author: Mr. Justice Fortas Mr. Justice Douglas,

text:
    STATE FARM FIRE & CASUALTY CO. et al. v. TASHIRE et al.
    No. 391.
    Argued February 14-15, 1967.
    Decided April 10, 1967.

      Otto R. Skopil, Jr., and John Gordon Gearin argued the cause and filed briefs for petitioners.

      Nick Chaivoe and James B. Griswold argued the cause and filed a brief for respondents.

      Mark C. McClanahan filed a brief for Anderson & Geary et al., as amici curiae.

   Mr. Justice Fortas

delivered the opinion of the Court.

Early one September morning in 1964, a Greyhound bus proceeding northward through Shasta County, California, collided with a southbound pickup truck. Two of the passengers aboard the bus were killed. Thirty-three others were injured,, as were the bus driver, the driver of the truck and its lone passenger. One of the dead and 10 of the injured passengers were Canadians; the rest of the individuals involved were citizens of five American. States. The ensuing litigation led to the present case, which raises important questions concerning administration of the interpleader remedy in the federal courts.

The litigation began when four of. the injured passengers filed suit in California state courts, seeking, damages in excess of $1,000,000. Named as defendants were Greyhound Lines, Inc., a California corporation; Theron Nauta, the bus driver; Ellis Clark, who drove the truck; and Kenneth Glasgow, the passenger in the truck who was apparently its owner as well. Each of the individual defendants was a citizen and resident of Oregon. Before these cases could come to trial and before other suits were filed in California or elsewhere, petitioner State Farm Fire & Casualty Company, an Illinois corporation, brought this action in the nature of interpleader in the United States District Court for the District of Oregon.

In its complaint State Farm asserted that at the time of the Shasta County collision it had in force an insurance policy with respect to Ellis Clark, driver of the truck, providing for bodily injury liability' up to $10,000 per person and $20,000 per occurrence and for legal representation of Clark in actions covered by the policy. It asserted that actions already filed in California and others which it anticipated would be filed far exceeded in aggregate damages sought the amount of its maximum liability under the policy. Accordingly, it paid into court the sum of $20,000 and asked the court (1) to require all. claimants to establish their claims against Clark and his insurer in this single proceeding and in no other, and (2) to discharge State Farm from all further obligations under its policy — including its duty to .defend Clark in lawsuits arising from the accident. Alternatively, State Farm expressed its conviction that the policy issued to Clark excluded from coverage accidents resulting from his operation of a truck which belonged to another and was being used in the business of another. The complaint, therefore, requested that the court decree that the insurer owed no duty to Clark and was not liable on the policy, and it asked the court to refund the $20,000 deposit.

Joined as defendants were Clark, Glasgow, Nauta, Greyhound Lines, and each of the prospective claimants. Jurisdiction was predicated upon 28 U. S. C. § 1335, the federal interpleader statute, and upon general diversity of citizenship, there being diversity between two or more of the claimants to the fund and between State Farm and all of the named defendants.

An order issued, requiring the defendants to show cause why they should not be restrained from filing or prosecuting “any proceeding in any state or United States Court affecting the property or obligation involved in this interpleader action, and specifically against the plaintiff and the defendant-Ellis D. Clark.” Personal service was effected on each of the American .defendants, and registered mail was employed to reach the 11 Canadian claimants. Defendants Nauta, Greyhound, and several of the injured passengers responded, contending that the policy did cover this accident and advancing various arguments for the position that interpleader was either impermissible or inappropriate in the present circumstances. Greyhound; however, soon switched sides and moved that the court broaden any injunction to include Nauta and Greyhound among those, who could not be sued except within the confines of the interpleader proceeding.

When a temporary injunction along the lines sought • by State Farm was issued by the United States District Court for the District of Oregon, the present respondents moved to dismiss the action and, in the alternative, for a change of venue — to the Northern District of California, in which district' the collision had occurred. After a hearing, the court declined to dissolve the temporary injunction, but continued the motion for a change of venue. The injunction was later broadened to include the protection sought ,by Greyhound, but modified to permit the filing — although not the prosecution — of suits. The injunction, therefore, provided that all suits against Clark, State Farm, Greyhound, and Nauta be prosecuted in the interpleader proceeding.

On interlocutory appeal, the Court of Appeals for the Ninth Circuit reversed. 363 F. 2d 7. The court found it unnecessary to réach respondents’ contentions relating to service of process and the scope of the injunction, for it concluded that interpleader was not available in the circumstances of this case. It held that in States like Oregon which do not permit “direct action” suits against insurance companies until judgments are obtained against the insured, the insurance companies may pot invoke federal interpleader until the claims against the insured, the alleged tortfeasor, have been reduced to judgment. Until that is done, said the court, claimants with unliquidated tort claims are not “claimants” within the meaning of § 1335, nor are they “persons having claims against the plaintiff” within the meaning of Rule 22 of the Federal Rules of Civil Procedure. Id., at 10. In accord with that view, it directed dissolution of the temporary injunction and dismissal of the action.. Because the Court of Appeals’ decision on this point conflicts with those of other federal courts, and concerns a matter of significance to the administration of federal interpleader, we granted certiorari. 385 U. S. 811 (1966). Although we reverse the decision of the Court of Appeals upon the jurisdictional question, we direct a substantial modification of the District Court’s injunction for reasons which will appear.

I.

Before considering the issues presented by the petition for certiorari, we find it necessary to dispose of a question neither raised by the parties nor passed upon by the courts below. Since the matter concerns our jurisdiction, we raise it on our own motion. Treinies v. Sunshine Mining Co., 308 U. S. 66, 70 (1939). The interpleader statute, 28 U. S. C. § 1335, applies where there are “Two or more adverse claimants, of diverse citizenship . . . This provision has been uniformly construed to require only “minimal diversity,” that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens. The language of the statute, the legislative purpose broadly to remedy the problems posed by multiple claimants to a single fund, and the consistent judicial interpretation tacitly accepted by Congress, persuade us that the statute requires no more. There remains, however, the question whether such a statutory construction is consistent with Article III of our Constitution, which extends the federal judicial power to “Controversies . . . between Citizens of different States . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” In Strawbridge v. Curtiss, 3 Cranch 267 (1806), this Court held that the diversity of citizenship statute required “complete diversity”: where co-citizens appeared on both sides of a dispute, jurisdiction was lost. But Chief Justice Marshall there purported to construe only “The words of the act .of congress,” not the Constitution itself. And in a variety of contexts this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not có-citizens. Acqordingly, we conclude that the present case is properly in the federal courts.

II.

