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

text:
    IMMIGRATION AND NATURALIZATION SERVICE v. ERRICO.
    No. 54.
    Argued October 20, 1966.
    Decided December 12, 1966.

      Solicitor General Marshall argued the cause for petitioner in No. 54 and for respondent in No. 91. With him on the briefs were Assistant Attorney General Vinson, Louis F. Claiborne, L. Paul Winings and Charles Gordon.

      Frank Ierulli argued the cause for respondent in No. 54. With him on the brief was Edwin J. Peterson.

      Julius C. Biervliet argued the cause for petitioner in No. 91. With him on the brief was Edward Q. Carr, Jr.

      Together with No. 91, Scott, aka Plummer v. Immigration and Naturalization Service, on certiorari to the United States Court of Appeals for the Second Circuit.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

We granted certiorari in these cases to resolve a conflict between the Second and Ninth Circuits on their interpretations of § 241 (f) of the Immigration and Nationality Act. The issue is identical in both cases and, therefore, lends itself to a single opinion.

Section 241 (f) reads as follows:

“The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.”

The issue is whether the statute saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident.

Respondent Errico in No. 54, a native of Italy, falsely represented to the immigration authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that misrepresentation he was granted first preference quota status under the statutory preference scheme then in effect, and entered the United States in 1959 with his wife. A child was born to the couple in 1960 and acquired United States citizenship at birth. In 1963 deportation proceedings were commenced against Errico on the ground that he was excludable at the time of entry as not “of the proper status under the quota specified in the immigrant visa.” Throughout the proceedings Errico insisted that he was saved from deportation by § 241 (f). The special inquiry officer of the Immigration and Naturalization Service ruled that relief under § 241 (f) was not available because Errico had not complied with quota requirements and, hence, was not “otherwise admissible at the time of entry.” The Board of Immigration Appeals affirmed the deportation order but the Court of Appeals for the Ninth Circuit reversed, holding that the construction of the statute adopted by the Board would strip it of practically all meaning, since a material misrepresentation would presumably be given to conceal some factor that would bear on admissibility. 349 F. 2d 541. We granted certiorari. 383 U. S. 941.

Petitioner Scott in No. 91, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for entry into the country. She has never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who became an American citizen at birth. When the fraud was discovered, deportation proceedings were begun, and a special inquiry officer of the Immigration and Naturalization Service found her deportable on the ground that she was not a nonquota immigrant as specified in her visa. The Board of Immigration Appeals affirmed, and the Court of Appeals for the Second Circuit affirmed the Board. 350 F. 2d 279. The court agreed with the Board of Immigration Appeals that a sham marriage contracted solely to circumvent the immigration laws would not confer nonquota status on an alien as the spouse of an American citizen. It also affirmed the ruling that Mrs. Scott was not entitled to relief under § 241 (f) because she was not otherwise admissible at the time of entry, since her country’s quota was oversubscribed. We granted certiorari. 383 U. S. 941.

At the outset it should be noted that even the Government agrees that § 241 (f) cannot be applied with strict literalness. Literally, § 241 (f) applies only when the alien is charged with entering in violation of § 212 (a)(19) of the statute, which excludes from entry “[a]ny alien who . . . has procured a visa or other documentation ... by fraud, or by willfully misrepresenting a material fact.” Under this interpretation, an alien who entered by fraud could be deported for having entered with a defective visa or for other documentary irregularities even if he would have been admissible if he had not committed the fraud. The Government concedes that such an interpretation would be inconsistent with the manifest purpose of the section, and the administrative authorities have consistently held that § 241 (f) waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought, provided that the alien was “otherwise admissible at the time of entry.” The Government’s argument in both cases is that to be otherwise admissible at the time of entry the alien must show that he would have been admitted even if he had not lied, and that the aliens in these cases would not have been admitted because of the quota restrictions. It is the argument of the aliens that our adoption of the government thesis would negate the intention of Congress to apply fair humanitarian standards in granting relief from the consequences of their fraud to aliens who are close relatives of United States citizens, and that the statute would have practically no effect if construed as the Government argues, since it requires a considerable stretch of the imagination to conceive of an alien making a material misrepresentation that did not conceal some factor that would make him inadmissible.

The sharp divergence of opinion among the circuit judges in these cases indicates that the meaning of the words “otherwise admissible” is not obvious. An interpretation of these words requires close attention to the language of § 241 (f), to the language of its predecessor, § 7 of the 1957 Act, and to the legislative history of these provisions.

The legislative history begins with the enactment of the Displaced Persons Act of 1948, 62 Stat. 1009. This Act provided for the admission to the United States of thousands of war refugees, many from countries that had fallen behind the Iron Curtain. Some of these refugees misrepresented their nationality or homeland while in Europe to avoid being repatriated to a Communist country. In so doing, however, they fell afoul of § 10 of the Act, which provided that persons making willful misrepresentations for the purpose of gaining admission “shall thereafter not be admissible into the United States.” The plight of these refugees, who were excluded from the United States for misrepresentations that were generally felt to be justifiable, inspired recurring proposals for statutory reform. When the Act was revised and codified in 1952, the House Committee recommended adding a provision to save such refugees from deportation when they had misrepresented their nationality or homeland only to avoid repatriation and persecution. The Conference Committee deleted the provision, but announced its sympathy with the refugees in the following terms:

“It is also the opinion of the conferees that the sections of the bill which provide for the exclusion of aliens who obtained travel documents by fraud or by willfully misrepresenting a material fact, should not serve to exclude or to deport certain bona fide refugees who in fear of being forcibly repatriated to their former homelands misrepresented their place of birth when applying for a visa and such misrepresentation did not have as its basis the desire to evade the quota provisions of the law or an investigation in the place of their former residence. The conferees wish to emphasize that in applying fair humanitarian standards in the administrative adjudication of such, cases, every effort is to be made to prevent the evasion of law by fraud and to protect the interest of the United States.” H. R. Rep. No. 2096, 82d Cong., 2d Sess., p. 128 (1952).

The Immigration and Naturalization Service and the Attorney General did not construe the statute as the Conference Committee had recommended, believing that the explicit statutory language did not allow for an exemption for justifiable misrepresentations. Refugees who misrepresented their place of origin were always found to have concealed a material fact, since the misrepresentation hindered an investigation of their background.

The misrepresentation section was not the only provision of the 1952 legislation that was widely thought to be unnecessarily harsh and restrictive, and in 1957 Congress passed legislation alleviating in many respects the stricter provisions of the earlier legislation. The purpose of the 1957 Act is perfectly clear from its terms, as well as from the relevant House and Senate Committee Reports. The most important provisions of the Act provide for special nonquota status for the adopted children or illegitimate children of immigrant parents, and for orphans who have been or are to be adopted by United States citizens. Other important provisions allow the Attorney General to waive certain grounds for exclusion or deportation, including affliction with tuberculosis or conviction of a crime involving moral turpitude, on behalf of aliens who are near relatives of United States citizens or of aliens lawfully admitted for permanent residence. The intent of the Act is plainly to grant exceptions to the rigorous provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable or harmful aliens out of the country.

In this context it is not surprising that Congress also granted relief to aliens facing exclusion or deportation because they had gained entry through misrepresentation. Section 7 of the 1957 Act provided that:

“The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence; or (B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of birth, identity, or residence in applying for a visa: Provided, That such alien described in clause (B) shall establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien’s fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere. After the effective date of this Act, any alien who is the spouse, parent, or child of a United States citizen or of an alien lawfully admitted for permanent residence and who is excludable because (1) he seeks, has sought to procure, or has procured, a visa or other documentation, or entry into the United States, by fraud or misrepresentation, or (2) he admits the commission of perjury in connection therewith, shall hereafter be granted a visa and admitted to the United States for permanent residence, if otherwise admissible, if the Attorney General in his discretion has consented to the alien’s applying or reapplying for a visa and for admission to the United States.”

