yesterday, Judge Scalley told the minstrel that he was suspending sentence and that Hicks was free on “personal bond.” The conviction went down on his record, however.

Reaction came swiftly. At Dupont Circle, angry sympathizers plotted a demonstration.

“If they are going to stick that boy with a vagrancy conviction just for playing a guitar, they’re going to have to arrest several hundred of us. We’ve been playing guitars there for years,” said one.

The regular habitues of Dupont Circle on any given day are neighborhood residents, retired folk, families who pause on a stroll in the summer sun, children who play porpoise in the fountain, couples who doze on the grass, and students.

The students were priced out of Georgetown, moved to Foggy Bottom, then relocated to the Dupont Circle area when urban renewal closed Foggy Bottom to them.

They live for blocks around the Circle in low-rent rooming houses, studios and shared apartments. Most are poor, some are out of school temporarily to work evenings and part-time wherever they can find jobs.

Generally, they are clean-cut, neatly dressed in sports clothes, articulate, quiet and yet quick to take offense when they think civil authorities are breathing too closely on their necks.

When they can, they play chess in the Circle, around the fountain, argue age-old questions, or gather around the talented and untalented guitarists among them for spontaneous folk music sessions that quickly draw the interest and amusement of passers-by.

On recent Sundays, spontaneous “hootenannys” have started out of nothing, drawing small crowds which sat listening on the grass.

On May 19, Park Policemen routed the last hootenanny, sending everyone scurrying for cover. Attorney Arthur Neuman was passing by and snapped pictures.

“It was a peaceful, lawful assembly,” Neuman said yesterday. “There was no disturbance and it was commendable and refreshing to see young people engaged in good social behavior rather than roaming the streets committing crimes.”

Capt. Raymond S. Pyles, chief of the Third Precinct which includes the Circle, reported, “I cannot recall a single complaint about them.”

Walter Pozen, assistant to Secretary of the Interior Stewart Udall, said, “Not only do I think they shouldn’t be singled out — they should be encouraged. The parks are there for recreation and general use.”

“There’s no rule I know against playing in a park,” said Conrad Wirth, director of the National Park Service. “I like music myself.”

Charles Wolfram, the ACLU attorney who will champion Hicks when the case is appealed, said yesterday that his attack would be against three sections of the vagrancy statute.

The statute describes a vagrant as “immoral, profligate and dissolute (with) no lawful means of employment or support, without any settled home.”

“First,” Wolfram said, “the word 'dissolute’ is so vague you can’t tell what it forbids. Second, the statute discriminates against the poor and the unemployed. Third, it is used by police as carte blanche to harass anyone they personally dislike.”

Looking back at the whole episode, attorney Neuman said, “If a man chooses to spend his life playing a guitar, who has the right to insist that he engage in some sort of servitude?”

       The above assumes that Rule 22 (2) applies to this case. Our jurisdiction to review this decision is not based on 28 TJ. S. C. § 1254 (1) (1964 ed.) which we previously held did not permit review by writ of certiorari of cases where the Court of Appeals for the District of Columbia Circuit refused to allow an appeal. Ferguson v. District of Columbia, 270 U. S. 633. Our jurisdiction is founded on the power to issue a common-law writ of certiorari. House v. Mayo, 324 U. S. 42; 28 U. S. C. §1651 (a) (1964 ed.). Arguably, Rule 22 (2) has no application in cases involving extraordinary writs. Rule 31 which governs the procedure on applications for extraordinary writs imposes no time limit.

       III Stephen, History of the Criminal Law of England 203 ei seq. (1883).