We do not agree with the Court of Appeals that, in the absence of a state law or contractual provision for "direct action” suits against the insurance company, the company must wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to invoke the benefits of federal- interpleader. That may have been a tenable position under the 1926 and 1936 interpleader statutes. These statutes did not carry forward the language in the 1917 Act authorizing, interpleader where advérse claimants “may claim” benefits as well as where they “are claiming” them. In-1948, however, .in the revision of the Judicial Code, the “may claim” language was restored. Until the decision below, every court confronted by the question has concluded that the 1948 revision removed whatever requirement there might previously have been that the insurance company wait until at least two claimants reduced their claims to judgments. The commentators are in accord.

Considerations of judicial administration demonstrate the soundness of this view which, in any event, seems compelled by the language of the present statute, which is remedial and to be liberally construed.- Were an insurance company required to await reduction - of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment pose for the insurer, and the unfairness which may result to some claimants, were among the principal evils the interpleader device -was intended to remedy.

III.

The -fact that State Farm had properly invoked the interpleader jurisdiction under .§ 1335 did not, however, entitle it to an order both enjoining prosecution of suits against it outside the confines of the interpleader proceeding and also extending such protection to its insured, the alleged tortfeasor. Still less was Greyhound Lines entitled to have that order expanded so as to protect itself and its driver, also alleged to be tortfeasors, from suits brought by its passengers in various state or federal courts. Here, the scope of the litigation, in terms of parties and claims, was vastly more extensive than the confines of the “fund,” the deposited proceeds of the insurance policy. In these circumstances, the mere existence of such a fund cannot, by use of interpleader, be employed to accomplish purposes that exceed the needs of orderly contest with respect'to the fund.

There are situations, of a type not present here, where the effect of interpleader is to confine the total litigation to a single forum and proceeding. One such case is where a stakeholder, faced with rival claims to the fund itself, acknowledges — or denies — his liability to one or the other of the claimants. In this situation, the fund itself is the target of the claimants. It marks the outer limits of the controversy. It is, therefore, reasonable and sensible that interpleader, in discharge of its office to protect the fund, should also protect the stakeholder from vexatious and multiple litigation. In this context, the suits sought to be enjoined are squarely within the language of 28 U. S. C. § 2361, which provides iii part:

“In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action . . . .” (Emphasis added.)

But the present case is another matter. Here, an accident has happened. Thirty-five passengers or their representatives have claims which they wish- to press against a variety of defendants: the bus company,- its driver, the owner of the truck, and the truck driver. The circumstance that one of the prospective defendants happens to have an insurance policy is a fortuitous event which should not of itself shape the nature of the ensuing litigation. For example, a resident of California, injured in California aboard a bus owned by a California corporation should not be forced to sue that corporation anywhere but in California simply because another prospective defendant carried an insurance policy. And an insurance company whose maximum interest in the case cannot exceed $20,000 and who in fact asserts that it has no interest at all, should not be allowed to determine that dozens of tort plaintiffs must be compelled to press their claims — even those claims which are not against the insured and which in no event could be satisfied out of the meager insurance fund — in a single forum of the insurance company’s choosing. There is nothing in the statutory scheme, and very little in the judicial and academic commentary üpon that scheme, which requires that the tail be allowed to wag the dog in this fashion.

State Farm’s interest in this case, which is the fulcrum of the interpleader procedure, is confined to its $20,000 fund. That interest receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the District Court sought to control claimants’ lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.

We recognize, of course, that our view of interpleader means that it cannot be used to solve all the vexing problems of multiparty litigation arising out of a mass tort.' But interpleader was never intended to perform such ⅛ function, to be an all-purpose “bill of peace.” Had it been so intended, careful provision would necessarily have been made to insure that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights— such as the right to choose the forum in which to establish their claims, subject to generally applicable rules-of jurisdiction, venue,. service of process, removal, and change of venue. None of the legislative and academic sponsors of a modern federal interpleader device viewed their accomplishment as a “bill of peace,” capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding. And only in two reported instances has a federal interpleader court sought to control the underlying litigation against alleged tortfeasors as opposed to the allocation of a fund among successful tort plaintiffs. See Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D. C. S. D. Ind. 1964) (where there was virtually no objection and where all of the basic tort suits would in any event have been prosecuted in the forum state), and Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474 (D. C. E. D. La. 1960). Another district court, on the other hand, has recently held that it lacked statutory authority to enjoin suits against the alleged tortfeasor as opposed to proceedings against the fund itself. Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D. C. W. D. La. 1966).

In light of the evidence that federal interpleader was not intended to serve the function of a “bill of peace” in the context of multiparty litigation arising out of a mass tort, of the anomalous power which such a construction of the statute would give the stakeholder, and of the thrust of the statute and the purpose it was intended to serve, we hold that the interpleader statute. did not authorize the injunction entered in the present case. Upon remand, the injunction is to be modified consistently with this opinion.

H — ( <!

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

It is so ordered.

Mr. Justice Douglas,

dissenting in part.

While I agree with the Court’s view as to “minimal diversity” and that the injunction, if granted, should run only against prosecution of suits against the insurer, I feel that the use which we today allow to be made of the federal interpleader statute, 28 U. S. C. § 1335, is, with all deference, unwarranted. How these litigants are “claimants” to this fund in the statutory sense is indeed a mystery. If they are not “claimants” of the fund, neither are they in the category of those who “are claiming” or who “may claim” to be entitled to it.

This insurance company’s policy provides that it will “pay on behalf of the insured all sums which the insured-shall become legally obligated to pay.” To date the insured has not become “legally obligated” to pay any sum to any litigant. Since nothing is owed under the policy, I fail to see how any litigant can be a “claimant” as against the insurance company. If that is doubtful the doubt is resolved by two other conditions:

(1) The policy states “[n]o action shall lie against the company . . . until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

(2) Under California law where the accident happened and under Oregon law where the insurance contract was made, a direct action against the insurer is not allowable until after a litigant receives a final judgment against the insured.

Thus under this insurance policy as enforced in California and in Oregon a “claimant” against the insured can become a “claimant” against the insurer only after final judgment against the insured or after a consensual written agreement of the insurer, a litigant, and the insured. Neither of those two events has so far happened.

This construction of the word “claimant” against the fund is borne' out, as the Court of Appeals noted, by Rule 22 (1) of the Federal Rules of Civil Procedure.' That Rule, also based on. diversity óf citizenship, differs only in the district where the suit may be brought and in the reach of service of process, as the Court points out. But it illuminates the nature of federal interpleader for it provides that only “persons having claims against the plaintiff [insurer] may be joined as defendants and required to interplead.”

Can it be that we have two kinds of interpleader statutes as between which ah insurance company can choose: one that permits “claimants” against the insurer (“persons having claims against the plaintiff”) to be joinéd and the other that permits “claimants” against the insured to be joined for the benefit of the insurer even though they may never be “claimants” against the insurer? I cannot believe that Congress launched such an irrational scheme.