This section waived deportation under certain circumstances for two classes of aliens who had entered by fraud or misrepresentation. First, an alien who was “the spouse, parent, or a child of a United States citizen . . .” was saved from deportation for his fraud if he was “otherwise admissible at the time of entry.” Second, an alien who entered during the postwar period and misrepresented his nationality, place of birth, identity, or residence was saved from deportation if he was “otherwise admissible at the time of entry” and if he could

“establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien’s fear of persecution because of race, religion, or political opinion if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere.”

This language would be meaningless if an alien who committed fraud for the purpose of evading quota restrictions would be deportable as not “otherwise admissible at the time of entry.” Congress must have felt that aliens who evaded quota restrictions by fraud would be “otherwise admissible at the time of entry” or it would not have found it necessary to provide further that, in the case of an alien not possessing a close familial relationship to a United States citizen or lawful permanent. resident, the fraud must not be for the purpose of evading quota restrictions.

This conclusion is reinforced by the fact that Congress further specified that the aliens who were not close relatives of United States citizens must establish that their fraud was not committed for the purpose of evading an investigation. Fraud for the purpose of evading an investigation, if forgiven by the statute, would clearly leave the alien “otherwise admissible” if there were no other disqualifying factor. Elementary principles of statutory construction lead to the conclusion that Congress meant to specify two specific types of fraud that would leave an alien “otherwise admissible” but that would nonetheless bar relief to those aliens who could not claim close relationship with a United States citizen or alien lawfully admitted for permanent residence.

The present § 241 (f) is essentially a re-enactment of § 7 of the 1957 Act. The legislative history leaves no doubt that no substantive change in the section was intended. The provision dealing with aliens who had entered the United States between 1945 and 1954, and had misrepresented their nationality for fear of persecution or repatriation, was omitted because it had accomplished its purpose; the rest of the section was retained intact. It could hardly be argued that Congress intended to change the construction of the statute by this codification.

The intent of § 7 of the 1957 Act not to require that aliens who are close relatives of United States citizens have complied with quota restrictions to escape deportation for their fraud is clear from its language, and there is nothing in the legislative history to suggest that Congress had in mind a contrary result. The only specific reference to the part of § 7 that deals with close relatives of United States citizens or residents is in the House Committee Report, and it says only that most of the persons eligible for relief would be

“Mexican nationals, who, during the time when border-control operations suffered from regrettable laxity, were able to enter the United States, establish a family in this country, and were subsequently found to reside in the United States illegally.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 11.

Without doubt most of the aliens who had obtained entry into the United States by illegal means were Mexicans, because it has always been far easier to avoid border restrictions when entering from Mexico than when entering from countries that do not have a common land border with the United States. There is nothing in the Committee Report to indicate that relief under the section was intended to be restricted to Mexicans, however. Neither does it follow that, because Mexicans are not subject to quota restrictions, therefore nationals of countries that do have a quota must be within the quota to obtain relief.

The construction of the statute that we adopt in these cases is further reinforced when the section is regarded in the context of the 1957 Act. The fundamental purpose of this legislation was to unite families. Refugees from Communist lands were also benefited, but the Act principally granted relief to persons who would be temporarily or permanently separated from their nearest relatives if the strict requirements of the Immigration and Nationality Act, including the national quotas, were not relaxed for them. It was wholly consistent with this purpose for Congress to provide that immigrants who gained admission by misrepresentation, perhaps many years ago, should not be deported because their countries’ quotas were oversubscribed when they entered if the effect of deportation would be to separate families composed in part of American citizens or lawful permanent residents.

Even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien. As this Court has held, even where a punitive section is being construed:

“We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U. S. 388. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.” Fong Haw Tan v. Phelan, 333 U. S. 6, 10.

See also Barber v. Gonzales, 347 U. S. 637, 642-643. The 1957 Act was not a punitive statute, and § 7 of that Act, now codified as § 241 (f), in particular was designed to accomplish a humanitarian result. We conclude that to give meaning to the statute in the light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens, the conflict between the circuits must be resolved in favor of the aliens, and that the Errico decision must be affirmed and the Scott decision reversed.

It is so ordered.

Mr. Justice Stewart,

with whom Mr. Justice Harlan and Mr. Justice White join,

dissenting.

The facts in one of these cases (No. 91) vividly illustrate the effect of the Court’s interpretation of § 241 (f) of the Immigration and Nationality Act. The petitioner, a resident of Jamaica, paid for a sham marriage with an American citizen. A ceremony was held, but the petitioner and her “husband” parted immediately and have not seen each other since. However, the pretended marriage served its purpose; the petitioner was admitted into this country as a nonquota immigrant upon her false representation that she was the wife of a United States citizen. After this fraudulent entry she managed to become the actual parent of a United States citizen by conceiving and bearing an illegitimate child here.

The Court holds that this unsavory series of events gives the petitioner an unqualified right under § 241 (f) to remain in this country ahead of all the honest people waiting in Jamaica and elsewhere to gain lawful entry. I can find no support in the statute for such an odd and inequitable result.

Section 241 (f) provides as follows:

“The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.”

It seems clear to me, for two separate and independently sufficient reasons, that this statute does not operate to bar the deportation of the aliens in the cases now before us. In the first place, § 241 (f) has application only to the deportation provisions which are based upon fraudulent entry, and the aliens in these two cases were not ordered to be deported under those provisions. Secondly, even if it were generally applicable, § 241 (f) does not cover the aliens involved in these two cases, because neither of them was “otherwise admissible” at the time of entry.

I.

Section 241 (f) by its terms neutralizes only those “provisions . . . relating to the deportation of aliens within the United States on the ground that they . . . sought to procure . . . entry into the United States by fraud or misrepresentation . . . .” Although the aliens in these two cases could have been deported under those “provisions,” the deportation proceedings in both cases were in fact brought on grounds unrelated to their procurement of fraudulent visas. Both aliens were ordered to be deported, not because of their fraud, but because they were not properly within their countries’ quotas.

The plain terms of § 241 (f), therefore, do not even potentially apply to these aliens. To hold that § 241 (f) is relevant to these cases is tantamount to holding that it is applicable to bar deportation based on any ground at all so long as the alien lied about that ground at the time of his unlawful entry. I think nothing could be further from the statutory language or the congressional purpose,

II.

But even if § 241 (f) were generally applicable, these aliens could not claim its benefits because they were not within their respective national immigration quotas and therefore were not “otherwise admissible” at the time they entered the United States. That is the clear import of the statutory qualification, if its words are to be taken at their face value. That, too, has been the uniform and consistent administrative construction of the statute. See Matter of D’O—, 8 I. & N. Dec. 215 (1958); Matter of Slade, 10 I. & N. Dec. 128 (1962).

To except quota requirements of admissibility from the statutory qualification of “otherwise admissible” would undercut the elaborate quota system which was for years at the heart of the immigration laws. Yet the legislative history of the predecessor of § 241 (f), § 7 of the 1957 Act, makes clear that the limited relief given by the statute was to have no effect at all on the quota system.

Moreover, the consistent use of the same qualifying phrase, “otherwise admissible” in other sections of the Immigration and Nationality Act makes clear that, as a term of art, it includes quota admissibility. The term typically follows a definition of grounds for admissibility or for exceptions to deportation, to insure that all the other relevant requirements of the Act are imposed upon the alien.