         Id., at 266; see II Holdsworth, History of English Law 459-462 (1927). The purpose of these statutes was to offset the loss of workers and to check the rise in wages which resulted from the Black Death. Those able to work, and lacking other means of support were compelled to work, and at regulated wages. Workers were confined to their existing place of residence. Stephen suggests that the “object of this legislation was to provide a kind of substitute for the system of villainage and serfdom, which was then breaking down ...” Stephen, op. cit. supra, at 204. See also Kenny’s Outlines of Criminal Law 411 (Turner ed. 1958). Early laws forbidding begging distinguished between beggars “able to serve or labor” and “beggars impotent to serve.” See, e. g., 12 Rich. 2, c. 7. Economic conditions changed; when work became scarce, laborers were forced to look elsewhere. The focus of the laws dealing with laborers shifted; the ban on migration became a preventive to keep a parish from being saddled with the needs of foreign paupers and idlers. “The vagrant came to be regarded rather as a probable criminal than as a runaway slave. He must be made to work or else be treated as a criminal.” Stephen, op. cit. supra, at 274.

       Stephen, op. cit. supra, at 267.

       Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 617 (1956). And see Scott, Criminal Law in Colonial Virginia 272-275 (1930).

         Foote, op. cit. supra, n. 5, at 625 et seq.

         The volume of vagrancy cases in the courts each year is large. The most recent FBI Crime Reports show that in 1964, in 3,012 cities with populations exceeding 2,500, 125,763 vagrancy arrests were made (out of a total of 4,155,924 arrests for that same period). Uniform Crime Reports — 1964, p. 120.

       For the prevalency of arrests “on suspicion” or “for investigation” in the District of Columbia, see Report and Recommendations of the Commissioners’ Committee On Police Arrests for Investigation (the Horsky Report), July 1962.

       He was either arrested for playing a guitar in a park (see Appendix) or for sleeping in a men’s room (cf. Jean Valjean in Victor Hugo’s Les Miserables), for the information reads as follows:
      “Eddie J. Hicks late of the District of Columbia aforesaid, on or about the 19th day of May in the year A. D. nineteen hundred and sixty three, in the District of Columbia aforesaid, and on Dupont Circle north, west, was then and there, and has been since that day and still is a vagrant, to wit; a person leading an immoral and profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation and source and who wanders abroad and lodges in a public park and public comfort stations, living upon the charity of others, and who lives idly and without any settled home, and otherwise leading a profligate life.”


author: Per Curiam.

text:
    HOPSON et al. v. TEXACO, INC.
    No. 818.
    Decided February 28, 1966.

      Abraham E. Freedman for petitioners.

      Harry E. McCoy for respondent.
   Per Curiam.

These actions were brought under the Jones Act, as amended (41 Stat. 1007, 46 U. S. C. § 688 (1964 ed.)), to recover damages for injuries sustained by one seaman, and for the death of another, as a result of an automobile accident on the island of Trinidad. Judgment on the jury’s verdict was entered in United States District Court in favor of the plaintiffs, but the Court of Appeals reversed. 351 F. 2d 415. We grant the petition for a writ of certiorari and reverse.

The facts are not in dispute. The two seamen were members of the crew of respondent’s tanker which was docked at respondent’s refinery at Pointe-á-Pierre on the island of Trinidad. Both fell ill and it was determined that they would be unable to continue the voyage. In order to discharge an incapacitated seaman in a foreign port, federal law requires that he be taken to a United States Consul where arrangements for his return to the United States can be made. The United States Consul’s Office was located in Port of Spain, some 38 miles distant. Although respondent had a fleet of motor vehicles used for transportation in the immediate vicinity of the refinery and docking area, its practice was to utilize either of two local taxi companies for journeys to more distant points. The ship’s Master procured one of these cabs which set out for Port of Spain with the two ill seamen. En route, the taxi collided with a truck, killing the Master and one of the seamen; the other seaman was seriously injured. The jury found that the taxi driver had been negligent— a finding challenged neither in the Court of Appeals nor here. The Court of Appeals reversed the District Court’s determination that respondent is liable to petitioners for this negligence of the taxi operator.