The Court rests heavily on the fact that the 1948 Act contains the phrase “may claim,” while the 1926 and 1936 . interpleader statutes, contained the phrase “are claiming.” From this change in language the Court infers that Congress intended to allow an insurance company to interplead even though a judgment has not been entered against the insured and there is no direct-action statute. This inference is drawn despite the fact that the Reviser’s Note contains no reference to the change in wording or its purpose; the omission is dismissed as “inadvertent.” But it strains credulity to suggest that mention would not have been made of such a drastic change, if in fact Congress intended to make it. And, despite the change in wording, under the 1948 Act there must be “adverse claimants . . . [who] are claiming or may claim to be entitled to such money ... , or to any one or more of the benefits arising by virtue of any . . . policy . . . .” Absent a direct-action statute, the victims are not “claimants” against the insurer until their claims against the insured have been reduced to judgment. Understandably, the insurance company wants the best of two worlds. It does not want an action- against it until judgment against its insured. But, at the same time, it wants the benefits of an interpleader statute. Congress could of course confer such a benefit. But it is not for this Court to grant dispensations from the effects of the statutory scheme which Congress has erected.

I would construe its wbrds in the normal sense and ■affirm the Court of Appeals.

       28 U. S. C. § 1335 (a) provides: “The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a . . . policy of insurance ... of value or amdunt of $500 or more ... if
      “(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of- any . . . policy . . . ; and if (2) the plaintiff has . . . paid . . . the amount due under such obligation into the registry of the court, there to abide the judgment of the court . . . ,”

       28 U. S. C. §1292 (a)(1).

       We need not pass upon the Court of Appeals’ conclusions with respect to the interpretation of interpleader under Rule 22, which provides that “(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. . . First, as we indicate today, this action was properly brought under § 1335. Second, State Farm did not purport to invoke Rule 22. Third, State Farm could not have invoked it in light of venue and service of process limitations. Whereas statutory inter-pleader may be brought in the district where any claimant resides (28 U. S. C. § 1397), Rule interpleader based upon diversity of citizenship may be brought only in the district where all plaintiffs or all defendants reside (28 U. S. C. § 1391 (a)). And whereas statutory interpleader enables a plaintiff to employ nationwide service of process (28 U. S. C. § 2361), service of process under Rule 22 is confined to that providerbin Rule 4. See generally 3 Moore, Federal Practice ¶ 22.04.
      With respect to the Court of Appeals’ views on Rule 22, which seem to be shared by our Brother Douglas, compare Underwriters at Lloyd’s v. Nichols, 363 F. 2d 357 (C. A. 8th Cir. 1966), and A/S Krediit Pank v. Chase Manhattan Bank, 155 F. Supp. 30 (D. C. S. D. N. Y. 1957), aff’d, 303 F. 2d 648 (C. A. 2d Cir. 1962), with National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D. C. N. D. Ohio 1964), and American Indemnity Co. v. Hale, 71 F. Supp. 529 (D. C. W. D. Mo. 1947). See also 3 Moore, Federal Practice ¶ 22.04, at 3008 and n. 4.

       See, e. g., Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D. C. W. D. La. 1966); Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D. C. S. D. Ind. 1964); Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474 (D. C. E. D. La. 1960); Onyx Refining Co. v. Evans Production Corp., 182 F. Supp. 253 (D. C. N..D. Tex. 1959).' Although Travelers and Revere were brought in Louisiana, a State which authorizes “direct action” suits against insurance companies, the statute .was not relied upon in Travelers (see 260 F. Supp., at 533, n. 3), and furnished only an alternative ground in Revere (see .188 F. Supp., at 482-483).
      The only post-1948 case relied upon by the Court of Appeals and respondents, National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D. C. N. D. Ohio 1964), turns out to be of little assistance with respect to statutory interpleader since that court denied statutory interpleader solely on the ground that all claimants were citizens of Ohio and hence lacked the required diversity of citizenship. Id., at 619.

       See, e. g., Haynes v. Felder, 239 F. 2d 868, 872-875 (C. A. 5th Cir. 1957); Holcomb v. Aetna Life Insurance Co., 255 F. 2d 577, 582 (C. A. 10th Cir.), cert. denied sub nom. Fleming v. Aetna Life Insurance Co., 358 U. S. 879 (1958); Cramer v. Phoenix Mut. Life Ins. Co., 91 F. 2d 141, 146-147 (C. A. 8th Cir.); cert. denied, 302 U. S. 739 (1937); Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860, 863 (D. C. S. D. Ind. 1964); 3 Moore, Federal Practice ¶ 22.09, at 3033.

       Subsequent decisions of this Court indicate that Strawbridge is not to be given an expansive reading. See, e. g., Louisville Railroad Co. v. Letson, 2 How. 497, 554-556 (1844), expressing the view that in 1839 Congress had in fact acted to “rid the courts of the decision in the case of Strawbridge and Curtis.” Id., at 556.

       See, e. g., American Fire & Cas. Co. v. Finn, 341 U. S. 6, 10, n. 3 (1951), and Barney v. Latham, 103 U. S. 205, 213 (1881), construing the removal statute, now 28 U. S. C. § 1441 (c); Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921), concerning class actions; Wichita R. R. & Light Co. v. Public Util. Comm., 260 U. S. 48 (1922), dealing with intervention by co-citizens. Full-dress arguments for the constitutionality of “minimal diversity” in situations like interpleader-, which arguments need not be rehearsed here, are set out in Judge Tuttle’s opinion in Haynes v. Felder, 239 F. 2d, at 875-876; in Judge Weinfeld’s opinion in Twentieth Century-Fox Film Corp. v. Taylor, 239 F. Supp. 913, 918-921 (D. C. S. D. N. Y. 1965); and in ALI, Study of the Division of- Jurisdiction Between State and Federal Courts 180-190 (Official Draft, Pt. 1, 1965); 3 Moore, Federal Practice ¶ 22.09, at 3033-3037; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 393-406 (1940); Chafee, Interpleader in the United States .Courts, 41 Yale L. J. 1134, 1165-1169 (1932). We noté that-the American Law Institute’s proposals for revision of the Judicial Code to deal with the problem of multiparty, multijurisdiction litigation are predicated upon the permissibility of “minimal diversity” as a jurisdictional basis.

       44 Stat. 416 (1926), which added casualty companies to the enumerated categories of plaintiffs able to bring interpleader, and provided for the enjoining of proceedings in other courts.