Thus the plain meaning of the “otherwise admissible” qualification, as well as legislative policy and legislative history, all indicate that the term serves the same basic function in § 241 (f) as in other sections of the Act. Fraud is removed as a ground for deportation of those with the requisite family ties, and “otherwise admissible” insures the integrity of the remainder of the statutory scheme.

The Court justifies its disregard of the plain meaning and consistent administrative construction of § 241 (f) by resort to the spirit of humanitarianism which is said to have moved Congress to enact the statute. No doubt Congress in 1957 was concerned with giving relief to some aliens who had entered this country by illegal means and established families here. But the people who were to benefit from this genuine human concern were those from countries like Mexico, which had no quota restrictions, and those who had misrepresented their national origins in order to avoid repatriation to Iron Curtain countries. There is nothing to indicate that Congress enacted this legislation to allow wholesale evasion of the Immigration and Nationality Act or as a general reward for fraud.

I respectfully dissent.

         75 Stat. 655 (1961), 8 U. S. C. §1251 (f).

       Section 211 (a) (4) of the Immigration and Nationality Act, 66 Stat. 181 (1952), later amended, 79 Stat. 917 (1965), 8 ü. S. C. §1181 (a) (1964 ed., Supp. I). Aliens who were excludable at the time of entry under the law then existing are deportable under § 241 (a)(1), 66 Stat. 204 (1952), as amended, 8 Ü. S. C. § 1251 (a)(1).

       Section 211 (a)(3), 66 Stat. 1,81 (1952), later amended, 79 Stat. 917 (1965), 8 U. S. C. § 1181 (a) (1964 ed., Supp. I).

       66 Stat. 183 (1952), as amended, 8 U. S. C. §1182 (a)(19).

       See Matter of S— , 7 I. & N. Dec. 715 (1958); Matter of Y—, 8 I. & N. Dec. 143 (1959).

       Pub. L. 85-316, 71 Stat. 639 (1957).

       See H. R. Rep. No. 1365, 82d Cong., 2d Sess., p. 128 (1952).

       See Matter of B— and P— , 2 I. & N. Dec. 638 (1947); H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 10 (1957).

       “The legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.” H. R. Rep. No. 1199, 85th Cong., 1st Sess., p. 7 (1957). See also S. Rep. No. 1057, 85th Cong., 1st Sess. (1957).

       It is in this context that the legislative history cited in the dissent should be understood. The remarks of Senator Eastland and Congressman Celler quoted in footnote 4 of the dissent in context do not refer to § 7 of the Act but to the provisions of the bill providing for the adoption of alien orphans. Furthermore, Senator Eastland and Congressman Celler did not mean that no exceptions to the quota requirements were intended to be created, because the basic purpose of the bill was to relax the quota system for adopted children and for certain other classes of aliens deemed deserving of relief. They were reassuring their colleagues that no fundamental changes in the quota system were contemplated.

       H. R. Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961). See also 107 Cong. Rec. 19653-19654 (1961) (remarks of Senator Eastland).

       H. R. Rep. No. 1086, 87th Cong., 1st Sess., p. 37 (1961).

       When “Mrs. Scott” made her fraudulent entry in 1958, Jamaica had an annual quota of 100 immigrants and a waiting list of 21,759 hopeful applicants. The corresponding figures for Italy in 1959, the year of Mr. Errico’s entry, were 5,666 and 162,612.

       The Court states that the Government “concedes” and that “administrative authorities have consistently held that § 241 (f) waives any deportation charge that results directly from the misrepresentation.” Ante, at 217. But this concession and administrative practice fall far short of covering these cases. For here the grounds for deportation did not “[result] directly from the misrepresentation.” They antedated and were the reason for the misrepresentation. The “administrative authorities” cited by the Court turned upon this distinction. In Matter of Y— , 8 I. & N. Dec. 143 (1959), for example, the Board of Immigration Appeals broadened § 241 (f) enough to cover fraud-related administrative procedural defects in the alien’s entry. It is this construction of § 241 (f) which the Government concedes, not the Court’s construction which broadens the statute to excuse all disqualifications for entry.

       Thus, a Communist who had lied to the immigration authorities about his party membership at the time of entry could invoke § 241 (f) and remain in this country, while one who had told the truth, but was admitted by virtue of an administrative error, could be deported. See §212 (a) (28), Immigration and Nationality Act.

       Senator Eastland, Chairman of the Committee which sponsored the 1957 amendments to the Immigration Act, stated, “the bill does not modify the national origins quota provisions.” 103 Cong. Rec. 15487 (Aug. 21, 1957). See also 103 Cong. Rec. 16300 (Aug. 28, 1957) (remarks of Congressman Celler), “[The bill] makes no changes — no changes whatsoever, in the controversial issue of the national origins quota system.”
      Pub. L. 89-236, 79 Stat. 911, made substantial changes in the quota system. But that statute, passed in 1965, hardly indicates a congressional intent in 1957 or in 1961 (when the present statute was revised) to abandon quota requirements.

       See, e. g., §§ 211 (a) and (b); The War Brides Act, 59 Stat. 659.

       Under § 7 of the 1957 Act certain aliens had to establish both that they were “otherwise admissible” and that they had not lied to evade quota restrictions. The Court reasons from this that quota restrictions are not embodied in the “otherwise admissible” qualification. But this reasoning is inconsistent with the Court’s conclusion concerning the general applicability of §241 (f), discussed in Part I of this dissent.
      Section 7 of the earlier Act provided as follows:
      “The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entty into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who . . . .” (Emphasis supplied.)
      If the present meaning of “otherwise admissible” is to be determined by the 1957 Act, so then must other parts of the statute be similarly determined. Section 241 (f) begins with words almost identical to those quoted above. But the second ground of applicability — to “aliens who were not of the nationality specified in their visas” — is omitted. Thus, lies about nationality were not forgiven by the first part of the 1957 Act and are not, by the Court’s reasoning, excused by § 241 (f), the successor statute. And since there is nothing to distinguish lies about nationality that avoid quota restrictions from other lies with the same effect, the reasoning that leads to the Court’s conclusion that the aliens were “otherwise admissible” leads also to the conclusion that § 241 (f) is not applicable at all in these cases.


source: Caselaw Access Project

author: Mr. Justice Black Mr. Justice Douglas, Mr. Justice Fortas,

license: Public Domain

text:
    FORTSON, SECRETARY OF STATE OF GEORGIA v. MORRIS et al.
    No. 800.
    Argued December 5, 1966.
    Decided December 12, 1966.

      Harold N. Hill, Jr., Assistant Attorney General of Georgia, argued the cause for appellant. With him on the briefs were Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Coy R. Johnson, Assistant Attorney General, and Gerald H. Cohen and Alexander Cocalis, Deputy Assistant Attorneys General.

      Charles Morgan, Jr., argued the cause for appellees Morris et al. With him on the briefs were Morris Brown
      and Melvin L. Wulf. Emmet J. Bondurant II argued the cause for appellees Justice et al. With him on the briefs were Francis Shackelford and Randolph W. Thrower.

   Mr. Justice Black

delivered the opinion of the Court.