The Jones Act incorporates the standards of the Federal Employers’ Liability Act, as amended, which renders an employer liable for the injuries negligently inflicted on its employees by its “officers, agents, or employees.” We noted in Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, that the latter Act was “an avowed departure from the rules of the common law” {id., at 329), which, recognizing “[t]he cost of human injury, an inescapable expense of railroading,” undertook to “adjust that expense equitably between the worker and the carrier.” Ibid. In order to give “an accommodating scope ... to the word ‘agents’” (id., at 330-331), we concluded that “when [an] . . . employee’s injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are ‘agents’ of the employer within the meaning of § 1 of FELA.” {Id., at 331-332).

We think those principles apply with equal force here. These seamen were in the service of the ship and the ill-fated journey to Port of Spain was a vital part of the ship’s total operations. The ship could not sail with these two men, nor could it lawfully discharge them without taking them to the United States Consul. Indeed, to have abandoned them would have breached the statutory duty to arrange for their return to the United States. Getting these two ill seamen to the United States Consul’s office was, therefore, the duty of respondent. And it was respondent — not the seamen — which selected, as it had done many times before, the taxi service. Respondent — the law says — should bear the responsibility for the negligence of the driver which it chose. This is so because, as we said in Sinkler, “justice demands that one who gives his labor to the furtherance of the enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered.” 356 U. S., at 330.

Reversed.

Mr. Justice Harlan, believing that Sinkler v. Missouri Pac. R. Co., 356 U. S. 326, should not be extended, dissents.

       Rev. Stat. §§ 4578, 4580, 4581, as amended, 46 U. S. C. §§ 679, 682, 683 (1964 ed.).

       46 U. S. C. §688 (1964 ed.).

       53 Stat. 1404, 45 U. S. C. § 51 et seq. (1964 ed.).

       45 U. S. C. §51 (1964 ed.).


text:
    LEVINE v. UNITED STATES.
    No. 112.
    Decided February 28, 1966.

      Nicholas J. Capitano for petitioner in No. 112.

      Thomas F. Call for petitioner in No. 125.

      Joseph W. Wyatt for petitioner in No. 230.

      Sidney M. Dubbin and E. David Rosen for petitioners in No. 234.

      Solicitor General Marshall, former Solicitor General Cox, Assistant Attorney General Vinson, Beatrice Rosenberg and Daniel H. Benson for the United States.

       Together with No. 125, Roberts v. United States, No. 230, Grene v. United States, and No. 234, Gradsky et al. v. United States, also on petitions for writs of certiorari to the same court.

   Per Curiam.

Ten persons were found guilty by a jury on each count of a 10-count indictment. The count predicated on 18 U. S. C. § 371 (1964 ed.) charged all defendants with conspiring to violate § 17 of the Securities Act of 1933, 15 U. S. C. § 77q (a) (1964 ed.), and the Mail Fraud Act, 18 U. S. C. § 1341 (1964 ed.); each of the remaining nine counts charged all defendants with substantive offenses of violating these latter statutes. The Court of Appeals affirmed all the conspiracy convictions; and, with some exception for petitioner Roberts and two other defendants, that court also affirmed the convictions for the substantive offenses. 342 F. 2d 147. Four defendants petitioned for writs of certiorari, and a fifth defendant subsequently moved to be added as a co-petitioner in one of the petitions already filed (No. 234). We grant that motion; and we grant the petitions for writs of certiorari limited to the issue whether petitioners were improperly convicted of substantive offenses committed by members of the conspiracy before petitioners had joined the conspiracy or after they had withdrawn from it. In all other respects the petitions are denied.

In response to specific questions addressed by this Court, the Solicitor General has made a two-pronged concession: First, he concedes that an individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy; and second, he concedes that in this case some of the convictions for the substantive offenses must be reversed because they are inconsistent with this principle. On the basis of this concession, and upon consideration of the entire record, we vacate the judgment of the Court of Appeals insofar as it affirms petitioners’ convictions for the substantive offenses. We remand the case to that court with instructions to reverse the convictions the Solicitor General concedes must be reversed, and to determine, in light of the concession, the evidence, the instructions to the jury, and the applicable principles of law, whether in addition to the relief conceded by the Solicitor General petitioners are entitled to further relief regarding the convictions for the substantive offenses.