       49 Stat. 1096 (1936), which'authorized “bills in the nature of interpleader,” meaning those in which the plaintiff is not wholly disinterested with respect to the fund he has deposited in court. See Chafee, The Federal Interpleader Act of 1936: I, 45 Yale L. J. 963 (1936).

       39 Stat. 929 (1917). See Klaber v. Maryland Casualty Co., 69 F. 2d 934, 938-939 (C. A. 8th Cir. 1934), which held that the omission in the 1926 Act of the earlier statute’s “may claim” language required the denial of interpleader in the face of unliquidated claims (alternative holding).

       Although the Reviser’s Note did not refer to the statutory change or its purpose, we have it on good authority that it was the omission in the Note rather than the statutory change which was inadvertent. See 3 Moore, Federal Practice ¶ 22.08, at 3025-3026, n. 13. And it was widely, assumed that restoration of the “may claim” language would have the effect of overruling the holding in Klaber, supra, that one may not invoke interpleader to protect against unliquidated claims. See, e. g., Chafee, 45 Yale L. J., at 1163-1167; Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 418-420 (1940). In circumstances like these, the 1948 revision of the-. Judicial Code worked substantive changes. Ex parte Collett, 337 U. S. 55 (1949).

       See cases listed in n. 4.

       3 Moore', Federal Practice ¶ 22.08, at 3024-3025; Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv. L. Rev. 27, 41-42 (1956).

       See Keeton, op. cit. supra, n. 13.

       The insurance problem envisioned at the time was that of an insurer faced with conflicting but mutually exclusive claims to a policy, rather than an insurer confronted with the problem of allocating a fund among various claimants whose independent claims may exceed the amount of the fund. S. Rep. No. 558, 74th Cong., 1st Sess., 2-3, 7, 8 (1935); Chafee, Modernizing Interpleader, 30 Yale L. J. 814, 818-819 (1921).

       This was the classic situation envisioned by the sponsors of interpleader. See n. 15, supra.

       There is not a word in the legislative history suggesting such, a purpose. See S. Rep. No. 558, 74th Cong., 1st Sess. (1935). And Professor Chafee, upon whose work the Congress heavily depended, has written that little thought was given to the scope of the “second stage” of interpleader, to just what would be adjudicated by the interpleader court. See Chafee, Broadening the Second Stage of Federal Interpleader, 56 Harv. L. Rev. 929, 944-945 (1943). We note that in Professor Chafee’s own study of the bill of peace as a device for dealing with the problem of multiparty litigation, he fails even to mention interpleader. See Chafee, Some Problems of Equity 149-198 (1950). In his writing on interpleader, Chafee assumed that the interpleader court would allocate the fund “among all the claimants who get judgment within a reasonable time ...” Chafee, The Federal Interpleader Act of 1936: II, 45 Yale L. J. 1161, 1165 (1936). See also Chafee, 49 Yale L. J., at 420-421.

       We find it unnecessary to pass upon respondents’ contention, raised in the courts below but not passed upon by the Court óf Appeals, that interpleader should have been dismissed on the ground that the 11 Canadian claimants are “indispensable parties” who .have-not been properly served. The argument is that 28 U. S. C. § 2361 provides the exclusive mode of effecting service of process in statutory interpleader, and that § 2361 — which authorizes a district court to “issue its process for all claimants” but subsequently refers to service of “such process” by marshals “for the respective districts where the claimants reside or may be found” — does not permit service of process beyond the Nation’s borders. Since our decision will require basic reconsideration of the litigation by the parties as well as the lower courts, there appears neither need nor necessity to determine this question at this time. We intimate no view as to the exclusivity of § 2361, whether it authorizes service of process in foreign lands, whether in light of the limitations we have imposed on the interpleader court’s injunctive powers the Canadian claimants are in fact “indispensable parties” to the interpleader proceeding itsélf, or whether they render themselves amenable to service of process under § 2361 when they come into an American jurisdiction to establish their rights with respect either to the alleged tortfeasors or to the insurance fund. See 2 Moore, Federal Practice ¶4.20, at 1091-1105.

      “(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of .$500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more ... if
      “(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property . . . into the registry of the court, there to abide the judgment of the court . . .

       Under the policy issued by State Farm, it promises “ [t] o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons . . . caused by accident arising, out of the ownership, maintenance or use, including loading or unloading, of the owned automobile . ” The insured will “become legally •obligated to pay” only if he has been found to be at fault for the accident, or if the victim’s claim has been settled in accord with the policy terms. The claim against the insurance company is thus contingent on a finding that the insured was at fault or a settlement. This is unlike the situation where the insurance company has issued a policy such as a workmen’s compensation policy which insures the insured for liability imposed in the absence of fault.

       See Calif.. Ins. Code § 11580 (b) (2); Ore. Rev. Stat. § 23.230..

       In those States having a direct-action statute, allowing an action against the insurer prior to judgment against the insured, inter-pleader jurisdiction can be sustained absent a judgment against the insured. The direct-action statute gives the injured party the status of a “claimant” against the insurer. See, e. g., Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474, 482-483.

      Rule 22 (1) provides in part:
      “Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.”

       See n. 3 of the Court’s opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NOWAKOWSKI v. MARONEY, CORRECTIONAL SUPERINTENDENT.
    No. 222.
    Argued March 13, 1967.
    Decided April 10, 1967.

      Daniel J. O’Hern, by appointment of the Court, 385 U. S. 804, argued the cause and filed a brief for petitioner.

      William E. Pfadt argued the cause and filed a brief for respondent.
   Per Curiam.

The petitioner, a prisoner in the Pennsylvania penal system, sought a writ of habeas corpus from the United States District Court for the Western District of Pennsylvania. He alleged, among other things, that his appointed counsel in the state trial which resulted in his conviction had been ineffective, and that he had therefore been denied the aid and assistance of counsel guaranteed by the Constitution. Gideon v. Wainwright, 372 U. S. 335. The District Court granted Nowakowski a hearing and appointed a lawyer to assist him. Following the hearing and “[vjiewing the record of the trial and the habeas corpus hearing as a whole” the -court concluded that Pennsylvania “cannot be convicted of denying effective aid and assistance of counsel to the relator . . . .” However, the District Judge issued the certificate of probable cause necessary to allow a person in state chstody to appeal a denial of federal habeas corpus. 28 U. S. C. § 2253.

The lawyers who assisted the petitioner at the habeas hearing were then allowed to withdraw by the District Court. Nowakowski subsequently petitioned the Court, of Appeals for the Third Circuit to allow him .to appeal in forma pauperis from the District Court’s denial of relief. He also asked to be allowed to proceed in the Court of Appeals on written briefs and sought the appointment of counsel. That court denied the petition in the following order:

“Upon consideration of appellant’s petition for leave to proceed in forma pauperis and to file handwritten briefs; and for appointment of counsel in the above-entitled case;
“It is ORDERED that the petition be and it hereby is denied.”