Since 1824 a provision of the Constitution of the State of Georgia, now Art. V, § I, ¶ IV, has provided that its Governor shall be selected (1) by a majority of votes cast in a general election, and (2) if no candidate receives a majority of votes at such election, then a majority of the members of the Georgia General Assembly shall elect the Governor “from the two persons having the highest number of votes . ...” At the State's general election, held Tuesday, November 8, 1966, no single candidate received a majority of the votes cast. A Georgia three-judge federal district court has in this case enjoined the State Assembly from electing one of the two highest candidates as Governor on the ground that this method of election, required by Article V of the Georgia Constitution, would deny Georgia voters equal protection of the laws in violation of the Fourteenth Amendment. We uphold the constitutionality of Article V of the State Constitution, for so long as this provision is applied as it is written, we perceive no conflict with the Equal Protection Clause. We reverse the District Court’s judgment.

The District Court erroneously relied on Gray v. Sanders, 372 U. S. 368, to strike down Article V of the State’s Constitution. The Gray case held that it had been demonstrated that Georgia voters were denied equal protection of the laws by the operation of a county-unit system under which state officials were elected by a majority of counties voting as units instead of by a majority of individual voters. The result was that the number of votes of persons living in large counties was given no more weight in electing state officers than was given to a far fewer number of votes of persons residing in small counties. ' This discrimination against large county voters was held to deny them the equal protection of the laws. That case, as was emphasized, had to do with the equal right of “all who participate in the election,” 372 U. S., at 379, to vote and have their votes counted without impairment or dilution. But as the Court said, 372 U. S., at 378, the case was “only a voting case.” Not a word in the Court’s opinion indicated that it was intended to compel a State to elect its governors or any other state officers or agents through elections of the people rather than through selections by appointment or elections by the State Assembly. It is wrongly cited as having either expressly or impliedly decided that a State cannot, if it wishes, permit its legislative body to elect its Governor.

The language of Article V of the State Constitution struck down by the District Court has been a part of Georgia’s State Constitution since 1824 and was readopted by the people in 1945. It set up two ways to select the Governor. The first, and preferred one, was election by a majority of the people; the second, and alternative one, was election by the State Assembly if any one candidate failed to receive a majority of the popular vote. Under the second method, in the legislative election the votes of the people were not to be disregarded but the State Assembly was to consider them as, in effect, nominating votes and to limit itself to choosing between the two persons on whom the people had bestowed the highest number of votes. There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor. A method which would be valid if initially employed is equally valid when employed as an alternative. It would be surprising to conclude that, after a State has already held two primaries and one general election to try to elect by a majority, the United States Constitution compels it to continue to hold elections in a futile effort to obtain a majority for some particular candidate. Statewide elections cost time and money and it is not strange that Georgia’s people decided to avoid repeated elections. The method they chose for this purpose was not unique, but was well known and frequently utilized before and since the Revolutionary War. Georgia Governors were selected by the State Legislature, not the people, until 1824. At that time a new constitution provided for popular election, but with the provision that upon the failure of any one candidate to receive a majority, the General Assembly should elect.

Two States, Mississippi and Vermont, that provide for majority voting also provide for state legislative election of their governors in case of no majority in the general election. Thirty-eight States of the Union which today provide for election of their governors by a plurality also provide that in case of a tie vote the State Legislatures shall elect.

It thus turns out that Georgia, clearly acting within its rights as a State, has decided that, any one candidate failing to obtain a majority in a general election, its General Assembly will elect its Governor. Its clear choice has remained in its constitution for 142 years. The District Court below treated Article V of the Georgia Constitution as the valid law of the State except as it thought itself compelled to strike it down because of Gray v. Sanders, supra. The Gray case, however, did no more than to require the State to eliminate the county-unit machinery from its election system. The State did this in an election that resulted in the election of no candidate. Its duty now, under Article V of its Constitution, is to proceed to have the General Assembly elect its Governor from the two highest candidates in the election, unless, as some of the parties contend, the entire legislative body is incapable of performing its responsibility of electing a Governor because it is malapportioned. But this is not correct. In Toombs v. Fortson, 384 U. S. 210, affirming 241 F. Supp. 65, we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968. Consequently the Georgia Assembly is not disqualified to elect a Governor as required by Article V of the State’s Constitution. Neither is it disqualified by the fact that its Democratic members had obligated themselves to support the Democratic nominee in the general election on November 8, 1966. That election is over, and with it terminated any promises by the Democratic legislators to support the Democratic nominee.

Article V of Georgia's Constitution provides a method for selecting the Governor which is as old as the Nation itself. Georgia does not violate the Equal Protection Clause by following this article as it was written.

Reversed.

Mr. Justice Douglas,

with whom The Chief Justice, Mr. Justice Brennan, and Mr. Justice Fortas concur,

dissenting.

This is an appeal from a decision of a three-judge district court declaring unconstitutional and enjoining the enforcement of Article V, Section I, Paragraph IV, of the Georgia Constitution which authorizes the election of the Governor of Georgia by the General Assembly when no candidate has received a majority of the total votes cast in the general election.

We are told that in the November 8, 1966, general election for Governor, there were 955,770 votes cast as follows:

Howard H. Callaway. 449,894 votes or 47.07%
Lester G. Maddox. 448,044 votes or 46.88%
Ellis G. Amall. 57,832 votes or 6.05%

The Georgia Election Code provides that “[n]o candidate shall be nominated for public office in any primary or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.” Ga. Code Ann. § 34 — 1514 (Supp. 1965). That law goes on to provide that where no candidate “receives a majority of the votes cast, a runoff primary or election shall be held, between the two candidates receiving the highest number of votes,” and the candidate who receives “a majority of the votes cast in such runoff” shall be declared the winner. The Attorney General of Georgia rendered an opinion on October 21, 1966, that the provisions of § 34 — 1514 were in conflict with the provisions of the Georgia Constitution and that the latter controlled in the event no candidate for Governor received a majority in the general election.

This action for a declaratory judgment was brought by citizens of Georgia residing in counties throughout the State who voted in the November 8, 1966, general election for Governor. They ask for the benefit of a runoff election between the two candidates who received the highest number of votes as provided in § 34 — 1514 or a special election pursuant to the Georgia Election Code. The District Court held the provision of the Georgia Constitution which placed the election of the Governor in the General Assembly unconstitutional and void. 262 F. Supp. 93. It issued a stay for a period of 10 days so as to enable the appellant to seek an additional stay here and retained jurisdiction for such other and further proceedings as might be deemed applicable and just. The case is here by appeal which we noted, and we expedited the hearing because of the urgency of the issue presented. Post, p. 965.

The Court misstates the question we must decide. It is not whether Georgia may select a Governor through a legislative election. It is whether the legislature may make the final choice when the election has been entrusted to the people and no candidate has received a majority of the votes. In other words, the legislative choice is only a part of the popular election machinery. The 1824 amendment to the 1798 Constitution of Georgia, which gave the legislature power to elect a governor, treated that stage as only one of two in the general election. The first stage, then as now, was an election open to “the persons qualified to vote for members of the general assembly.” Ga. Const. 1798, Art. II, § 2, as amended, 1824.

It is said that the general election is over and that a new, and different, alternative procedure is now about to be used. But that is belied by the realities. The primary election selected the party candidates, the choices of the two parties are still in balance, and the legislative choice is restricted to those two candidates. The election, commencing with the primary, will indeed not be finally completed until the winner has taken the oath of office. Up to then the vacancy which occasioned the election has not been filled.

Our starting point is what we said in Gray v. Sanders, 372 U. S. 368, 379-380:

“Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote— whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.”

It is argued with earnestness that if the electoral college can be used to select a President, a legislature can be used to select a governor. It is said that there is no more a violation of the “one person, one vote” principle in the one than in the other. But the Twelfth Amendment creates the exception in case of a President. There is no like exception in the choice of a governor.

“The only weighting of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. . . . But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. . . .
“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing— one person, one vote.” Gray v. Sanders, supra, at 380-381.