Vacated and remanded.

       Specifically, the Solicitor General concedes that petitioner Levine’s convictions on Counts 1, 3, 4, 5, 6, 7, and 8, and petitioner Grene’s convictions on Counts 1 and 7 must be reversed.


text:
    ARIZONA v. CALIFORNIA et al.
    No. 8,
    Original.
    Decided June 3, 1963.
    Decree entered March 9, 1964.
    Amended Decree entered February 28, 1966.

      Mark Wilmer for plaintiff.

      Thomas C. Lynch, Attorney General of California, Northcutt Ely, Special Assistant Attorney General, Burton J. Gindler and David B. Stanton, Deputy Attorneys General, C. Emerson Duncan II, Jerome C. Muys, Roy H. Mann, Earl Redwine, Harry W. Horton, R. L. Knox, James H. Carter, Charles C. Cooper, Jr., John H. Lauten, H. Kenneth Hutchinson, Roger Arnebergh, Gilmore Tillman, Edward T. Butler, Harvey Dickerson, Attorney General of Nevada, and Robert E. Jones, Deputy Attorney General, for defendants.

      Solicitor General Marshall for the United States, intervenor.
   Ordered.

The joint motion to amend Article VI of the Decree in this case entered on March 9, 1964, is hereby granted and Article VI of said decree is hereby amended to read as follows:

VI. Within three years from the date of this decree [March 9, 1964], the States of Arizona, California, and Nevada shall furnish to this Court and to the Secretary of the Interior a list of the present perfected rights, with their claimed priority dates, in waters of the mainstream within each State, respectively, in terms of consumptive use, except those relating to federal establishments. Any named party to this proceeding may present its claim of present perfected rights or its opposition to the claims of others. The Secretary of the Interior shall supply similar information, within a similar period of time, with respect to the claims of the United States to present perfected rights within each State. If the parties and the Secretary of the Interior are unable at that time to agree on the present perfected rights to the use of mainstream water in each State, and their priority dates, any party may apply to the Court for the determination of such rights by the Court.

The Chief Justice and Mr. Justice Fortas took no part in the consideration or decision of this motion.


text:
    HARRISON et al. v. SCHAEFER et al.
    No. 854.
    Decided February 28, 1966.

      Thomas 0. Miller for appellants.

      A. G. McClintock for appellees.
   Per Curiam.

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

Mr. Justice Fortas took no part in the consideration or decision of this case.


text:
    CALLENDER et al. v. FLORIDA.
    No. 58,
    October Term, 1964.
    Order and judgment of April 26, 1965, vacated.
    Decided February 28, 1966.
   Per Curiam.

The mandate of this Court in this case issued on the 21st day of May, 1965, is hereby recalled and the judgment heretofore entered on the 26th day of April, 1965, is hereby vacated. The order of the Court dated the 26th day of April, 1965, granting the writ of certiorari to the Supreme Court of Florida is vacated.

Treating the papers submitted as a petition for a writ of certiorari to the District Court of Appeal of Florida, First District, the petition for a writ of certiorari is granted and the judgments are reversed. Boynton v. Virginia, 364 U. S. 454; Abernathy v. Alabama, 380 U. S. 447.

Mr. Justice Fortas took no part in the consideration or decision of this case.


text:
    CRAWFORD COUNTY BAR ASSOCIATION v. FAUBUS, GOVERNOR OF ARKANSAS, et al.
    No. 941.
    Decided February 28, 1966.

      Fines F. Batchelor, Jr., for appellant in No. 941. W. B. Brady for appellant in No. 942.

      Bruce Bennett, Attorney General of Arkansas, F-arrell E. Faubus, Assistant Attorney General, and Jack L. Lessenberry for appellees in both cases.

       Together with No. 942, Alexander v. Faubus, Governor of Arkansas, et al., also on appeal from the same court.

   Per Curiam.

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

Mr. Justice Fortas took no part in the consideration or decision of these cases.