Following the Third Circuit’s denial of Nowakowski’s petition for rehearing, he sought a writ of certiorari from this Court. It was granted, as was.his motion to proceed in forma pauperis. 384 U. S. 984.

We hold that the Court of Appeals erred in denying. the petitioner the right to appeal after the District Judge had issued a § 2253 certificate of probable cause. It is established law that a circuit judge or justice entertaining an application for a certificate should give “weighty consideration” to its prior denial by a district judge. Sullivan v. Heinze, 250 F. 2d 427, 429; Sokol, Federal Habeas Corpus § 17, at 94 (1965). Cf. In re Woods, 249 F. 2d 614, 616. But when a district judge grants such a certificate, the court of appeals must grant an appeal in forma pauperis (assuming the requisite showing of poverty), .and proceed to a disposition of the appeal in accord with its ordinary procedure.

•The order of the Court of Appeals for the Third Circuit is therefore vacated and the case is remanded for further proceedings consistent with this opinion.


text:
    D’AMICO v. BALTIMORE & OHIO RAILROAD CO.
    No. 1028.
    Decided April 10, 1967.
    Appellant pro se.

      Sydney R. Prince, Jr., for appellee.
   Per Curiam.

The motion to dispense with printing the jurisdictional statement is granted. The motion to dismiss is also granted and the appeal is dismissed for want of jurisdiction.


text:
    FLORIDA EAST COAST RAILWAY CO. v. UNITED STATES et al.
    No. 638.
    Decided April 10, 1967.

      A. 'Alvis Layne for appellant, in No. 638; Wm. Reece Smith, Jr., for appellant in No. 639; Edward J. Hickey, Jr., James L. Highsaw, Jr., William G. Mahoney and
      William J. Hickey for appellants in No. 640; W. Graham Claytor, Jr., and John K. Mallory, Jr., for appellant in No. 641.

      Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner, Edwin M. Zimmerman and Lionel Kestenbaum for the United States in Nos. 638, 639 and 641; Robert W. Ginnane, Fritz R. Kahn and Betty Jo Christian for the Interstate Commerce Commission in Nos. 638, 639 and 641; Paul A. Porter and Dennis G. Lyons for Seaboard Air Line Railroad Co. et al., appellees.

      James M. Weaver filed a brief for the Tampa Port Authority, as amicus curiae, urging reversal. Lewis W. Petteway and B. Kenneth Gatlin filed a brief for the Florida Public Service Commission, as amicus curiae, in opposition to the motions to affirm.

      Together with No. 639, City of Tampa v. United States et al.; No. 640, Railway Labor Executives’ Association et al. v. United States et al.; and No. 641, Southern Railway System v. United States, also on appeal from the same court.

   Per Curiam.

The motions to affirm in Nos. 638, 639, and 641 are granted and the judgment is affirmed.

The motion to dismiss in No. 640 is granted and the appeal is dismissed , as moot.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted in Nos. 638, 639,- and 641.

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


text:
    CROSS v. CALIFORNIA.
    No. 1295,
    Mise.
    Decided April 10, 1967.
   Per Curiam.

The motion to use the record in No. 1161, Misc., October Term, 1965, is granted.

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


text:
    YOUNG v. DIRECTOR, U. S. BUREAU OF PRISONS, et al.
    No. 1317,
    Mise.
    Decided April 10, 1967.
    Appellant pro se..

      Solicitor General Marshall for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction.


author: Mr. Chief Justice Warren Mr. Justice Douglas,

text:
    PIERSON et al. v. RAY et al.
    No. 79.
    Argued January 11, 1967.
    Decided April 11, 1967.

      Carl Rachlin argued the cause for petitioners in No. 79 and for respondents in No. 94. With him on the briefs was Melvin L. Wulf.

      Elizabeth Watkins Rulen Grayson argued the cause for respondents in No. 79 and for petitioners in No. 94. With her on the brief was Thomas H. Watkins.

      Together with No. 94, Ray et al. v. Pierson et al., also on certiorari to the same court.

   Mr. Chief Justice Warren

delivered the opinion of Court.

These cases present issues involving the liability of local police officers and judges under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U. S. C. § 1983. Petitioners in No. 79 were members of a group 'of 15 white and Negro ..Episcopal clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi, in 1961. They were arrested by respondents Ray, Griffith, and Nichols, policemen of the City of Jackson, and charged with violating § 2087.5 of the Mississippi Code, which makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer. Petitioners waived a jury trial and were convicted of the offense by respondent Spencer, a municipal police justice. They were each given the maximum sentence of four months in jail and a fine of $200. On appeal petitioner Jones was accorded a trial de novo in the County Court, and after the city produced its evidence the court granted his motion for a directed verdict. The cases against the other petitioners were then dropped.

Having been vindicated in the County Court, petitioners brought this action for damages in the United States District Court for the Southern District of Mississippi, Jackson Division, alleging that respondents had violated § 1983, supra, and that respondents were liable at common law for false arrest and imprisonment. A jury returned verdicts for-respondents on both counts. On appeal, the Court of Appeals for the Fifth. Circuit held that respondent Spencer was immune from liability under both § 1983 and the common law of Mississippi for acts committed within his judicial jurisdiction. 352 F. 2d 213. As to the police officers, the court noted that § 2087.5 of the Mississippi Code was held unconstitutional as applied to similar facts in Thomas v. Mississippi, 380 U. S. 524 (1965). Although Thomas was decided years after the arrest involved in this trial, the court held that the policemen would be liable in a suit under § 1983 for ¡an unconstitutional arrest even if they acted in good faith and with probable cause in making an 1 arrest under a state statute not yet held invalid. The court believed that this stern result was required by Monroe v. Pape, 365 U. S. 167 (1961). Under the count based oh the common law of Mississippi, however, it held that the policemen would not be liable if they had probable cause to believe that the statute had been violated, because Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not. Apparently dismissing the common-law claim, the Court of Appeals reversed and remanded for a new trial on the § 1983 claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party. At the new trial, however,, the court held that the ministers could not recover if it were proved that they went to Mississippi anticipating that they would be illegally arrested because such action would constitute consent to the arrest under the principle of volenti non fit injuria, he'who consents to a wrong cannot be injured.

We granted certiorari in No. 79 to consider whether a local judge is liable for damages under § 1983 for an unconstitutional conviction and whether the ministers should be denied recovery against the police officers if they acted with the anticipation that they would be illegally arrested. We also granted the police officers’ petition in No. 94 to determine if the Court of Appeals correctly held that they could not assert the defense of good faith and probable cause to an action under § 1983 for unconstitutional arrest.