If the legislature is used to determine the outcome of a general election, the votes cast in that election would be weighted, contrary to the principle of “one person, one vote.” All the vices we found inherent in the county unit system in Gray v. Sanders are inherent when the choice is left to the legislature. A legislator when voting for governor has only a single vote. Even if he followed the majority vote of his constituency, he would necessarily disregard the votes of those who voted for the other candidate, whether their votes almost carried the day or were way in the minority. He would not be under a mandate to follow the majority or plurality votes in his constituency, but might cast his single vote on the side of the minority in his district. Even if he voted for the candidate receiving a plurality of votes cast in his district and even if each Senator and Representative followed the same course, a candidate who received a minority of the popular vote might receive a clear majority of the votes cast in the legislature. As stated by the District Court:

“The Georgia election system in the constitutional provision now under consideration permits unequal treatment of the voters within the class of voters selected, and it thus cannot stand. Many arguments may be made, but we need go no further than to point out, as stated, that the candidate receiving the lesser number of votes may be elected by the General Assembly. This would give greater weight to the votes of those citizens who voted for this candidate and necessarily dilute the votes of those citizens who cast their ballots for the candidate receiving the greater number of votes. The will of the greater number may be ignored.” 262 F. Supp., at 95.

I have said enough to indicate why the substitution of the Georgia Legislature for a runoff vote is an unconstitutional weighting of votes, having all the vices of the county unit system that we invalidated in Gray v. Sanders.

What is approved today can, moreover, be the instrument to perpetuate a “one party” system in like derogation of the principle of “one person, one vote.” The pledge that every Democratic member of the Georgia Legislature took provides in part: “I further pledge myself to support at the General Election of November 8, 1966, all candidates nominated by the Democratic Party of the State of Georgia.” That election has not been completed. We are, as I have said, in the second stage of it. The Democrats control 183 seats in a 205-member House and 46 seats in a 54-member Senate. We would be less than naive to believe that the momentum of that oath has now been dissipated and that the predominantly Democratic legislature has now become neutral.

The fact that this constitutional provision allowing the legislature to choose the Governor was adopted by the people of Georgia is “without federal constitutional significance, if the scheme adopted fails to satisfy the basic requirements of the Equal Protection Clause, as delineated in our opinion in Reynolds v. Sims.” See Lucas v. Colorado General Assembly, 377 U. S. 713, 737. We dealt there with an apportionment plan that had been adopted by a popular referendum. We repeat what we said: “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.’’ Id., 736-737.

I would affirm the judgment of the three-judge court and remand the cause for the fashioning of an appropriate decree for a runoff election in which the people’s choice will be determined.

Mr. Justice Fortas,

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

dissenting.

I join the opinion of my Brother Douglas, but I add the following:

The specific question before us is the validity of the Georgia constitutional provision which, after vesting in the people “full and complete power to elect a Governor,” provides that if no candidate receives a majority, the legislature shall select the winner from the two candidates receiving the highest popular vote. The legislature may select the candidate who received fewer popular votes than his rival. In my opinion, this scheme is forbidden by the Equal Protection Clause of the Fourteenth Amendment as construed by this Court.

1. Gray v. Sanders, 372 U. S. 368 (1963), related to Georgia primary elections to nominate candidates for statewide office, including Governor. It held that where the vote cast by each citizen does not have full and equal effect as a result of operation of the county unit system, the Equal Protection Clause is violated. If the Constitution of Georgia incorporated the county unit system as part of the mechanics for election of Governor, I assume there would be no doubt that Gray v. Sanders would invalidate the provision. Unless the Court is overruling Gray v. Sanders, it presumably would not validate a Georgia constitutional provision which said that if a majority of the votes are not cast for one candidate, they will be recomputed on a county unit basis which is not proportionate to the voting population, and the result of that recomputation would determine the winner. It is no less a denial of equal protection of the laws for the result of an election to be determined, not by the voters, but by the legislature on a basis which is not related to the votes cast. No less than the county unit system, this means that the vote cast by a citizen is subject to nullification by the legislature. The integrity of the vote is undermined and destroyed by any scheme which can result in the selection of a person as Governor who receives the lesser number of popular votes. If the voting right is to mean anything, it certainly must be protected against the possibility that victory will go to the loser.

2. It distorts reality to say, as the majority here do, that this election is to be scrubbed and ignored, and to proceed as if we were dealing with a situation in which Georgia’s Constitution merely provided for the selection of a Governor by the legislature. That is not the case. If it were the intent of the Constitution to scrub the popular election and to cause selection by the legislature as an independent process, the legislature would not be bound to select from the two who received at the polls the highest number of votes. The legislature would be given free choice. As my Brother Douglas' opinion shows, the Constitution attempts something quite different. It purports to give the legislature power to complete the process begun at the polls — to cast aside the vote of the electorate and award the office to the winner or the loser of the popular election, as it may see fit. The analogy to Gray v. Sanders is clear. This is just as if, for example, the voters expressed their preferences at the polls, and then the winner was selected not on the basis of receiving most votes, but on the basis of selection by officials of the counties concerned.

3. The Georgia Legislature is concededly malappor-tioned, and is under a federal court order to reapportion itself. Toombs v. Fortson, 384 U. S. 210 (1966), affirming 241 F. Supp. 65 (D. C. N. D. Ga. 1965). See also Fortson v. Toombs, 379 U. S. 621 (1965). A majority of the legislators in Georgia’s legislature may represent a minority of the voters. But the Court today concludes that despite the fact that it has branded the legislature as apportioned in violation of the Constitution of the United States, it may nevertheless select the Governor. The Court states as its reason for disregarding this that “In Toombs v. Fortson ... we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968.” This is indeed a weak reed for so monumental a conclusion. The use of a malapportioned legislature to select a Governor is to perpetuate the electoral vices which this Court decreed that the Equal Protection Clause of the Fourteenth Amendment forbade a State to incorporate in its election procedures. Reynolds v. Sims, 377 U. S. 533 (1964); Gray v. Sanders, supra. We have declined to deprive a malapportioned legislature of its de facto status as a legislature. But not until today has this Court allowed a malapportioned legislature to be the device for doing indirectly what a State may not do directly. If this Court had foreseen that events would place the Georgia Legislature in a position to override the vote of a plurality of the voters and to select as Governor of the State the loser at the polls, I expect that it would have included this power as one of the “exceptions,” forbidden to this legislature which, this Court has held, functions only by judicial sufferance despite its constitutional infirmity. To a reader of Gray v. Sanders, Fortson v. Toombs, and Toombs v. Fortson, it must seem inconceivable that the Court would permit this malapportioned legislature to select Georgia’s Governor in these circumstances. Indeed, the irony of the matter is that a three-judge federal court held that the Georgia Legislature was so malapportioned that it could not properly submit to the voters a new Constitution, adopted by both houses of the Georgia Legislature, which would have abolished the provisions for legislative selection of a Governor and have substituted a runoff or special election. See Fortson v. Toombs, supra. On appeal, this Court, per curiam, declined to rule that the District Court’s decree was unlawful, but because it was represented that the decree might be moot, the Court remanded for reconsideration in light of the circumstances which allegedly made the decree no longer pertinent. Fortson, supra. But now the Court holds that this same unreformed legislature is not so malapportioned that it cannot itself select the Governor by its direct action! I confess total inability to understand how the two rulings can be reconciled.