The evidence at the federal trial showed that petitioners and other Negro and white Episcopal clergymen undertook a “prayer pilgrimage” in 1961 from New Orleans to Detroit. The purpose of the pilgrimage was to visit church institutions and other' places-in the North and South to promote racial equality and integration, and, finally, to report to a church convention in Detroit. Letters from the leader of the group to its members indicate that the clergymen intended from the beginning to go to Jackson and attempt to use segregated facilities at the bus terminal there, and that they fully expected to be arrested for doing so. The group made plans based on the assumption that they would be arrested if they attempted peacefully to exercise their right as interstate travelers to use the waiting rooms and other, facilities at the bus terminal, and the letters discussed arrangements for bail and other matters relevant to arrests.

The ministers stayed one night in Jackson, and went to the bus terminal the next morning to depart for Chattanooga, Tennessee. They, entered the waiting room, disobeying a sign at the entrance that announced “White Waiting Room Only — By Order of the Police Department.” They then turned to enter the small terminal restaurant but were stopped by two Jackson police officers, respondents Griffith and Nichols, who had been awaiting their arrival and who ordered them to “move on.” The ministers replied that they wanted to eat, and refused to move on. Respondent' Ray, then a police captain and now the deputy chief of police, arrived a few minutes later. The ministers were placed under arrest and taken to the jail.

All witnesses including the police officers agreed that the ministers entered the waiting room peacefully and engaged in no boisterous or objectionable conduct while in the “White Only” area. There was conflicting testimony on the number of bystanders present and their behavior. Petitioners testified that there was no crowd at the station, that no one followed them into the waiting room, and that no one uttered threatening words or made threatening gestures. The police testified that some 25 to 30 persons followed the ministers into the terminal, .that persons in the crowd were in a very dissatisfied and ugly mood, and that they were mumbling and making unspecified threatening gestures. The police did not describe any specific threatening incidents, and testified that they took no action against any persons in the crowd who were threatening violence because they “had determined that the ministers was the cause of the violence if any might occur,” although the ministers were concededly orderly and polite and the police did not claim that it was beyond their power to control the allegedly disorderly crowd. The arrests and convictions were followed by this lawsuit.

We find no difficulty in agreeing with the Court of Appeals that Judge Spencer is immune from liability for damages for his role in these convictions. The record is barren of any proof or specific allegation that Judge Spencer played any role in these arrests and convictions other than.to adjudge petitioners guilty when their cases came before his court. Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges shoúld be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide'all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.

We do.not believe that this settled principle of law was abolished by ••§ 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U. S. 367 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable catise is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F. 2d 327 (C. A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.

The Court of Appeals held that the officers had such á limited privilege under the common law of Mississippi, and indicated that it would have recognized a similar privilege under § 1983 except that it felt compelled to hold otherwise by our decision in Monroe v. Pape, 365 U. S. 167 (1961). Monroe v. Pape presented no question of immunity, however, and none was decided. The complaint in that case alleged that “13 Chicago police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked évery room, emptying drawers and ripping mattress covers. It further allege[d] that Mr. Monroe was then taken to the police station and detained on ‘open’ charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him.” 365 U. S., at 169. The police officers did not choose to go to trial and defend the case on the hope that they could convince a jury that they believed in good faith that it was their duty to assault Monroe and his. family in this manner. Instead, they sought dismissal of the complaint, contending principally that their activities were so plainly illegal under state law that they did not act “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory” as required by § 1983. In rejecting this argument we- in no way intimated that the defense of good faith and probable cause was foreclosed by the statute. We also held that the complaint should not be'dismissed for failure to state that the officers had “a specific intent to deprive a person of a federal right,” but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the same paragraph, § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U. S., at 187. Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to. them in the action under § 1983. This holding does not, however, mean that the count based thereon should be dismissed. The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision in Thomas v. Mississippi, 380 U. S. 524. We agree that a police officer is not charged with predicting the future course of constitutional law. But the petitioners in this case did not simply argue that they were arrested under a statute later held unconstitutional. They claimed and attempted to prove that the police officers arrested them solely for attempting to use the “White Only” waiting room, that no crowd was present, and that no one threatened violence or seemed about to cause a disturbance. The officers did not defend on the theory that they believed in good faith that it was constitutional to arrest the ministers solely for using the waiting room. Rather, they claimed and attempted to prove that they did not arrest the ministers for the purpose of preserving the custom of segregation in Mississippi, but solely for the purpose of preventing violence. They testified, in contradiction to the ministers, that a crowd gathered and that imminent violence was likely. If the jury believed the testimony of the officers and disbelieved that of the ministers, and if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional. The jury did resolve the factual issues in favor of the officers but, for reasons previously stated, its verdict was influenced by irrelevant and prejudicial evidence. Accordingly, the case must be remanded to the trial court for a new trial.

It is necessary to decide what importance should be given at the new trial to the substantially undisputed fact that the petitioners went to Jackson expecting to be illegally arrested. We do not agree with the Court of Appeals that they somehow consented to the arrest because of their anticipation that they would be illegally arrested, even assuming that they went to the Jackson bus terminal for the sole purpose of testing their rights to unsegregated public accommodations. The case contains no proof or allegation that they in any way tricked or goaded the officers into arresting them. The petitioners had the right to use the waiting room of the Jackson bus terminal, and their deliberate exercise of that right in a peaceful, orderly, and inoffensive manner does not disqualify them from seeking damages under § 1983.

The judgment of the Court of Appeals is affirmed' in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

dissenting.

I do not think that all judges, under all circumstances, no matter hqw outrageous their conduct are immune ' from suit under 17 Stat. 13, 42 U. S. C. § 1983. The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.

The statute, which came on the.books as § 1 of the Ku Klux Klan Act of April 20, 1871,17 Stat. 13, provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To most, “every person” would mean every person, not every person except judges. Despite the plain import of those words, the Court decided- in Tenney v. Brandhove, 341 U. S. 367, that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators “were acting in a field where legislators traditionally have power to act.” Id., at 379; I dissented from the creation of that judicial exception as I do from the creation of the present one.

The congressional purpose seems to me to be clear. A condition of lawlessness existed in certain of the States, under which people were being denied their civil rights. Congress intended to provide a remedy for the wrongs being perpetrated. And its members were not unaware that certain members of the judiciary were implicated in the state of affairs which the statute was intended to rectify. It was often noted that “[ijmmunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.” Cong. Globe, 42d Cong., 1st Sess., 374. Mr. Rainey of South Carolina noted that “[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity.” Id., at 394. Congressman Beatty of Ohio claimed that it was the duty of Congress to listen to the appeals of those who “by reason of popular sentiment or secret organizations or prejudiced juries or bribed judges, [cannot] obtain the rights andi.privileges due an American. citizen . . . .” Id., at 429. The members supporting the proposed measure were apprehensive that there had been a complete breakdown in the administration of justice in certain States and that laws nondiscriminatory on their face were being applied in a discriminatory manner, that the newly won civil rights of the Negro were being ignored, and that the Constitution was being defied. It was against this background that the section was passed, and it is against this background that it should be interpreted.

It is said that, at the timé of the statute’s enactment, the doctrine of judicial immunity was well settled and that Congress cannot be presumed to have intended to abrogate the doctrine since it did not clearly evince such a' purpose. This view is beset by many difficulties. It assumes that Congress could and should specify in advance all the possible circumstances to which a remedial statute might apply and state which cases are within the scope of a statute.

“Underlying [this] view is an atomistic conception of intention, coupled with what may be called a pointer theory of meaning. This view conceives the mind to be directed toward individual things, rather than toward general ideas, toward distinct situations of fact rather than toward some significance in human affairs that these situations may share. If this view were taken seriously, then we would have, to regard the intention of the draftsman of a statute directed against ‘dangerous weapons’ as being directed toward an endless series of individual objects: revolvers, automatic pistols, daggers, Bowie knives, etc. If a court applies the statute to a weapon its draftsman had not thought of, then it would be ‘legislating,’ not ‘interpreting,’ as even more obviously it would be if it were to apply the statute to a weapon not yet invented when the statute was passed.” Fuller, The Morality of Law 84 (1964).

Congress of course acts in the context of existing common-law rules, and in construing a statute a court considers the “common law before the making of the Act.” Heydon’s Case, 3 Co. Rep. 7 a, 76 Eng. Rep. 637 (Ex. 1584). But Congress enacts a statute to remedy the inadequacies of the pre-existing law, including the common law. It cannot be presumed that the common law is the perfection of reason, is superior to statutory law (Sedgwick, Construction of Statutes 270 (1st ed. 1857); Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 404-406 (1908)), and that the legislature always changes law for the worse. Nor should the canon of construction “statutes in derogation of the common law are to be strictly construed” be applied so as to weaken a remedial statute whose purpose is to remedy the defects of the pre-existing law.

The position that Congress did not intend to change the common-law rule of judicial immunity ignores the fact that every member of Congress who spoke to the issue assumed that the words of the statute meant what they said and that judges would be liable. Many members of Congress objected to the statute because it imposed liability on members of the judiciary. Mr. Arthur of Kentucky opposed the measure because:

“Hitherto ... no judge or court has been held liable, civilly or criminally, for judicial acts . . . . Under the provisions of [section 1] every judge in the State court . . . will enter upon and pursue the call of official duty with the sword of Damocles suspended over him . . '. .” Cong. Globe, 42d Cong., 1st Sess., 365-366.

And Senator Thurman noted that:

“There have been two or three instances already under the civil rights bill of State judges being taken into the United States district court, sometimes • upon indictment for the offense ... of honestly and conscientiously deciding the law to be as they understood it to be. . . .
“Is [section 1] intended to perpetuate that? Is it intended to enlarge it? Is it intended to extend it so that no longer a judge sitting on the bench to decide causes can decide them free from any fear except that of impeachment, which never lies in the absence of corrupt motive? Is that to be extended, so that every judge of a State may be liable to be dragged before some Federal judge to vindicate his opinion and to be mulcted in damages if that Federal judge shall think the opinion was erroneous? That is the language of this bill.” Cong. Globe, 42d Cong., 1st Sess., Appendix 217. ■

Mr. Lewis of Kentucky expressed the fear that:

“By the first section, in certain cases, the judge of a State court, though acting under oath of office, is made liable to a suit in the Federal court and subject to damages for his decision against a suitor. ...” Cong. Globe, 42d Cong., 1st Sess., 385.

Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to “any person.” There was no exception for members of the judiciary. In light of the sharply contested nature of the issue, of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.

The section’s purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.

Today’s decision is not dictated by our prior decisions. In Ex parte Virginia, 100 U. S. 339, the Court held that a judge who excluded Negroes from juries could be held liable under the Act of March 1, 1875 (18 Stat. 335), one of the Civil Rights Acts. The Court assumed that the judge was merely performing a ministerial function. But it went on to state that the judge.would be liable under the statute even if his actions were judicial. It is one thing to say that the common-law doctrine of judicial immunity is a defense to a common-law cause of action. But it is quite another to say that the common-law immunity rulé is a defense to liability which Congress has imposed upon “any officer or other person,” as in Ex parte Virginia, or upon “every person” as in these cases.

The immunity which the Court today grants the judiciary is not necessary to preserve an independent judiciary. If the threat of civil action lies in the back-, ground of litigation, so the argument goes, judges will be reluctant to exercise the discretion and judgment inherent in their position and vital to the effective operation of the judiciary. We should, of course, not protect a member of the judiciary “who is in fact guilty of using his powers , to vent his spleen upon others, or for any other personal motive' not connected with- the public good.” Gregoire v, Biddle, 177 F. 2d 579, 581. To deny recovery to a person injured by the ruling of a judge acting for personal gain or out of personal motives would be “monstrous.” Ibid. But, it is argued that absolute immunity is necessary to prevent the chilling effects of a judicial inquiry, or the threat of such inquiry, into whether, in fact, a judge has been unfaithful to his oath of office. Thus, it is necessary to protect the guilty as well as the innocent.

The doctrine of separation of powers is, of course, applicable only to the relations of coordinate branches of the- same government, not to the relations between the branches of the Federal Government and those of the States. See Baker v. Carr, 369 U. S. 186, 210. Any argument that Congress could not impose liability on state judges for the deprivation of civil rights would thus have to be based-upon the claim that doing so wpuld violate the theory of division of powers between the Federal and State Governments. This claim has been foreclosed by the cases recognizing “that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State ... Monroe v. Pape, 365 U. S. 167, 171-172. In terms of the power of Congress, I can see no difference between imposing liability' on a state police officer (Monroe v. Pape, supra) and on a state judge. The question presented is not of constitutional dimension; it ⅛ solely a question of statutory interpretation.

The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying “The King can do no wrong.” Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:

“I cannot believe that judges . . . would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences . . . from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small and would be easily- disposed of. While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, on sound principles, the authors of such wrong ought to be responsible to the parties wronged.” Dawkins v. Lord Paulet, L. R. 5 Q. B. 94, 110 (C. J. Cockburn, dissenting).