4. In denying the applicability of Gray v. Sanders, the Court says that it was “only a voting case” and that it has nothing to do with a State’s decision that the voters will be ousted from their functions, the votes cast by them nullified, and the legislature authorized to select the candidate that most of the electorate repudiated. I respectfully submit that this, too, is “a voting case.” It is no less a voting case because it deals with a state mechanism for total disregard of the principle of one man, one vote. It is no less a voting case because it deals with the election of the Governor rather than his nomination as in Gray v. Sanders. I should assume — diffidently in view of today’s startling result — that this Court would not rule that the Federal Constitution would tolerate a state constitutional provision that would enable the Governor to appoint the legislature — or to appoint any legislators for election districts if no candidate received a majority of the votes — or two-thirds — or three-fourths. But there is no difference in principle between this and the result sanctioned today. If a State can validly provide that the result at the polls can be disregarded and the outcome removed from democratic processes where no candidate for Governor receives a majority, there is no reason why the same rule cannot be applied to legislators. Moreover, the Court today announces in an offhand manner, as a side effect of today’s decision, without adequate argument or consideration, that a State may today, as some States did long ago, provide that its Governor shall be selected by its legislature in total disregard of the voters. I do not believe that the issue is so easy. Much water has gone under the bridge since the late 1700’s and the early 1800’s. Our understanding and conception of the rights guaranteed to the people by the “stately admonitions” of the Fourteenth Amendment have deepened, and have resulted in a series of decisions, enriching the quality of our democracy, which certainly do not codify State’s rights, governmental theories or conceptions of human liberties as they existed in 1824, the date when Georgia adopted its present system of choosing a Governor. I have no doubt, for example, that in the early days of the Nation many of the state legislatures were malapportioned. See Reynolds v. Sims, supra, at 573, n. 53, and 602-607 (dissent). But this did not enshrine that condition forever beyond the reach of constitutional prohibition. Certainly, the antiquity of the practice did not cause this Court to refrain from invalidating malapportionment under the Equal Protection Clause. As Mr. Justice Holmes said long ago,

“[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Missouri v. Holland, 252 U. S. 416, 433 (1920).

5. I do not believe that this Court is the sole custodian of the Constitution, or of the democratic liberties of the people. The power and the responsibility rest also with the States, the people, and with lower courts, including the courageous District Court that in the present case insisted upon following this Court’s decision in Gray v. Sanders. But if the people of Georgia — or Maine or California or New York, for that matter — should adopt a constitutional amendment to provide for election of their Governor by the legislature — or for selection of the upper house of their legislature by their Governor, for example — I do not believe that the constitutionality of these measures could be cavalierly assumed. Perhaps this Court’s voting rights cases could not so easily be nullified. Their meaning and thrust are perhaps deeper than the mechanics of the tally. They are, one may hope, not merely much ado about form. They represent, one has been led to believe, an acknowledgment that the republican form of government guaranteed by the Constitution, read in light of the General Welfare Clause, the guaranties of equal protection of the laws and the privileges and immunities of citizens of the United States, requires something more than an adherence to form. This Court’s apportionment and voting rights decisions soundly reflect a deepening conception, in keeping with the development of our social, ethical, and religious understanding, of the meaning of our great constitutional guaranties. As such, they have reinvigorated our- national political life at its roots so that it may continue its growth to realization of the full stature of our constitutional ideal. Today’s decision is a startling reversal; a belittling, I say with all respect, of our Constitution’s dynamic provisions with respect to the basic instrument of democracy — the vote.

6. The Court brushes off Gray v. Sanders by saying that it has to do only with the “equal right” of all voters “to vote and have their votes counted without impairment or dilution.” That is so. But that is precisely the issue in the present case. We have not heretofore been so beguiled by changes in the scenery that we have lost sight of principle. See Terry v. Adams, 345 U. S. 461, esp. 465, n. 1 (1953); Smith v. Allwright, 321 U. S. 649, 661 (1944). See also Wesberry v. Sanders, 376 U. S. 1, 17 (1964). Here, too, we are dealing at least with the “impairment” of the vote — indeed, with the obliteration of its effect. It is not merely the casting of the vote or its mechanical counting that is protected by the Constitution. It is the function — the office — the effect given to the vote, that is protected.

A vote is not an object of art. It is the sacred and most important instrument of democracy and of freedom. In simple terms, the vote is meaningless — it no longer serves the purpose of the democratic society — unless it, taken in the aggregate with the votes of other citizens, results in effecting the will of those citizens provided that they are more numerous than those of differing views. That is the meaning and effect of the great constitutional decisions of this Court.

In short, we must be vigilant to see that our Constitution protects not just the right to cast a vote, but the right to have a vote fully serve its purpose. If the vote cast by all of those who favor a particular candidate exceeds the number cast in favor of a rival, the result is constitutionally protected as a matter of equal protection of the laws from nullification except by the voters themselves. The candidate receiving more votes than any other must receive the office unless he is disqualified on some constitutionally permissible basis or unless, in a runoff or some other type of election, the people properly and regularly, by their votes, decide differently. “The right to vote is too important in our free society to be stripped of judicial protection” by any other interpretation of our Constitution.

In essence, Gray v. Sanders held that the Equal Protection Clause is violated when persons are elected to statewide office on a basis other than their receiving more votes than their rivals. In my opinion, this principle is exactly applicable here.

It is with the greatest regret that I conclude that today’s decision reflects a retreat from constitutional principles so soundly and so proudly developed to apply the Constitution’s magnificent admonitions to the deepening moral and human principles of our time. I would affirm the District Court.

       Article V, § I, ¶ IV (Ga. Code Ann. § 2-3004). “How returns published. — The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.”

       Miss. Const., Art. 5, §§140, 141; Vt. Const., c. II, §39.

       This is by statutory provision in North Carolina and by constitutional provision in Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

       The Georgia Constitution, Art. V, § I,- ¶ IV, provides:
      "The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.”

       Ga. Code Ann. §34-1515 (Supp. 1965) provides:
      “Whenever any primary or election shall fail to fill a particular nomination or office and such failure cannot be cured by a runoff primary or election . . . then the authority, with whom the candidates for such nomination or office filed their notice of candidacy, shall thereupon call a special primary or election to fill such position.”

       Georgia’s state auditor is chosen by the legislature. Ga. Code Ann. §40-1801.

       Originally Georgia left the selection of Governor to the legislature, the House selecting three candidates and the Senate choosing one of the three by majority vote. Ga. Const. 1789, Art. II, § 2.

       “We think the analogies to the electoral college, to districting and redistricting, and to other phases of the problems of representation in state or federal legislatures or conventions are inapposite. The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality, but implied nothing about the use of an analogous system by a State in a statewide election. No such specific accommodation of the latter was ever undertaken, and therefore no validation of its numerical inequality ensued.” Gray v. Sanders, 372 U. S. 368, 378.

       In Gray v. Sanders, supra, in speaking of this same vice in the county unit system we said:
      “. . .if a candidate won 6,000 of 10,000 votes in a particular county, he would get the entire unit vote, the 4,000 other votes for a different candidate being worth nothing and being counted only for the purpose of being discarded.” 372 U. S., at 381, n. 12.

       This figure does not take into account a runoff election held on November 22, 1966, to fill a House seat.

        Thompson v. Talmadge, 201 Ga. 867, 880, 41 S. E. 2d 883, 895 (1947). Thompson invalidated selection of a Governor by the legislature when the candidate who received a majority of the votes cast died before taking office.

       This would resemble the presidential electoral college system. Gray v. Sanders expressly states that while this system is beyond judicial reach because it is specifically incorporated in the Federal Constitution, it does not indicate the constitutionality of analogous state schemes. 372 U. S., at 378. See also Reynolds v. Sims, 377 U. S. 533, 572-577 (1964).