This is not to say that a judge who makes an honest mistake should be subjected to civil liability. It is necessary to exempt judges from liability for the consequences of their honest mistakes. The judicial function involves an informed exercise of judgment. It is often necessary to choose between differing versions of fact, to reconcile opposing interests, and to decide closely contested issues. Decisions must often be made in the heat of trial. A vigorous and independent mind is needed to perform such delicate tasks. It would be unfair to. require a judge to exercise his independent judgment and then to punish him for having exercised it in a manner which, in retrospect, was erroneous. Imposing liability for mistaken, though honest judicial acts, would curb the independent mind and spirit needed to perform judicial functions. Thus, a judge who sustains a conviction on what he forthrightly considers adequate evidence should n<*t be subjected to liability when an appellate court decides that the evidence was not adequate. Nor should a judge who allows a conviction under what is later held an unconstitutional statute.

But that is far different from saying that a judge shall be immune from the consequences of any of his judicial actions, and that he shall not.be liable for the knowing and intentional deprivation of a person’s civil rights. What about the judge who conspires with local law enforcement officers to “railroad” a dissenter? What about the judge who knowingly turns a trial into a “kangaroo” court? Or one who intentionally flouts the. Constitution in order to obtain a conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights.

The plight of the oppressed is indeed serious. Under City of Greenwood v. Peacock, 384 U. S. 808, the defendant cannot remove to a federal court to prevent a state court from depriving him of his civil rights. And under the rule announced today, the person cannot recover damages for the deprivation.

       “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to ■ be subjected, any citizen of the United States t>r other person within' the jurisdiction thereof to the deprivation of' any rights, privileges, or-immunities secured by the. Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U. S. C. § 1983.

      “1. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
      “(1) crowds or congregates with others in . . . any hotel, motel, store, restaurant, lunch counter, cafeteria, sandwich shop, ... or any other place of business engaged in selling or serving members of the public, or in or around any free entrance to any such place of business or public building, -or to any building- owned by another individual, or a corporation, or a partnership or an association, and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality, or county, in which such act or acts are committed, or by any law enforcement officer of the State of Mississippi, or any other authorized person, . . . shall be guilty of disorderly conduct, which is made a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two hundred dollars ($200.00), or imprisonment in the county jail for not more than four (4) months, or by both such fine and imprisonment . . . .”

       The ministers involved in No. 79 will -be designated as “petitioners” throughout this opinion, although they- are the respondents in No. 94.

       In Thomas various “Freedom Riders” were arrested and convicted under circumstances substantially similar to the facts of these cases. The police testified, that they ordered the “Freedom Riders” to leave because they feared that onlookers might breach the peace. We reversed without argument or opinion, citing Boynton v. Virginia, 364 U. S. 454 (1960). Boynton held that racial discrimination in a bus terminal restaurant utilized as an integral part of the transportation of interstate passengers violates § 216 (d) of the Interstate Commerce Act. State enforcement of such discrimination is barred by the Supremacy Clause.

       Respondents read the court’s opinion as remanding for a new trial on this claim. The court stated, however, that the officers “are immune from liability for false imprisonment at common law but not from liability for violations of the Federal statutes on civil rights. It therefore follows that there should be a new trial of the civil rights claim against the appellee police officers so that there may be a determination of the fact issue as to whether the appellants invited or consented to the arrest and imprisonment.” 352 F. 2d, at 221.

       Respondents did not challenge in their petition in No. 94 the holding of the Court of Appeals that a new trial is necessary because of the prejudicial cross-examination. Belatedly, they devoted -a section of their brief to the contention that the cross-examination was proper. This argument is no more meritorious than it is timelj-. The views of the Communist Party on racial equality were not an issue in these cases.

       Transcript of Record, at 347. (Testimony of Officer Griffith.)

       Petitioners attempted to suggest a “conspiracy” between Judge Spencer and the police officers by questioning him about his reasons for finding petitioners guilty in these cases and by showing that he had found other “Freedom Riders” guilty under similar circumstances in previous eases. The proof of conspiracy never went beyond this suggestion that inferences could be drawn from Judge. Spencer’s judicial decisions. See Transcript of Record, at 352-371.

       Since our decision in Tenney v. Brandhove, supra, the courts of appeals have consistently held that judicial immunity is a defense to an action under § 1983. See Bauers v. Heisel, 361 F. 2d 581 (C. A. 3d Cir. 1966), and cases cited therein.

       See Caveat, Restatement, Second, Torts §121, at 207-208 (1965); Miller v. Stinnett, 257 F. 2d 910 (C. A. 10th Cir. 1958).

      See Golden v. Thompson, 194 Miss. 241, 11 So. 2d 906 (1943).

       The petition for certiorari in No. 79 also presented the question whether the Court of Appeals correctly dismissed the count based on the common law of Mississippi. We do not ordinarily review the holding of a court of appeals on a matter of state law, and we find no reason for departing from that tradition in this case. The state common-law claim in this case is merely' cumulative, and petitioners’ right to recover for an invasion of their civil rights, subject to the defense of good faith and probable cause, is adequately secured by § 1983.

       “Remedial statutes are to be liberally construed.” See generally, Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950); Llewellyn, The Common Law Tradition, Appendix C (1960).

       As altered by the reviser who prepared the Revised Statutes of 1878, and as printed in 42 U. S. C. § 1983, the- statute refers to “every person” rather than to “any person.”

       The opinion in Ex parte Virginia, supra, did not mention Bradley v. Fisher, 13 Wall. 335, which held that a judge could not be held liable for causing the name of an attorney to be struck from the court rolls. But in Bradley, the action was not brought under any of the Civil Rights Acts,

       Other justifications for the doctrine of absolute immunity have been advanced: (1) preventing threat of suit from influencing decision; (2) protecting judges from liability for honest mistakes; (3) relieving judges of the time and expense of defending suits; (4) removing an impediment to responsible men entering the judiciary; (5) necessity of finality; (6) appellate review is satisfactory remedy; (7) the judge’s duty is to the public and not to the individual; (8) judicial self-protection; (9) separation of powers. See generally Jpnnings, Tort Liability of Administrative Officers, 21 Minn. L. Rev. 263, 274-272 (1937).

       Historically judicial immunity was a corollary to that theory. Since the King could do no wrong, the judges, his delegates for dispensing justice, “ought not to be drawn into question for any supposed corruption [for this tends] to the slander of the justice of the King.” Floyd & Barker, 12 Co. Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (Star Chamber 1607). Because the judges were the personal delegates of the King they should be answerable to him .alone. Randall v. Brigham, 7 Wall. 523, 539.

       A judge is liable for injury caused by a ministerial act; to have immunity the judge must be performing a judicial function. See, e.. g., Ex parte Virginia, 100 U. S. 339; 2 Harper & James, The Law of Tort's 1642-1643 (1956). The presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function. When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a “minister” of his own prejudices.