       Learned Hand, Spirit of Liberty 163 (1960).

       See, e. g., Baker v. Carr, 369 U. S. 186 (1962); Gray v. Sanders, supra; Wesberry v. Sanders, 376 U. S. 1 (1964); Reynolds v. Sims, 377 U. S. 533 (1964); Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966).

       Only last Term, the Court held in Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966), that the right to vote in state elections cannot be burdened or conditioned by a poll tax. We observed:
      "We agree, of course, with Mr. Justice Holmes that the Due Process Clause of the Fourteenth Amendment ‘does not enact Mr. Herbert Spencer’s Social Statics’ (Lochner v. New York, 198 U. S. 45, 75). Likewise, the Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. See Malloy v. Hogan, 378 U. S. 1, 5-6. Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” 383 U. S., at 669.
      See also the classic statement by Mr. Justice Brandéis, in his dissent in Olmstead v. United States, 277 U. S. 438, 472 (1928):
      " ‘We must never forget,’ said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, ‘that it is a constitution we are expounding.’ Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instalment, over objects of which the Fathers could not have dreamed. . . . We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modem conditions by regulations which ‘a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.’ Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387; Buck v. Bell, 274 U. S. 200. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.”
      See also Weems v. United States, 217 U. S. 349, 373 (1910).

        Wesberry v. Sanders, supra, at 7.


author: Mr. Justice Clark

text:
    FIRST NATIONAL BANK OF LOGAN v. WALKER BANK & TRUST CO.
    No. 51.

    Argued November 7-8, 1966.
    Decided December 12, 1966.

      Theodore S. Perry argued the cause and filed briefs for petitioner in No. 51. John J. Wilson argued the cause for petitioner in No. 73. With him on the briefs was Charles J. Steele. Richard A. Posner argued the cause for petitioner in No. 88. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Douglas, David L. Rose and Kathryn H. Baldwin.

      Joseph S. Jones argued the cause and filed a brief for respondent in No. 51. James F. Bell argued the cause and filed a brief for respondent in Nos. 73 and 88.

      Robert Y. Button, Attorney General, and Kenneth C. Patty, Assistant Attorney General, filed a brief for the Commonwealth of Virginia, as amicus curiae, urging affirmance in all cases. Henry T. Wickham filed a brief for the Virginia Bankers Association, as amicus curiae, urging affirmance in Nos. 73 and 88.

      Together with No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon, Comptroller of the Currency v. Commercial Security Bank, on certiorari to the United States Court of Appeals for the District of Columbia Circuit.

   Mr. Justice Clark

delivered the opinion of the Court.

These cases involve the construction of those portions of the National Bank Act, 44 Stat. 1228, 12 U. S. C. § 36 (c), which authorize a national banking association, with the approval of the Comptroller of the Currency, to establish and operate new branches within the limits of the municipality in which the bank is located, if such operation is “at the time expressly authorized to State banks by the law of the State in question.” Two national banks with their main banking houses in Logan and Ogden, Utah, respectively, seek to open branches in those municipalities. The Utah statute prohibits Utah banks, with certain exceptions not here relevant, from establishing branches except by taking over an existing bank which has been in operation for not less than five years. Utah Code Ann., Tit. 7, c. 3, § 6 (1965 Supp.). In No. 51, First National Bank of Logan v. Walker Bank & Trust Co., the petitioner seeks to establish a new branch in Logan, where its principal banking house is located, without taking over an established bank. The District Court approved its doing so but the Court of Appeals reversed. 352 F. 2d 90 (C. A. 10th Cir.), sub nom. Walker Bank & Trust Co. v. Saxon. In No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon v. Commercial Security Bank, First Security seeks to establish a new branch in Ogden, in which its home office is situated, without taking over an established bank. The District Court held that state law must be complied with, 236 F. Supp. 457, and the Court of Appeals affirmed in a judgment, without opinion, citing Walker Bank & Trust Co., supra. In view of a conflict between these holdings and the decision in First National Bank of Smithfield v. Saxon, 352 F. 2d 267 (C. A. 4th Cir.), we granted certiorari, and consolidated the three cases for argument. 384 U. S. 925. We affirm the judgments.

1. The Facts.

In No. 51, the petitioner maintains its principal banking house in Logan, Utah, which is a second class city under Utah law (Utah Code Ann., Tit. 10, c. 1, § 1 (1953, as amended)), and is therefore subject to § 7-3-6 of the Utah Code, supra. It applied to the Comptroller of the Currency for a certificate to establish an “inside” branch office in Logan. At the time of the application there were no other banks with their main banking offices in Logan. However, there were two branches of banks whose home offices were situated outside of Logan, one of which belonged to respondent, Walker Bank & Trust Co., whose home office was located in Salt Lake City. After a hearing, the Comptroller ordered the certificate issued. The respondent subsequently filed this suit seeking a declaratory judgment and injunctive relief against the Comptroller and First National claiming the action of the Comptroller to be void since the proposed branch was not taking over an established bank in Logan, as required by Utah, law. The District Court dismissed the complaint. It found “express authority” under Utah law for state banks to establish branch offices in Logan, relying on the general authority of the statute and holding that the subsequent conditions, such as the acquisition of another bank, did not “change the ‘express authority’ into a lack of authority on the part of State banks or a lack of a statutory expression of such authority, and [did] not add to the Federal statute a requirement that compliance be made by National banks with all State conditions.” 234 F. Supp. 74, 78, n. 8. The Court of Appeals reversed, holding that the Congress in enacting § 36 (c)(1) acceded to state law and created “a competitive equality between state and national banks.” Finding that the trial court’s interpretation was to the contrary, it declared “the proper approach is for the Comptroller to look at all the State law on branch banking not just part of it.” 352 F. 2d 90, 94.

In Nos. 73 and 88, the First Security Bank of Utah, a national bank, applied for a certificate from the Comptroller to establish a branch bank in Ogden, where it maintained its principal banking house. Its proposal was to open a new branch and not to take over an existing bank in Ogden. Under Utah law, Ogden is also a second class city and the “take over” provision of § 7-3-6, supra, was therefore applicable. Two other banks have their main offices in Ogden. After the Comptroller approved the issuance of the certificate, respondent filed suit in the District Court of the United States for the District of Columbia asking for injunctive and other relief. The District Court imposed all of the restrictions of § 7-3-6' of Utah law on the establishment of national banks and the Court of Appeals for the District of Columbia Circuit affirmed, by a judgment without opinion, but cited the opinion of the 10th Circuit, Walker Bank & Trust Co., supra.

2. The National Bcmk Act: Its Background.

There has long been opposition to the exercise of federal power in the banking field. Indeed, President Jefferson was opposed to the creation of the first Bank of the United States and President Jackson vetoed the Act of Congress extending the charter of the second Bank of the United States. However, the authority of Congress to act in the field was resolved in the landmark case of McCulloch v. Maryland, 4 Wheat. 316 (1819). There Chief Justice Marshall, while admitting that it does not appear that a bank was in the contemplation of the Framers of the Constitution, held that a national bank could be chartered under the implied powers of the Congress as an instrumentality of the Federal Government to implement its fiscal powers. The paramount power of the Congress over national banks has, therefore, been settled for almost a century and a half.

Nevertheless, no national banking act was adopted until 1863 (12 Stat. 665), and it was not until 1927 that Congress dealt with the problem before us in these cases. This inaction was possibly due to the fact that at the turn of the century, there were very few branch banks in the country. At that time only five national and 82 state banks were operating branches with a total of 119 branches. By the end of 1923, however, there were 91 national and 580 state banks with a total of 2,054 branches. The Comptroller of the Currency, in his Annual Report of 1923, recommended congressional action on branch banking. The report stated that if state banks continue to engage “in unlimited branch banking it will mean the eventual destruction of the national banking system . . . .” H. R. Doc. No. 90, 68th Cong., 1st Sess., 6 (1924). Soon thereafter legislation was introduced to equalize national and state branch banking. The House Report on the measure, H. R. Rep. No. 83, 69th Cong., 1st Sess., 7 (1926), stated among other things:

“The bill recognizes the absolute necessity of taking legislative action with reference to the branch banking controversy. The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the Federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws.”

This bill failed to pass in the Senate and, although Congress continued to study the problem, it was not until 1927 that the McFadden Act was adopted. The bill originated in the House and, in substance, proposed that both national and state banks be permitted to establish “inside” branches within the municipality of their main banking facilities, in those States that permitted branch banking at the time of the enactment of the bill. H. R. Rep. No. 83, 69th Cong., 1st Sess., 4-5 (1926). The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act should permit “national banks to have branches in those cities where State banks are allowed to have them under State laws.” S. Rep. No. 473, 69th Cong., 1st Sess., 14 (1926). In the subsequent Conference Committee, the Senate position was adopted. State banks which were members of the Federal Reserve System were also limited to “inside” branches. A grandfather clause permitted retention of branches operated at the date of enactment. H. R. Rep. No. 1481, 69th Cong., 1st Sess., 6 (1926). The Act was finally passed on February 25, 1927, and became known as the McFadden Act of 1927, taking its name from its sponsor, Representative McFadden. At the time of its enactment he characterized it in this language:

“As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established among all member banks of the Federal reserve system.” (Emphasis added.) 68 Cong. Rec. 5815 (1927).

During the economic depression there was much agitation that bank failures were due to small undercap-italized rural banks and that these banks should be supplanted by branches of larger and stronger banks. The Comptroller of the Currency advocated that national banks be permitted to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S. Res. No. 71, 71st Cong., 3d Sess., 7-10 (1931). Senator Carter Glass held a similar belief and introduced a bill that would authorize national banks to organize branches irrespective of state law beyond and “outside” the municipality of its principal banking house. His proposal was strenuously opposed and was eventually defeated. It was not until the Seventy-third Congress that the Banking Act of 1933 was adopted. Senator Glass, the ranking member of the Senate Committee on Banking and Currency and the dominant banking figure in the Congress, was sponsor of the Act. In reporting it to the Senate for passage, he said, the Act “required that the establishment of branch banks by national banks in States which by law permit branch banking should be under the regulations required by State law of State banks.” 77 Cong. Rec. 3726 (1933). In a colloquy on the floor of the Senate with Senator Copeland as to the purpose of the Act (with reference to branch banking by national banks), Senator Glass said that it would be permissible “in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking.” Moreover, to make it crystal clear, when Senator Copeland replied that “it permits branch banking only in those States where the State laws permit branch banking by State banks,” Senator Glass was careful to repeat: “Only in those States and to the extent that the State laws -permit branch banking.” (Emphasis added.) 76 Cong. Rec. 2511 (1933). Remarks of other members of Congress also indicate that they shared the understanding of Senator Glass. For example, Senator Vandenberg stated that §36 (c)(1) provides “that the branch-banking privilege so far as national banks are concerned shall follow the status established by State law in respect to the State privilege.” 76 Cong. Rec. 2262 (1933). Likewise, Senator Long, who had joined a filibuster against an earlier version of the bill, stated at final passage that “[w]e have only undertaken to secure equal treatment for State banks” and that the bill had substantially achieved that result. 77 Cong. Rec. 5862 (1933). In similar tone, Representative Bacon stated that branches of national banks may be established provided “this is permitted by the laws of that State and subject to them.” (Emphasis added.) 77 Cong. Rec. 3949 (1933). And Representative Luce, a member of the Conference Committee, reported to the House:

“In the controversy over the respective merits of what are known as 'unit banking' and 'branch banking systems/ a controversy that has been alive and sharp for years, branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches.” 77 Cong. Rec. 5896 (1933).

As finally passed, the Act permitted national banks to establish outside branches if such branches could be established by state banks under state law. It is well to note that the same Act also removed the restriction on outside branch banking by state member banks previously imposed by the McFadden Act.

3. The Policy of Competitive Equality.

It appears clear from this résumé of the legislative history of 136(c)(1) and (2) that Congress intended to place national and state banks on a basis of “competitive equality” insofar as branch banking was concerned. Both sponsors of the applicable banking Acts, Representative McFadden and Senator Glass, so characterized the legislation. It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcefully expressed by both friend and foe of the legislation at the time of its adoption. To us it appears beyond question' that the Congress was continuing its policy of equalization first adopted in the National Bank Act of 1864. See Lewis v. Fidelity & Deposit Co., 292 U. S. 559, 565-566 (1934); McClellan v. Chipman, 164 U. S. 347 (1896); Chase Securities Corp. v. Husband, 302 U. S. 660 (1938); Anderson Nat. Bank v. Duckett, 321 U. S. 233 (1944).

The Comptroller argues that Utah’s statute “expressly authorizes” state banks to have branches in their home municipalities. He maintains that the restriction, in the subsequent paragraph of the statute limiting branching solely to the taking over of an existing bank, is not applicable to national banks. It is a strange argument that permits one to pick and choose what portion of the law binds him. Indeed, it would fly in the face of the legislative history not to hold that national branch banking is limited to those States the laws of which permit it, and even there “only to the extent that the State laws permit branch banking.” Utah clearly permits it “only to the extent” that the proposed branch takes over an existing bank.

The Comptroller also contends that the Act supersedes state law only as to “whether” and “where” branches may be located and not the “method” by which this is effected. We believe that where a State allows branching only by taking over an existing bank, it expresses as much “whether” and “where” a branch may be located as does a prohibition or a limitation to the home office municipality. As to the restriction being a “method,” we have concluded that since it is part and parcel of Utah’s policy, it was absorbed by the provisions of §§ 36 (c)(1) and (2), regardless of the tag placed upon it.

Affirmed.

       The National Bank Act, 44 Stat. 1228, 12 U. S. C. §§36 (c)(1) and (2) provides:
      “(e) A national banking association may, with the approval of the Comptroller of the Currency, establish and operate new branches: (1) Within the limits of the city, town or village in which said association is situated, if such establishment and operation are at the time expressly authorized to State banks by the law of the State in question; and (2) at any point within the State in which said association is situated, if such establishment and operation are at the time authorized to State banks by the statute law of the State in question by language specifically granting such authority affirmatively and not merely by implication or recognition, and subject to the restrictions as to location imposed by the law of the State on State banks.”

       Utah Code Ann., Tit. 7, c. 3, § 6 (1965 Supp.), provides:

        “7-3-6. Business conducted at banking house — Branching of offices — Violation of section a misdemeanor. — The business of every bank shall be conducted only at its banking house and every bank shall receive deposits and pay checks only at its banking house except as hereinafter provided.
      “Except in cities of the first class, or within unincorporated areas of a county in which a city of the first class is located, no branch bank shall be established in any city or town in which is located a bank or banks, state or national, regularly transacting a customary banking business, unless the bank seeking to establish such branch shall take over an existing bank. No unit bank organized and operating at a point where there are other operating banks, state or national, shall be permitted to be acquired by another bank for the purpose of establishing a branch until such bank shall have been in operation as such for a period of five years.”

       Board of Governors of the Federal Reserve System, Banking Studies 15, 428 (1941).